I joined SHU Law a couple of months ago, after finishing Bar School in 2006, and being in private practice litigating and acting as a higher rights advocate in the period in between. I am still learning to navigate the university’s systems, as I gather many newcomers do, having been away from academia for many years. I’m old enough to have been at Bar school when paper-based research was still dominant. Impressive-sounding delegates from LexisNexis would come in to tell us about a new online tool that would revolutionise how we researched the law.
The legal sector still clung in the years that followed to paper bundles, and postal systems including the DX Document Exchange. The unseen burdens of this stubbornness, however, fell on to administrative staff, and those practitioners who could not afford administrative support. It was therefore particularly galling when, as the covid-19 pandemic hit, e-filing services, and other arrangements to divest from paper use became enabled almost overnight. That is not to underestimate the efforts made by IT teams and others to smooth the transition itself, but the impression we had been given as practitioners over the years was that there was some rationale behind adherence to paper-based systems. There wasn’t. I spent a significant amount of the pandemic’s early stages furiously watching Youtube tutorials on how to collate PDF bundles. This comes down to being part of a sector that has been very late to abandon its tired old ways.
These ways, however, are by no means limited to how we as a profession have used technology. Lord Justice Singh, in his 2018 Mota Singh lecture entitled Racial Equality and the Law, drew attention to the “structural features of our society” giving rise to “differences of income” between Black households and white comparators. The differences remain stark, and we could be forgiven for expecting a legal system – in which equality is a claimed cornerstone – to have anxiously scrutinised the reasons behind this. Lord Justice Singh, who became the first ever non-white Court of Appeal judge in 2017, stated “the reasons are complex and well beyond my expertise”. An even more recent study by the University of Manchester included a foreword by Leslie Thomas KC, who stated:
“Judges need to sit up and listen, because it is a myth that Lady Justice is blind to colour. Our judiciary as an institution is just as racist as our police forces, our education system and our health service – this is something that cannot be ignored for any longer.”
The unconscious bias training proposed in the study has been a limp solution when applied in those other institutions.
Rather than uncritically accepting Lord Justice Singh’s admissions of shortages in expertise, and complexity, let us look at the expertise that does exist, and has existed for decades, if not over a century. This expertise – primarily the work of Black feminists and scholars – has been scandalously ignored in legal discourse. My authorship of this article as a cishet man is a symptom of this scandal. One of the most promising aspects (on the plus side) of my role at SHU Law since I have joined is working with our two race ambassadors, Mariam and Kayleigh. It has not been difficult – sadly – to pick out casework in which clients face racial discrimination in the environment I focus on: prisons. Are the disparities in treatment they face too complex and beyond our expertise for us to act?
It is easy for us to exceptionalise what happens in the US. The criminal justice system on that side of ‘the Pond’ features much more heavily in our cultural diet, than the highly secretive goings on in our own prisons. ‘At least we’re not like that’, we might say. In England, and particularly Wales which has resisted becoming a modern-day penal colony, there is greater disproportionality in the number of Black people in prisons than in the United States. Shocked? It is not as if the data has not been in the public eye for years. Once we accept there has been a proactive avoidance when it comes to analysing the data, whether in courts or elsewhere, we can begin to address what to do now.
Going back to the US, at a conference in 1979, Audre Lorde (who in June 2019, was one of the inaugural fifty American “pioneers, trailblazers, and heroes” inducted on the National LGBTQ Wall of Honor within the Stonewall National Monument (SNM) in New York City’s Stonewall Inn) gave a lecture, now best known as an essay entitled “The Master’s Tools will Never Dismantle the Master’s House”. She said:
“…I stand here as a Black lesbian feminist, having been invited to comment at the only panel at this conference where the input of Black feminists and lesbians is represented. What this says about the vision of this conference is sad, in a country where racism, sexism and homophobia are inseparable”.
We would expect these intersecting forms of discrimination, for which legal scholar Kimberlé Crenshaw later coined the term ‘intersectional discrimination’, to have featured heavily in the judgments of the European Court of Human Rights. Prepare for another shock. The first case to address intersectional discrimination against a Black woman of African descent has come over 50 years after the Court was established. For all the bluster between legal commentators about the court’s role in either advancing or eroding justice, this point is – with few exceptions – missed altogether.
It is with this in mind that my excitement about being at SHU Law – tempered (I hope) with a healthy degree of pessimism – should start to make sense. SHU Law is a pioneering teaching law firm, and the values of the Helena Kennedy Justice Centre that it serves include nurturing critical thinking among students. Without thinking critically, we would accept the record in Strasbourg jurisprudence of anti-racism, for example, as being a positive one. We would be hesitant to explore other strategies when confronting penal authorities about our clients’ treatment in prisons. The work I will be doing as the module lead in their prison clinic, which my colleagues before me have begun with our brilliant students, therefore feeds directly into the Centre’s values. As someone who spent 16 years in legal aid, at pains to draw attention to the false economies of cuts to prison law funding, I am proud to making an (albeit small) contribution to mitigating those cuts. In appreciating the true importance of this work, however, we must resist the cynic’s preoccupation with the price of everything and the value of nothing.