The Unacceptable Tweet

When I was interviewed during my QC application I was asked why I thought that “Diversity” was one of the attributes that was required in aspirant Silks. Part of my answer was that, as a junior, I had looked to Silks to provide an example. That Silks were not just leading counsel but are, more often than not, the leaders in the profession.

This weekend I have spent a lot of time reflecting how best to react to a Tweet from a fellow member of the Bar, Jon Holbrook. I have debated with myself whether referring to it is amplifying the original Tweet and adds to the issues created by the original post. I have also reflected over issues surrounding free speech.

After that period of reflection I am quite satisfied that I have no choice other than to respond to the Tweet. And to make it clear that it is reprehensible and thoroughly unacceptable.

The context is that Mr Holbrook Tweeted about a case where a schoolchild and her parents challenged a school’s rule about hair which had seen her excluded from the school for periods of time. Her argument, ultimately successful, was that the rule was discriminatory.

His Tweet stated “The Equality Act undermines school discipline by empowering the stroppy teenager of colour” and quote Tweeted a short film about the original complaint.

I repeat – this Tweet is wholly unacceptable coming from a member of my profession.

I have no difficulty at all with Mr Holbrook seeking to debate the rights and wrongs of the Equality Act. I suspect he would be very wrong, yet it is an argument he can try to advance. But this Tweet has three very significant issues.

The first is that it is linked to the story of the young woman in the video. The implied criticism is, contrary to the fact that the school ultimately settled her complaint, that this was a frivolous and unfounded complaint borne out of caprice and not due to direct or indirect discrimination. Mr Holbrook, from the comfort of his keyboard, has implied that the young woman has “played the race card”.

In the BSB Code of Conduct core duty 5 states that “You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.”

The BSB have issued guidance about the use of social media and the interaction with CD 5. For my part it is difficult to see how the Tweet of Mr Holbrook does not demean the complaint made by the young woman. He has portrayed her not as a victim of some form of discrimination but as nothing more than a stroppy teenager who played the race card.

That is not acceptable.

Secondly Mr Holbrook’s Tweet links his perception of the Equality Act being used to undermine school discipline to one protected characteristic and one only. Race.

There are 9 protected characteristics. He does not complain that disabled students undermine school discipline by utilizing the Equality Act. Or students who follow a particular religion. Or male teenagers. It is “a….teenager of colour”.

Race is the one protected characteristic which is singled out as being misused by those bringing complaints under the Equality Act. We circle back to that phrase “playing the race card”. A phrase used to undermine those seeking to redress an injustice.

That is wholly unacceptable.

And finally it is the use of the phrase “stroppy teenager of colour”. It instantly sets the non-white teenager as being different. It sets them as having an advantage over their white peers by this legislation. It makes the accusation that the challenge to an unfair and discriminatory rule is based not out of legitimate complaint but a desire to cause trouble. It instantly diminishes any such complaint.

But it is so much more. “Stroppy”. It almost says “uppity”. It resonates with “know your place”.

It is simply unacceptable.

So what? Why does it matter?

I have read the Tweets that support Mr Holbrook. One of them came from someone who Tweeted that the Equality Act also facilitates BAME candidates being promoted beyond their competence, a view Tweeted by a man who also sought to justify a comparison between people of Afro-Caribbean heritage and primates. Just typing that sentence made rage creep through my body.

Mr Holbrook is not directly responsible for the views of others. His Tweet gives encouragement, however, to those who see the vital protections afforded by the Equality Act as nothing more than an unfair advantage to the undeserving. It is a fuel of racism.

Words matter. How we express ourselves matters. That an advocate should Tweet something which emboldens such a racist to add their support to the Tweet is appalling.

It is not acceptable.

And how would the teenager who is visually different from Mr Holbrook, the “teenager of colour”, who wants to be a barrister feel upon reading Mr Holbrook’s Tweet? Would they feel that this was a profession for them?

That is why it is vital that I, amongst so many others, say that this is not acceptable.

But saying is one thing. It is an important thing. But I feel that more needs to be done. Mr Holbrook has had more than enough time to reflect. He has had plenty of people point out the issues with what he has said. And yet the Tweet remains.

That is why I have decided to report Mr Holbrook to the BSB. This is something I have never done before. I don’t want to “cancel” Mr Holbrook. It is not for me to determine ultimately whether he has breached the Code we share. It is, however, vital that our Regulator examines this conduct.

Those of us that are a part of this profession are privileged. Mr Holbrook uses that privileged profession to be a “commentator” in publications like Spiked. He has a right to freedom of expression. But with that right and the enjoyment of that privilege comes a responsibility.

In my view Mr Holbrook is responsible for expressing a view which damages my profession and diminishes the standing of our profession. He hasn’t uttered a word of apology or contrition or acknowledgement of people’s concerns. Of course, that is not the way of the contrarian. He has not even responded to the repeated Tweets of the mother involved in the story, Tweets which contain a dignity which jars against the cowardice of silence in response.

This is why we have merchanisms of complaint. It may well be that I am wrong. That’s why others are in place to judge Mr Holbrook. But to stand by and not say anything, to not do anything, would be to abuse the privileged position that I hold.

I have no doubt that some will consider this approach as “virtue signaling”. I am not signaling my virtue. I am seeking to uphold the values which seem core to the bar taking its place in a modern society. With the privilege of our regulated profession comes responsibilities.

It is possible to debate the utility and purpose of equality legislation without implying unfair criticism of an individual and without a lazy generalised swipe at BAME teenagers.