Incoming Bar chair: “I was wrong to be colour blind in approach to race”

Fenhalls: We all have a responsibility to ask difficult questions of ourselves

The incoming chairman of the Bar Council said last night that he had been wrong to approach the issue of diversity at the Bar by trying to be “colour blind” and almost disregard it.

Mark Fenhalls QC also said the Bar needed to be a lot more organised post-pandemic if it was to retain its culture.

In his inaugural speech, which took place at Gray’s Inn, Mr Fenhalls cited two major recent studies that exposed diversity problems.

The Bar Council’s Race at the Bar report said the evidence was clear that barristers from ethnic minority communities and backgrounds, and especially women, faced systemic obstacles to building sustainable careers, and a more hostile and fatiguing working environment than White colleagues.

A Northern Circuit report, meanwhile, found that more than half of ethnic minority barristers on the circuit have experienced racial discrimination at the Bar, legitimised by the “silence and inaction” of others.

Mr Fenhalls, a former chair of the Criminal Bar Association who practises from 23ES, said: “The data is clear and there is no room for inaction.”

He recounted how, for many years, “I thought the right thing to do as a well-meaning, liberal, privileged white male was to be colour blind and treat everyone equally. To say nothing and almost disregard the question of race”.

He continued: “I now believe I was wrong. All of us have a responsibility to ask difficult questions of ourselves – what are we doing to address this?

“In 2022 I will do everything I can to continue to drive this action forward and promote greater diversity at the Bar.”

At the same time, he said there was “much to celebrate” in the outreach activities already undertaken by the inns, the circuits, the specialist Bar associations, many chambers and the Kalisher Trust.

“All of us are working to try and improve access to the Bar from under-represented communities,” he said.

While the Bar Standards Board and Legal Services Board are also active on diversity, Mr Fenhalls argued that “the task of regulators is to set and enforce minimum acceptable standards”.

He continued: “The role of the professions is to identify and promote excellence and best practice as the Bar Council and Northern Circuit reports have done. That is, after all, the purpose of a profession.”

The profession should take the lead on diversity to avoid “duplication and unnecessary increased regulatory costs” and also because change was more likely to happen if barristers saw it as “desirable and necessary, voluntary rather than imposed from the outside”.

In a wide-ranging address that also took in the usual arguments around legal aid and court backlogs, Mr Fenhalls said the impact of the pandemic meant “we owe our pupils and junior tenants a duty to think again about their training, and how we support them in their early years”.

He explained: “We must ask ourselves how we can recreate that sense of chambers where you could walk in, find people, and knock on any open door.

“There are no easy answers. The challenge only grows because the average age of pupils approaches 30 and the average barrister is now approaching 50.

“So, what can we do? I suspect a common theme will be the need to recognise that spontaneity will not work. There is little point dropping in to chambers as one might have done not so long ago, expecting to bump into any number of friends to have lunch, a cup of tea, or an early evening drink.

“I think we are all going to have to be a lot more organised if we want the culture of the Bar to survive.”

One aspect of this was rethinking chambers in the wake of the pandemic. “How can they repurpose it so that it becomes more attractive and easier for barristers to maintain the vitality and health of chambers?”

Mr Fenhalls also hoped that early next year the Bar Council would be encouraging all chambers to set ambitious environmental targets, and to reach net zero by 2030.

“As part of this process, where carbon cannot be reduced, we should explore an offsetting fund that will enable chambers to offset both historical and current emissions.”

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