Proposed changes to the barristers’ code of conduct could fundamentally reshape the culture of the profession, incoming Bar Council chair Barbara Mills KC has warned. Speaking during her inaugural address on Wednesday 8th January, Mills expressed concern about the likely impact of the Bar Standards Board’s (BSB) consultation on amending Core Duty 8 of the Barristers’ Handbook.
The Bar Council, which represents approximately 17,500 barristers in England and Wales, has expressed concern about the implications of the proposed changes since they were first floated in September 2024.
The current duty requires barristers to “not discriminate unlawfully against any person,” but the BSB proposes replacing this with a proactive obligation to “act in a way that advances equality, diversity, and inclusion (EDI)”.
Mills and other critics argue that the proposal to incorporate a proactive EDI obligation into the barristers’ code of conduct presents significant risks. The concern is not with EDI per se, but with how the proposed duty could push barristers to become ‘social engineers’, prioritising ideological goals over their professional obligations to their clients. As previously highlighted by Matthew Scott, a criminal barrister writing for The Spectator, this new duty could compel barristers to act in ways that align with specific political or moral views, undermining their role as independent advisors and advocates for their clients.
Mills cautioned that using the code of conduct as a tool for cultural change risks creating division, undermining professional independence, and hindering genuine progress on diversity. She described the proposals as “unlawful and misguided,” warning that the road to such reforms is often “paved with good intentions”.
As distinguished legal commentator Joshua Rozenberg has pointed out, the Free Speech Union (FSU) has taken a leading role in challenging these proposals. We commissioned a 23-page legal opinion by Jason Coppel KC and Tom Cross, which concluded the proposals would likely be unlawful. Their analysis warns that:
- The rules could directly or indirectly discriminate against barristers;
- They could breach Articles 9 and 10 of the European Convention on Human Rights, which protect freedom of belief and expression; and
- They might require barristers to engage in unlawful discrimination during recruitment, breaching the Equality Act 2010.
These concerns are echoed by many on the ground within the legal profession, with various barristers’ groups and legal experts warning that the proposals could undermine fairness, independence, and free speech within the Bar. As reported by The Times, the Bar Council raised significant concerns about the BSB’s proposals in November 2024, stressing the need for caution. Sam Townend KC, the outgoing chair, described the proposals as “lacking clarity, likely unlawful and subject to challenge, impractical to implement, and ultimately likely to hinder progress on these issues”.
Similarly, the Law Gazette has highlighted that several senior legal figures have raised alarms about the potential for unintended discrimination and the impact on professional autonomy.
You can read Joshua Rozenberg’s article and listen to his interview with Barbara Mills KC here.
To learn more about the FSU’s work on this issue, you can also watch our recent live event where we discussed the BSB’s proposals in detail here.
