T What Does It Mean to Be Anti-Racist in a Profession Full of Privileged People?

WHAT DOES IT MEAN TO BE ANTI-RACIST IN A PROFESSION FULL OF PRIVILEGED PEOPLE?

By Master Leslie Thomas, from a lecture delivered via webinar on Monday 15 February 2021.

Let me tell you a story. As I entered the courthouse, I had to pass through security. There was a reasonably long queue. I got into line, had my robes under my arm, my wig on top of my papers, which were tied with the traditional pink ribbon – the trademark and badge of recognition for the jobbing barrister. Many of the people entering the courtroom who were waiting in line looked like me. We shared the same skin colour: black. However, it was clear to me that these people were not lawyers waiting to get into court, but more likely to be court users, members of the lay public, either claimants or defendants, or friends and family of claimants or defendants, or perhaps even witnesses.

There were white faces, too. Some of the white faces were also members of the public, or their friends, family or potential witnesses. Other white faces were lawyers, and they had the same dress code as me. The reality is you cannot miss a brief in court. Many of the white barristers were called upon by the security staff and ushered through. No security guard called me to the front, like my white counterparts. Eventually, I got to the front of the line. I was asked by the security guard what my business was at court. I explained the case I was appearing in. I was then given a solid patdown search, despite the fact that the security scanner had not gone off. My bag was thoroughly searched. I thanked the security guards for their time. I smiled with them. They did not smile with me. I then proceeded to my courtroom.

Let me start with some definitions. When I refer to ‘black’, I am not using this term in the 1970s meaning of political blackness, meaning all non-white people who have a common fight against discrimination, and thereby embodying people of African, Caribbean and Asian descent, and other minorities. I personally prefer to use the term ‘people of African heritage or descent’. But the word ‘black’ is very much ingrained in our lexicon, so I might use that as well. But if I want to refer to the ethnic majority in the world population, I shall use the expression ‘people of colour’.

So, what does it mean to be anti-racist in a system so full of white privilege? Few of us know much about our racist history. It is quite literally whitewashed. As Akala mentioned in his book Natives, Race and Class in the Ruins of Empire: “Firstly, we have to be appreciative and have some understanding that our history and system of laws defended a tyrannical empire for many hundreds of years in which human trafficking, enslavement of people, rape and murder of an entire race of people based upon skin colour was lawful and justified.”

We have a system of laws, which used to see humans as mere chattels. During my lifetime, education and career, we had the ‘sus’ laws; we had a government which refused to outrightly condemn a racist, apartheid system, and even sought to encourage trade with the racist South African government. I believe it is important to understand some of the historical reasons for the differential treatment of black people, and why this may continue to this day.

The professionalised Fire Court Bar helps the Court to do its business and brings more people to the table, willing to mediate a solution, rather than to have the Court try to adjudicate a dispute with unwilling parties.

In Akala’s Natives, he states: “For black children in Britain, our bodies commit the sin of reminding people racialised as white of an uncomfortable truth about part of how this nation became wealthy, and that the good old days when white power could roam the earth unchallenged are over. They now have to contend with one of their empire’s many legacies – a multi-ethnic mother country.”

Anthony Lester and Geoffrey Bindman referred to a widely published lecture delivered in 1969 by Lord Radcliffe, which echoed a theme of the foreign character of Britain’s black communities. Lord Radcliffe was reported to have said that black communities were the ‘guests’ of the white host community; that they were a largely alien wedge; that they carried with their colour a flag of strangeness; and that all their strangeness implied that they were rather colonies of immigrant workers and immigrant settlers in the full sense, many of whom would one day return to their homeland (Lester and Bindman, 1972).

Even in the 2020s, we still have images for these racist views. Men of African heritage in their encounters with the police are often described as powerful, with superhuman strength, needing several police officers to help restrain them. There has been a real discussion about race in the public discourse, following the horrific killing of unarmed black men, particularly the death of George Floyd whose death was captured on video. This has led us to ask questions about race discrimination and racism and how to be antiracist and live and work in a truly anti-racist way.

Racism and discriminatory behaviours pervade all levels of society and our legal system. Differential treatment of people of colour occurs at all levels in the legal system: in encounters with the police, decisions as to whether to charge or not, bail or not, the way that they are prosecuted, type of sentence and length of sentence, treatment in prison, how they are disciplined in prison, whether they receive parole decisions, and so on.

Differential treatment of people of colour occurs at all levels in the legal system: in encounters with the police, decisions as to whether to charge or not, bail or not, the way that they are prosecuted, type of sentence and length of sentence, treatment in prison, how they are disciplined in prison, whether they receive parole decisions, and so on.

The Lammy Review in 2017, in which David Lammy analysed the disproportionate treatment of ‘BAME’ people in the criminal justice system, makes for depressing reading. Some of the statistics will come as no surprise to anyone who has been following the news, such as the fact that black people are six times more likely to be stopped and searched by the police than white people. But it’s not just the police who have a race problem, because in our judiciary BAME defendants were 240 times more likely to be given a prison sentence for a drug offence than white defendants. Interestingly, the review also found that there is no evidence to suggest racial bias in juries’ decisions to convict or acquit, suggesting that our judges have a bigger race problem than our juries do.

Under the Equalities Act of 2010, there is a general duty required of public bodies in the exercise of their functions to pay regard to the need to eliminate unlawful discrimination, harassment and victimisation, and any other conduct that is prohibited by or under the Equality Act. However, the public sector equality duty does not apply to the exercise of judicial functions; arguably, it should. The legal profession, particularly the senior parts of the profession, lacks meaningful racial diversity. The Diversity at the Bar 2019 statistics and the Bar Standards Board’s figures, last year, make very uncomfortable reading. It has long been well known that there is an under-representation of people of colour in the Chancery and Commercial Bar, and in other specialist sectors. In 2021, there are still no full-time black male High Court judges. There are no black Court of Appeal judges. There are no black Supreme Court judges. The time for talking is over. These facts are there to be considered and analysed.

So, does our profession truly believe in a modern, diverse and representative Bar? To answer this question, there is a preliminary question, namely: are we prepared to embrace the fact that there are problems? The concept of institutional racism was coined in 1967 by Carmichael and Hamilton. That brings me on to the Stephen Lawrence Inquiry by Sir William Macpherson. Let me quote from Macpherson’s report:

“Unwitting racism can arise because of a lack of understanding, ignorant or mistaken beliefs. It can arise from well-intentioned but patronising words or actions. It can arise from unfamiliarity with the behaviour or cultural traditions of people or families from minority ethnic communities. It can arise from racist stereotyping of black people as potential criminals or troublemakers. Often this arises out of uncritical self-understanding, born out of an inflexible police ethos of a traditional way of doing things. Furthermore, such attitudes can thrive in tightly knit communities, so there can be a collective failure to detect and to outlaw this breed of racism.”

For the purposes of our inquiry, the concept of institutional racism which we apply consists of the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in the processes, attitudes and behaviour which amount to discrimination through unwitting prejudice. Without recognition, and action to eliminate such racism, it can prevail as part of the ethos or culture of the organisation. It is a corrosive disease.

To discuss diversity and improving diversity, particularly as it concerns race, there needs to be proper and honest discussion about racism. We as a profession have to move beyond seeing racism as individual characteristics. We need to understand racism as a system, not an event. There is a lot of guilt and ‘head placed in sand’ over the fact that the white majority ethnic group in our society have a distinct advantage over minority groups because of concepts such as privilege bias and, at times, blatant and unwarranted discrimination. Recently, I wrote in Counsel magazine:

“It’s a flawed and outdated view of racism to believe that the racist is an individual who consciously does not like people based on race and is intentionally mean to them. Such definition is a reflection which protects the system. When our profession recognises that racism doesn’t necessarily come from individuals, doesn’t need to be conscious, doesn’t need to be intentional, we will be moving in the right direction. Racial injustice and racism isn’t a simple binary question, the racist needn’t simply be bad, ignorant, bigoted, prejudiced or old. The non-racist isn’t necessarily the good person, educated, progressive, open or fair-minded, wellintended, or young. This discussion goes well beyond this.”

It’s a flawed and outdated view of racism to believe that the racist is an individual who consciously does not like people based on race and is intentionally mean to them. Such definition is a reflection which protects the system. When our profession recognises that racism doesn’t necessarily come from individuals, doesn’t need to be conscious, doesn’t need to be intentional, we will be moving in the right direction.

If you recognise that systems and structures were designed to disadvantage marginalised groups, the expectation should then be that those in the dominant group use their access privilege as an opportunity to make way for those that the same access privilege and opportunity has been denied. Acknowledgement and acceptance of the truth, no matter how uncomfortable.

As Peggy McIntosh points out in her book, On Privilege, Fraudulence, and Teaching as Learning:

“I think whites are carefully taught not to recognise white privilege, as males are taught not to recognise male privilege.”

Turning to the anti-racist approach – what does it mean to be anti-racist? Ibram X Kendi says:

“Racist: one who is supporting a racist policy through their actions or inaction or expressing a racist idea.

Anti-racist: One who is supporting an anti-racist policy through their actions or expressing an anti-racist idea.”

The anti-racist is not afraid to discuss this as an issue, but he will be met with the following charges: “Why do you need to keep on talking about it?” Racism is like a cancer: you cannot ignore it, it needs attention if it is to be treated, and sometimes it just needs to be cut out. The anti-racist, particularly if she is a person of colour, will be told, “Stop playing the race card.” This is saying, if you are an ethnic minority and things do not go your way, then it is the easy excuse for whatever shortcomings you are trying to hide.

Or we might be met with, “You have a chip on your shoulder!” What exactly does this mean? People have a racial chip on their shoulder, have the wrong outlook, and people like that will never get anywhere in life with an attitude like that. Why should we be accused of this because we draw attention to and highlight obvious inequalities and unfairness that affects an entire race of people. It turns the problem back on the person. You see, the privileges of whiteness are often taken for granted, and not understood by those upon whom it is bestowed. You see, you can make it to the top of your profession, and yet still be harassed because of the colour of your skin. So, what is white privilege?

“The reality that a white person’s whiteness has come – and continues to come – with an array of benefits and advantages not shared by many people of colour. It doesn’t mean that I, as a white person, don’t work hard (I do) or that I haven’t suffered (well, I have known struggle), but simply that I have received help, often unacknowledged assistance, because I am white” (John Greenberg).

So where do we go? And what should we do? New Zealand lawyer and mediator Paul Sills provides some answers. He argues that diversity is important because it is beneficial to have individuals of various talents within the group, company or social setting. Sills concludes that people who have grown up in multicultural societies often find it not only normal but desirable to live with people of different backgrounds. Diversity is not merely tolerated but something to be actively sought out. Sills’ arguments are powerful and persuasive, and we all have to embrace these arguments. It is the job of this profession to acknowledge and present these arguments persuasively and convincingly in an anti-racist way.

Let me say something about indifference, as I come to the end of this talk. “Neither love nor terror makes one blind. Indifference makes one blind.” That is what James Baldwin wrote. We can all achieve equity and equality among people. It is not going to be easy, but, as Baldwin wrote: “Those who say it cannot be done are usually interrupted by others doing it.”

Professor Leslie Thomas QC

Garden Court Chambers Professor of Law, Gresham College

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For the full video recording of this lecture: innertemple.org.uk/lectures