Anti-bias training not whole solution to law’s diversity issue
JOANNE HARRIS
In late September, junior barrister Alexandra Wilson hit the headlines after tweeting about her experience of being mistaken as a defendant by court staff not once, but three times in a single day. ‘I don’t expect to have to constantly justify my existence at work,’ she concluded.
Wilson is mixed-race, and her account was met with a flood of similar stories from other Black, Asian and minority ethnic (BAME) lawyers. Her Twitter thread led to an apology by HM Courts and Tribunals Service Acting Chief Executive Officer Kevin Sadler.
Wilson went on to call for anti-bias training to help people recognise systemic racism.
Training is often the first thing to which an organisation will turn when an issue with diversity or representation is identified. Sasha Scott, CEO of consultancy firm the Inclusive Group, says unconscious bias training has become increasingly popular as companies seek to hold on to business.
‘Unconscious bias training is absolutely helpful if it’s delivered in a way that helps people understand “if I’m human I’m riddled with bias”,’ Scott says.
‘[Training is] good at raising awareness but without further action it may have a limited short-term impact,’ says I. Stephanie Boyce, Vice-President of the Law Society of England and Wales.
UK firms and chambers have been struggling for years to improve their diversity statistics. The latest Bar Standards Board statistical report – published in January – shows that in 2019, 13.6 per cent of barristers identified as BAME. However only 8.1 per cent of Queen’s Counsel were BAME.
Solicitors Regulation Authority data shows that 21 per cent of lawyers in the firms it regulates are BAME. A similar proportion of partners are BAME, but the proportion of BAME partners in the largest firms drops to eight per cent.
‘Far too many people look at the legal profession and think it’s an elitist profession, a profession they don’t belong in and shouldn’t join,’ says Boyce, who next year will become the Law Society’s first ever BAME president.
While acknowledging that anti-bias training may have its role to play in improving diversity, neither Boyce nor Fudia Smartt, a partner at Spencer West and associate at training provider Byrne Dean, think this should be the place to start when addressing what they see as a fundamental problem within the legal sector.
‘Policies and procedures are ineffective if they lack aspiration and if they’re just there for the sake of having a tick-box experience. They have to be meaningful,’ Boyce says.
Instead, she advocates tackling the issue of representation at a much earlier age, to give young people thinking about going into law the tools they need to get them there.
‘Education is a key issue and when you look at the issues affecting law firms, people always start looking at it too late,’ Smartt agrees. She says the profession needs to examine the way it recruits to rid itself of bias.
‘We all tend to like people who remind us of ourselves,’ Smartt adds. ‘You won’t get a diverse talent pool if you don’t carefully consider your selection criteria, and also increase awareness to different groups on how to pursue a career in law from an early age.’
Those working within professional education say today’s law students are increasingly concerned about representation.
‘Many institutions are requiring staff to undertake unconscious bias training as a starting point,’ says Chris Howard, Co-Vice-Chair of the IBA Academic and Professional Development Committee and Director of Professional Legal Education at King’s College London.
‘Equally, all institutions need to examine their admissions procedures and outreach programmes to encourage and support a diverse range of applicants for law programmes,’ Howard adds.
Scott says many firms have tightened up recruitment policies in recent years, to reduce nepotism and introduce contextual recruitment. Moves such as Linklaters’ decision to introduce a target of 35 per cent BAME trainees, starting from the current hiring cycle, are welcomed.
‘The approach taken by Linklaters is the kind of specific, targeted action which is required to enable real change in the short term, given that measures used to date have not had the impact which is needed,’ Howard says.
Boyce says the use of data is critical to improve representation, adding: ‘Data is a huge driver of change and allows us to see where the gaps are.’
She explains that the Law Society of England and Wales is working with the other UK legal sector representation and regulatory bodies to share information and produce long-term, sustainable change.
Smartt calls for top-down leadership, to help the profession create a space to talk about diversity and representation issues. ‘It’s because people don’t have these discussions that misunderstandings fester,’ she adds.
But anti-bias training can still have a place in the debate.
‘I absolutely believe it has a place in increasing representation, but it isn’t the silver bullet. It has to be part of a cohesive strategy looking at how people are viewed. Some organisations get it right because they understand inclusion is about behaviours,’ Scott says.
LPRU launches modern slavery initiative
The International Bar Association’s Legal Policy & Research Unit (LPRU) launched their modern slavery initiative during the IBA 2020 – Virtually Together Conference, with a webinar titled ‘Ending modern slavery: how the legal profession can meet the challenge’.
The webinar started with the presentation of a short film titled ‘Supply Unchained’, which focuses on products with a tainted supply chain. The webinar involved speakers from legal, corporate and non-governmental organisations, as well as including a survivor of modern slavery. They spoke about the issues surrounding modern slavery, looked at the legal gaps and possible solutions, and explored new initiatives that have been established.
Although modern slavery is not defined in law and is instead used as an umbrella term, according to a 2017 report, Global Estimates of Modern Slavery: Forced Labour and Forced Marriage, 40.3 million people were estimated to be victims of modern slavery in 2016. Global supply chains have been under scrutiny for some time and the Covid-19 pandemic has shed light on the urgency with which soft law standards and obligations need to be implemented to protect vulnerable communities. The IBA, together with a working group of experts, will be analysing the legislative framework regarding modern slavery as part of ongoing efforts.
More information on this multifaceted initiative can be found on the new hub page which also has details of reports published by the LPRU, in relation to the rights of migrant children, and the link between human trafficking and public corruption. A recording of a webinar from June 2020, titled ‘The impact of Covid-19 on modern slavery and child labour: how can lawyers make a difference?’ is available to view as well, which looks at the effect the Covid-19 pandemic has had on modern slavery and child labour, and the role of the legal profession in mitigating and addressing the impact of the pandemic, especially in global supply chains.
Find out more about the LPRU’s modern slavery initiative here
High Level Panel of Legal Experts on Media Freedom releases three advisory reports
In November, the High Level Panel of Legal Experts on Media Freedom released three enforcement reports as part of their series of reports that focus on improving mechanisms to enforce international human rights standards. The High Level Panel is an independent body that was convened by the Chair, Lord Neuberger of Abbotsbury, at the request of the Canadian and United Kingdom governments. The International Bar Association’s Human Rights Institute (IBAHRI) serves as Secretariat to the Panel.
The Panel works with leading academic institutions and law firms around the world to provide advice on model elements for the drafting and interpretation of legislation.
The latest reports in the series are as follows:
- A Pressing Concern: Protecting and Promoting Press Freedom by Strengthening Consular Support to Journalists at Risk authored by the Honourable Irwin Cotler;
- Report on Providing Safe Refuge to Journalists at Risk authored by Professor Can Yeginsu; and
- Advice on Promoting More Effective Investigations into Abuses against Journalists authored by Nadim Houry.
The reports were launched at events during the Virtually Together Conference. Members of the High Level Panel, including Deputy Chair, Amal Clooney and IBAHRI Director, Baroness Helena Kennedy QC, took part in the report launches, alongside the report authors and other expert legal professionals.
The first report in the series, Report on the Use of Targeted Sanctions to Protect Journalists authored by Amal Clooney, was released earlier in the year.
IBAHRI calls for release of Iranian lawyer Nasrin Sotoudeh
The IBA’s Human Rights institute (IBAHRI) published an open letter to the Supreme Leader of Iran Ali Hosseini Khamenei on 2 December, calling for the immediate quashing of the sentence of 38 years in prison and 148 lashes given to Iranian women’s and human rights lawyer, Nasrin Sotoudeh. It also calls for the quashing of the six-year prison sentence and two-year travel ban against her husband, Reza Khandan.
The IBAHRI’s letter was written in cooperation with the Raoul Wallenberg Centre for Human Rights, the Center for Human Rights in Iran, and PEN America. In the open letter, the IBAHRI and its co-writers detail how these convictions and sentences clearly violate Iran’s Constitution and its obligations under international law.
Sotoudeh was convicted in 2019 on charges related to ‘national security’ threats and ‘encouraging corruption and prostitution’. The view of the IBAHRI and its co-writers is that these charges are fabricated and follow Sotoudeh’s peaceful advocacy, including her representation of women who removed their headscarves in public. The letter highlights that the sentence against Sotoudeh is the longest imposed on anyone in recent years, simply for advancing the goals listed in Article 3 of Iran’s Constitution, which include ‘the abolition of all forms of undesirable discrimination’.
IBAHRI statement on release of human rights defenders from the Egypt Initiative for Personal Rights
The International Bar Association’s Human Rights Institute IBAHRI) issued a statement on 1 December 2020 joining calls for the urgent release of Gasser Abdel Razek, Mohamed Basheer and Karim Ennarah, who are human rights defenders for the organisation Egypt Initiative for Personal Rights (EIPR). They were arrested between 15 and 19 November 2020, and were held for up to 12 hours without access to lawyers. They were charged with terrorism-related offences and accused of spreading false information through social media.
IBAHRI Co-Chair, Anne Ramberg Dr jur hc said: ‘We are gravely concerned with how Mr Razek, Mr Basheer and Mr Ennarah are being treated under arbitrary detention,’ and urged the Egyptian state authorities to ‘act in compliance with international provisions,’ quoting from the International Covenant for Civil and Political Rights.
IBA and IBAHRI support Greece ending custodial detention of unaccompanied migrant children
On 26 November, the IBA and IBA’s Human Rights Institute (IBAHRI) released a statement welcoming the decision of the Greek government to end the longstanding practice of detaining unaccompanied migrant children in jail cells. Previously, the IBA and IBAHRI has been gravely concerned about the welfare of unaccompanied children detained by Greek authorities for several weeks, sometimes months, in small, overcrowded and unsanitary police station cells across the country, often with unrelated adults.
IBA President, Horacio Bernardes Neto, commented: ‘The increasing number of migrant children arriving in the European Union every year under dire conditions has been an issue I have highlighted during my presidency of the IBA. The IBA Presidential Task Force on the Refugee Crisis Initiative released a report detailing the difficulties faced by refugee and migrant unaccompanied children. Detaining children in jail cells is a punishment, especially after being forced to flee often life-threatening circumstances. The IBA is pleased to hear that the Greek government is to put an end to this unlawful practice and hopes that this decision will be enforced as a matter of urgency.’
Child migrants account for between 40 to 50 per cent of the world’s population each year. While the decision to end detention of unaccompanied minor children is welcome, the IBA and IBHRI urge the need to repeal the existing legal provisions that allow children to be detained in ‘protective custody’. In the statement, the IBA and IBAHRI call on the Greek government to immediately undertake measures to increase shelter capacity, set up alternatives to detention, and establish a functional and comprehensive foster family system.
IBAHRI Co-Chair, the Hon Michael Kirby AC CMG, reminded: ‘Every state must recognise its duty to protect migrant children, upholding their basic human rights and best interests in accordance with the UN Convention on the Rights of the Child.’
Read the IBA Presidential Task Force on the Refugee Crisis report here
Poland: IBAHRI condemns judicial harassment of Judge Tuleya
The International Bar Association’s Human Rights Institute (IBAHRI) released a statement condemning the judicial harassment of Judge Igor Tuleya. On 18 November 2020, the Disciplinary Chamber of Poland’s Supreme Court removed Judge Tuleya’s immunity, which violates the international standards protecting and upholding the independence of the judiciary and constitutes judicial harassment. As a result, Judge Tuleya has been suspended from official duties and has had his salary cut by 25 per cent.
IBAHRI Co-Chair and former Justice of the High Court of Australia (1996–2006), the Hon Michael Kirby AC CMG, commented: ‘The IBAHRI notes that the decision made by the Disciplinary Chamber on waiving the immunity of Judge Tuleya lacks legitimacy as it does not fulfil the criteria for an independent court provided by both national and European Union law (EU Law). Poland continues on its path to further erode the rule of law. Such repressive unsubstantiated action against an independent judge striving to uphold democratic principles and the rule of law are blatant violations of international law and are clear attempts to gain political control over the judiciary. This is a very dangerous path, and it is our duty as an international community to find ways to hold Poland to account.’
Court verdict on Greece’s Golden Dawn party sends ‘message’ to violent groups
JENNIFER VENIS, IBA MULTIMEDIA JOURNALIST
In early October, an Athens court found Greece’s former third-largest political force to be a criminal organisation. After a five-and-a-half-year trial, the former leader and members of parliament (MPs) of the Golden Dawn party were held accountable for violent attacks by members on the group’s perceived enemies, receiving sentences of up to 13 years’ imprisonment.
In a statement, Amnesty International’s Europe Director, Nils Muižnieks, said: ‘This verdict sends a clear message to political groups with aggressive anti-migrant and anti-human rights agendas in Greece and across Europe that violent and racist criminal activity – whether perpetrated by individuals on the street or members of parliament, will not go unpunished.’
But Panagiotis Drakopoulos, Corporate Counsel Forum Liaison Officer of the IBA European Regional Forum and Founder of Drakopoulos Law Firm, based in Athens, says ‘the very extremeness of Golden Dawn’s criminality, which also has neo-Nazi ideological foundations, something not encountered in typical far-right populist parties in other European countries, makes this case unique’.
Golden Dawn’s members are said to have run militias, targeting trade unionists, migrants, refugees and LGBTQI+ peoples. The party’s leadership included Holocaust deniers and Hitler sympathisers.
Seven of Golden Dawn’s 18 former MPs, including its founder Nikolaos Michaloliakos, were convicted of running the criminal organisation, while others were found culpable of participation. In total, 68 people faced charges including Golden Dawn member Giorgos Roupakias, who was convicted of the murder of campaigner and musician Pavlos Fyssas in 2013 and given a life sentence. A member of the prosecution called this the biggest trial of fascists since the Nuremberg trials.
Riccardo Lucev is the Website Officer for the IBA Criminal Law Committee and a specialist criminal lawyer at Cagnola & Associati in Milan. He says that from a technical and procedural standpoint of criminal law, the trial does not set an international precedent. However, he believes that, from a cultural standpoint, the verdict can be ‘a message to any kind of violent group around the world, reminding them that no civilised jurisdiction is available to tolerate violence in any way’.
But the violence of Golden Dawn, which was well-known for years, was legitimised when Golden Dawn were handed 18 parliamentary seats in the general elections of 2012, which followed Greece’s economic crises.
Emboldened, members increased attacks. According to Greece’s Racist Violence Recording Network, there were 154 cases of racist attacks in 2012, including the murder of two immigrants, with a number of incidents attributed to Golden Dawn members.
Critics allege that Golden Dawn’s attacks were often ignored because they predominantly targeted immigrants.
Drakopoulos tells Global Insight that the Greek authorities delayed in addressing Golden Dawn members’ violence effectively. ‘Two factors contributed to this,’ he says. ‘First that Golden Dawn was a political party and Greek law does not provide for a procedure to ban political parties, and second that Greek criminal law does not provide for deterrent sentences in cases of misdemeanours.’
He adds that the delay ended when violence linked to Golden Dawn peaked in three incidents that qualified as felonies, including beatings of Egyptian fishermen and trade unionists in 2012 and 2013 respectively, which qualified as attempted murder, and finally the 2013 murder of Pavlos Fyssas.
The investigation into Golden Dawn’s criminality began alongside that into Fyssas’ murder in 2013. The group’s founder, Michaloliakos, had previously accepted political responsibility for the murder, but denied criminal responsibility. In court, Michaloliakos declared ‘I would like to make clear that, for the first time in our history, since the founding of the Greek state, a party leader faces trial for the actions of a party member’.
Golden Dawn’s own anti-democratic vision of autocracy contributed to accountability for its crimes. Reportedly, Golden Dawn’s founding charter enshrines the ‘leader principle’, used by the Nazis to describe a system where leaders have absolute authority, and this was used to link Michaloliakos to the actions of party members.
Michaloliakos had also complained that Golden Dawn faced political persecution for its ideas. Freedom of expression has important limits, however. ‘Freedom of speech and freedom of thought cannot embrace an idea that aims at destroying them,’ Lucev says.
For Lucev, the problem with accountability arises when violence remains unexpressed, becoming more of a menace to a social group, with the result that even violence against objects might become intimidating. ‘We need to understand that a lower standard of violence should be considered [in law],’ he says. ‘Verbal violence (or violence against property), as well as incitement to hate, can send messages to the population, awakening the worst intentions.’
He adds that tackling the violence of far-right extremism at court is too late, ‘because, at that point, a crime has already been committed’. Instead, he believes we should start fighting ideologies of hate when they are just ideas.
‘This requires addressing and solving the social and economic problems that are the trigger for frustration, anger and violence in the minds of some people,’ Lucev says.