Race: time to be open

Published shortly before last month’s Journal went to press, the report by the Law Society of Scotland’s Racial Inclusion Group (“RIG”) on the experiences of BAME members of the profession in Scotland generated considerable headlines.

Many of these featured President Ken Dalling’s warning that parts of the report would “shock and upset” many members, and his call for action on the part of all in the justice sector to help bring about change. But did the group find a uniform pattern across the profession, or is the picture more nuanced? We spoke to RIG convener Tatora Mukushi (pictured) in order to dig a little deeper.

The RIG was set up with the specific remit to produce the report, and publication completes its current work – though the last of its 60 recommendations is that the group be reconvened after a suitable time to review progress. Its 14 members ranged in seniority from trainee to partner, with one advocate and one law lecturer, and from a range of ethnically diverse backgrounds.

As instructed in its remit, it took as its starting point the Society’s Profile of the Profession survey, sought out other data sources, and gathered experiences from more than 150 BAME practitioners, trainees and law students – among 215 respondents to a survey on experiences of bias – to all of which the group applied its lived experience to build an overall picture. “Although we had an open door policy, we were pretty proactive and we did seek out specific voices, organisations, and some individuals as well,” Mukushi confirms.
It followed this by speaking to, among others, universities, law firms, in-house counsel and bodies such as Scottish Courts & Tribunal Service to discuss best practice, the challenges, and possible ways to overcome the latter.

A structural problem?

A recurring phrase in the report is “structural unfairness” (or “structural disadvantage”) in the profession.

I ask Mukushi how this was identified.

“That’s the biggest question, I guess,” he replies. “If you look at people’s journeys through the profession, there’s a tapering, so from people at university level, to diploma level, trainees, assistants, associates, it does taper quite sharply for ethnic minorities in a way that it doesn’t for other groups. Because it’s quite consistent, it suggests that in the profession as a whole, we have something that is causing, or at very least is correlated with, that tapering.”

A closer look suggested a number of contributing factors. Unpaid internships, which can be a necessary precursor to a traineeship, may be unaffordable to a higher proportion of BAME students. Even paid internships may be problematic for some. At application and interview stage further into their career, people may be filtered out simply on the basis of their name. “There is plenty of evidence from the literature review of algorithmic measures in recruitment sifting that did the same thing, an inherent like for like bias: people go with what they know, they keep on recruiting the way they always have and therefore some people miss out,” Mukushi explains. “It’s not that there is one overlord pulling the strings, but the institutional nature of it is that these things are embedded and it’s quite hard to filter them out.”

Some people have found their disadvantage compounded by a number of factors. Sex or gender is identified in the report as a big issue. Some who identify as Muslim women, for example, could find themselves excluded simply because they look distinctive; someone who doesn’t drink because of their religion or cultural practice could feel excluded from work events, “and if you’re a woman such atmospheres can be problematic in a way that they wouldn’t be to someone who is far more homogenous to Scotland”.

Further, whereas large firms have set processes, and can capture and analyse data from recruitment rounds, smaller firms may not have the resource or the ability to do likewise. This was evidenced during the recent scheme to support trainee recruitment in legal aid firms: “recruitment had to be done on a particular basis, using a set form, and a lot of firms had never done such a formal practice before”. At the same time BAME solicitors tend to be concentrated in practice areas more associated with smaller firms – immigration, crime, mental health, “which itself reveals a sort of bias”, Mukushi adds.

Shock and upset

I ask whether Ken Dalling’s comment about shock and upset reflected the group’s own feelings on their findings – or did these not come as a surprise?

“That’s a tough one,” Mukushi replies. Having previously practised in England, he personally was somewhat shocked on coming to Scotland to discover just how sparse the BAME element in the population is by comparison. On top of that, “it was quite saddening that even with smaller numbers the same sort of pattern was emerging where people were being discouraged from the profession and from potential careers they could have”.

He continues: “From what I knew of the profession in advance, I thought people were generally quite openminded, and that is the case with most of the individuals I have met within the profession, although I knew that institutionally that might translate differently. So I was a bit disappointed to see the institutional thing following the same trend. But overall, yes, there were shocking and upsetting things, but I also found a lot of willingness to innovate: people really wanted to engage with our work and see where they could improve.”

Speaking of England, a chapter in the report is headed “What can we learn from the experience of our counterparts in England & Wales?” Compared with most other chapters, however, it concludes with fewer recommendations. Does that mean England suffers from the same problems, only on a bigger scale? “Not exactly,” Mukushi laughs, “but because they have much larger numbers it almost feels as if they are worse off – you feel that if you have the numbers you should be able to pull the strings.

“There is a tendency, and this is not just in law, to think of ourselves as a smaller scale of England. And our work definitely showed that we are not just on a smaller scale. There are similar trends, but also different things that can be done; and attitudes to progress, to innovation here were certainly on the whole more positive.

“I think what we can learn is, let’s not always base ourselves on England, because what the data teach us is that we probably have some unique strands to our problems that we could use to our advantage, because we are smaller numbers, and we are starting with data.”

Message for all of us

About half of the 60 recommendations are addressed principally or jointly to legal employers, covering everything from targeted outreach to BAME students, to critically evaluating recruitment processes, keeping various types of diversity data, tracking career progress, facilitating changes of trainee seats and post-qualifying practice areas, mentoring, setting key performance targets for themselves as employers, and generally encouraging discussion of race issues.

Recommendation 34, however, contains a series of points for all lawyers as individuals to take to heart. It comes at the end of the chapter on experiences of racism and discrimination. Here a term in play is “micro-aggressions” – particular behaviours, individually perhaps minor, that have a cumulative impact on the BAME lawyer: a “death by 1,000 cuts” is one quote from the report.

I ask whether these are as big a problem as anything. Do they indicate a need for people to undergo bias training to try to eliminate them? Would that make the biggest difference?

Here, it appears, views in the group were mixed. But these micro-aggressions, which can be entirely accidental, or even well meaning – “People can be doing something quite well meaning and it can be the wrong response,” Mukushi points out – are symptomatic of the bigger problem in our culture. And the way to tackle it, he is certain, is through “a culture of openness, of integrity, of accountability, and again this is an ongoing conversation – I would like the profession as much as possible just to engage in the conversation and feel that it’s theirs to have, across the board”.

He is “not 100% sold” on unconscious bias training. “What I would say is if you appreciate a bias in your firm or your practice or among your partners, if you are willing to address it and you think you can find an unconscious bias trainer or awareness that helps, then go for it. But the solution needs to hit the problem, and unconscious bias training is still somewhat untested, to my knowledge anyway. People need to feel that they are reaching valid solutions to their problems. And the first of those is openness and conversation.”

So the most important thing that individuals and firms should be doing, is just encouraging this openness? “Absolutely, without a doubt, across the profession, in firms, in courts, in robing rooms, everywhere. The more conversation is had, the more people can learn and discern what it means when they say things. Taking offence when none is meant is tragic. Taking offence when it is meant is also tragic, but if we can avoid at least one...”

On the journey

Is he satisfied with the Society’s own response in its action plan? “Yes, I’m satisfied that they are beginning on the journey, because they did set up the group in the first place. And they had the data, so they have taken this seriously and have invested time and money and resource into it. And if the members of the profession are willing to give it their support and enthusiasm then yes, I can’t really ask for more.”

He concludes: “I can’t stress enough, the willingness to be open is so important. We are in an age where culture wars could quite easily enter these conversations. As lawyers we already have our own lexicon, we have traditions, lots of things some of which can facilitate these kind of conversations, and some of which can get in the way.

“The need for willingness to innovate, to step out of our own comfort zones, can’t be overstressed. I’m maybe overconfident in my profession, but I think we are intelligent people who want to do better, and we should be able to.”

Download a copy of the report.