This is a dinner-time talk to students in Gray’s Inn Hall in January 1992 about the work of the Bar’s Race Relations Committee under my chairmanship. I had always insisted on the need to attract the ablest and the angriest of the black and Asian barristers between the ages of 25 and 40 to my committee. I remember my friend and contemporary Sibghat Kadri QC counselling me to the effect that they would all be at each other’s throats, but things did not work out like that, and I think we achieved a great deal, listening to each other and working out the best way in which the Bar Council as an institution might be able to help.
The previous year had seen the day-long meeting in the library of my former chambers at Fountain Court when we planned our future strategies following the delivery of the report on the first-ever survey of equal opportunities within the Bar. The day was facilitated by Sylvia Denman CBE, a member of the new advisory committee on judicial training which I then chaired, and was attended throughout by Tony Scrivener QC, the Chairman of the Bar, who then made the implementation of our policies at the forefront of his efforts during the remainder of his year in office. Tony died earlier this year, and the Bar owes an enormous debt of gratitude to him for the fearless way in which he promoted the policies we were developing.
In my talk I describe that meeting and the events that followed it, culminating in the appointment of the Bar’s first Equal Opportunities Consultant.
 This survey was concerned only with race issues. The Bar Council, spurred on by Helena Kennedy QC, who had just joined its membership, had very recently created a similar committee concerned with gender issues. I first met Helena when she visited me in my room at the Royal Courts of Justice when I told her that she could only make progress if her committee could commission a professional research study into the experiences of women who had either stayed at the practising Bar or who had left it, usually never to return. I said that anecdotal evidence can always be capped by rival anecdotal evidence, and would achieve nothing of any lasting value.
RACE RELATIONS AT THE BAR
An address to students at Gray’s Inn on 28th January 1992
I am very grateful to the Treasurer for giving me the opportunity to talk to you on race relations issues for a few minutes to-night. Five years ago, in 1987, I was made chairman of the main committee which was responsible for overseeing the Bar Council’s policies on race relations. When I became a judge the following year, I was appointed Chairman of the Bar’s Race Relations Committee itself, a job I held till the end of last month. And more recently I have become the Chairman of a new specialist committee which is responsible for giving advice about race issues to those who train judges and magistrates. And all my experience in these three posts has taught me that the search for just solutions to problems which arise from the relations between people of ethnic different cultures is among the most difficult and the most important of the many issues which face the Bar, the Inns of Court and the judiciary in multi-ethnic Britain to-day.
As many of you know, last October the Bar Council adopted a new Race Equality Policy. One of the last things I did before I left the Race Relations Committee was to help pick the new part-time equal opportunities consultant, Marie Stuart, who will be advising the Bar how to implement its new policies. But policies like this do not come out of thin air, and they will not work unless people understand the reasons for them. To judge from what was written in the Press last year, when the policies were first publicised, there is a good deal of misunderstanding about. One of the reasons behind my invitation to speak to-night may be a wish to try and dispel some of the misunderstandings.
What I found when I started my job with the Race Relations Committee three years ago was that there was masses of good will about in high places. The Bar had had a specialist committee, chaired by a High Court judge, advising it on race relations for five years. And a lot of progress had been made in those years in making the Bar a fairer place for black and Asian barristers and entrants to the profession.
For example, the profession’s Code of Conduct now banned all practices which could be proved to be discriminatory on racial grounds; there was a good Code of Guidance which ought to have taught chambers selection committees and barristers’ clerks what to do and what to avoid if they were to behave fairly towards their black pupils and tenants; black and Asian barristers were increasingly to be found in places which had not admitted them before; and above all , a statistically reliable survey was carried out in 1988 which told us what we needed to know as a basis for policy-making. This showed that 6% of the Bar in private practice (344 barristers), 10% of new tenants and 12% of all pupils were non-white. Of these 27% were characterised as West Indian, 19% as Black African, 41% as Asian, 2% as Chinese and 12% as what was called other non- white.
Although the 6% figure was a good one, compared with other professions, when we looked further we saw that one third of all the non-white barristers actually located by the survey were to be found in only six London sets. Ten other sets had between 4 and 9 non-whites, and just over half the total of non-white barristers were located in these 16 sets.
Of the other sets which responded to the survey, 24 had two or three non-white tenants, 67 had one non-white tenant and 189, containing 61% of all the tenants covered by the survey, had no non-white tenants at all. There was found to be a clear relationship between the number of non-white tenants in a set and the proportion of pupillages given to non-white tenants.
Another significant finding in the survey was that “compatibility with other members of Chambers” was rated as one of the most important characteristics which were taken into account when new tenants were selected. I have always regarded this as quite understandable, when I consider the way that sets of chambers operate. However, it does mean that the structure of a profession which is broken up into small autonomous groups of very independent individuals who enjoy each other’s company militates against the introduction of black or Asian tenants into sets of chambers which have never had any such tenants before.
One of the most depressing parts of my job three years ago was to listen to able young black and Asian barristers telling me of the endless stream of rejections they had received when they had sought pupillages and tenancies and of their perception that their white contemporaries with less obvious ability were having much less difficulty in finding places. It was also depressing to hear a barristers’ clerk tell me that he had much less difficulty in getting work from solicitors for a black tenant with an English-sounding name like Smith than for barristers with more obviously non-English names such as Patel or Oluwele , even when he knew them to be more able.
We therefore determined in the spring of 1989 to give greater publicity to these problems. We also decided that the Bar had to take steps to provide itself with its own internal monitoring arrangements, as the 1988 survey had cost £15,000 and any future survey would cost much more. And finally we decided to press for a change to the law, so that a barrister or student who can prove that they were a victim of discrimination could have a right to apply to an industrial tribunal for compensation.
By last summer we had achieved all those aims.
But this was not enough. It was obvious to us that very many sets of chambers and their clerks did not pay very much attention to the new Code of Practice, even if they had ever heard of it, and I continued to hear unhappy stories of the way in which black pupils and young black tenants were continuing to receive unfair treatment compared with their white contemporaries. So we organised an all-day think-tank seminar on a Saturday last March to discuss what further advice we should be giving to the Bar so that its black and Asian members could have a fairer deal. This was the origin of the Race Equality Policy document which was approved just over six months later.
What this document does is to set out six clear, short policy statements: on recruitment, on fair treatment in four key areas (financial help and training opportunities, selection for pupillages and tenancies, the distribution of work, and opportunities for employed barristers), and finally on the promotion of the role and profile of ethnic minority barristers. Under each policy statement, there are a number of recommendations about ways in which the policy should be implemented. But above all we recognised, and the Bar accepted our recommendation, that these problems are far too difficult to be solved by amateur good will alone, and that the Bar needs professional help. This is where the new consultant, who will be engaged on a part-time basis until the end of the summer, comes in.
The more I moved about and listened to people during the course of the job the Bar had asked me to do, the more I realised that what this was all about was not old-fashioned blatant racial prejudice of the kind that was outlawed in this country with the first Race Relations Act. It was about human beings feeling a preference to stick to their own kind. When Sir Sonny Ramphal, the former Secretary-General of the Commonwealth, spoke to the Bar on race relations in December 1988, he spoke movingly how he had been led to the reflection that race is at heart “otherness”, by which he meant a view of another individual which wrongly saw him or her as someone alienated from the observer by perceived or imagined differences. He added:
“And when the question of colour is introduced, it merely becomes a new and potent fact or in distinguishing between groups of people, in identifying the types of behaviour expected of them and in influencing perceptions”.
This is why one of the most important first tasks of the new consultant will be to give chambers expert advice on what they need to do to treat each candidate for a pupillage or tenancy objectively, so that all will start on a level playing field. If they are unwilling to learn modern interviewing and selection techniques which are becoming very widespread among employers who have been taught good modern equal opportunities practice, then there is always the danger that they may finish up without much of a defence before an industrial tribunal when they are charged with unfair discrimination. This happened to a firm of solicitors last year which was ordered to pay £400 to a disappointed Sri Lankan applicant for articles. The Tribunal was influenced by the fact that the firm had not set even minimal guidelines and selection criteria, with a check list applied to all applicants, and that there was no framework to their selection process to ensure equal treatment for all candidates.
You will notice I have said nothing about the 5% target figure which caused such a stir last year. This is, and always has been a target, a benchmark against which success in achieving the policy aims can be measured. It was never, and was never intended to be a quota, and the Race Relations Committee’s attitude to quotas, which are illegal, is just as robust as the attitude of those who misunderstood what the policy was all about and started accusing the Bar of advocating positive discrimination.
I have now left this work, although I have made it clear that my door will always be open, as it has been for the last three years, to any black or Asian barrister or student who wants to come to me for advice. I am now getting much more involved in the training needs on ethnic minority issues of judges and magistrates and those who sit in tribunals.
Three weeks ago, for example, I talked on successive days to two different seminars of crown court judges and recorders on the need, which we all have, to inform ourselves better about matters which are important to people who come from other cultures to our own. I believe that as the years go on the calls on my new committee for advice will grow as more people become conscious of the difficulties which are being posed to our established institutions because Britain is now a multi-ethnic society and there are still too few black an d Asian people in positions of influence to give their peers the kind of expert advice on cross-cultural issues which is badly needed.
I do not have any time to talk about this to-night but I mention it in order to make it clear that it is not only the Bar and the Inns of Court who have a lot of learning to do and that learning about race issues is no longer the preserve of what used to be called left-wing loony councils. These are important issues which affect us all, and we all need to inform ourselves better about them.
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