BAME representation at the bar

5 August 2020 by Guest Contributor

After the killing of George Floyd in Minneapolis in May, we published on this blog a short statement and an in-depth article by Michael Paulin examining systemic racism in the legal system.

The UK Human Rights Blog is committed to continuing to raise awareness of the vital issues that were brought to public attention in May and June. In this piece, we look at diversity at the bar, with particular focus on the commercial bar.

This article is largely an edited version of a piece which appeared in The Lawyer online in April this year and may be found here. We are very grateful to The Lawyer and to Harry Matovu QC for their kind permission to reproduce that content here.

Although a record number of black and Asian minority ethnic (BAME) barristers were awarded silk status this year (a total of 22), there is still a large diversity gap in the industry. BAME barristers accounting for just under 8 per cent of the QC population overall, according to the latest figures from the Bar Standards Board (BSB). Within the commercial bar, the representation of BAME barristers is particularly low, with only 8 per cent of barristers at a range of leading commercial sets being BAME.

The umbrella term of BAME also requires nuance. According to the BSB, of the 3,364 BAME barristers in this country, 1,497 are Asian or mixed, while 479 barristers are black. The difference is even greater at silk level; just 20 of the 149 BAME silks are black.

In a nutshell, therefore, BAME barristers as a whole are underrepresented, and under that umbrella, the representation of black barristers and silks is particularly low.

Harry Matovu QC, who practises at Brick Court Chambers, argues that the commercial bar’s record on ethnic diversity and inclusion is not good enough:

I have practised at the commercial Bar since 1989, and for decades I was the only barrister of black heritage in the six sets mentioned.  The pressures of work at the commercial Bar are well-known and being the only black face on parade in court, in conference, in solicitors’ offices and at marketing events over 30 years takes a certain toll.

That is the case even for someone like me, who was lucky enough to have parents who sacrificed much to give me a public-school and Oxbridge education. And it is depressing to be told on top of this, as I learnt from my clerks in my early years, that I had not been considered for a case because the solicitors felt that their client would not accept a black barrister.  One wonders how many times this will have happened silently or even unconsciously across one’s career.

Well, now there are four of us at the commercial Bar of visibly black heritage – four out of 580 barristers across these six sets, four in 30 years.  There are, of course, several very successful commercial barristers of Asian heritage.

The well-recognised phenomenon of racial stereotyping may be one reason why there have been more Asian-heritage than black-heritage commercial barristers over the years. But contrary to the common stereotype, there are plenty of very bright, highly educated black students in the universities who are interested in a career in the law and at the Bar.

It defies common sense to suggest that only four such people in 30 years have had the necessary qualifications and abilities to make a career at the Commercial Bar.  That is like saying that only one black person has ever had the ability and attributes to become President of the United States.

But little is done to persuade these bright, ambitious young people that the commercial Bar is diverse and inclusive, a place where they could truly belong, and where they could grow to their full potential.  And so they look elsewhere.  That is exactly what my sons’ university friends tell them.

The obvious lack of black representation at the commercial Bar and in City disputes practices raises serious questions about recruitment practices, career progression and unconscious bias.

Regrettably, until now the commercial Bar has not made any proper attempt to examine these questions, although I know that my Chambers is now doing so through its equality and diversity, pupillage and executive committees.  The world has changed.

The global banks and corporations are now increasingly demanding evidence from their professional service providers of practical action to address diversity and inclusion, and solicitors are in turn beginning to require the same evidence from barristers’ chambers.

The commercial sets can no longer assume that data on women at the Bar or the holding of annual open days for state schools, important as they are, will be accepted as a demonstration of commitment to diversity in all its forms, including ethnic diversity.

At my level of seniority, I feel I can now draw attention to the long failure of the profession to address black representation at the commercial Bar and in other areas of work which fall outside the stereotype of the black barrister.

But I know how difficult it is for anyone more junior to do so – I’ve been there.  In any event, as Joaquin Phoenix said recently in his BAFTA acceptance speech, it must be the responsibility of the majority, not the minority (in this case, four individuals), to speak out and take real action on this.

In July it was announced that six commercial sets (Blackstone, Brick Court, Essex Court, Fountain Court, One Essex Court and Three Verulam Buildings, supported by the Commercial Bar Association) have launched a joint mentoring scheme. The aim is to assist people from underrepresented groups (including BAME but also other vulnerable groups) to succeed at the commercial bar and it will run between November of this year and June 2021. More information about the scheme can be found here.

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