The Bar Standards Board (BSB), the body that regulates barristers, is currently consulting on a change to the rule book which would replace the duty to refrain from unlawfully discriminating against any person with a new equality, diversity and inclusion (EDI) duty.
Professional rules already require barristers not to “discriminate unlawfully against any person”.
But under the beefed-up proposal from the Bar Standards Board (BSB), barristers’ obligations would be brought into line with solicitors in England and Wales, who are required to “act in a way that encourages equality, diversity and inclusion”.
Solicitors have their own concerns about that rule — and the Bar watchdog’s move to bring that side of the profession to the same position has triggered criticisms of “regulatory overreach”.
As reported in the Times, those criticisms ratcheted up several notches earlier this week as Sam Townend KC, the chair of the Bar Council, the professional body for 17,500 barristers, accused the watchdog of proposing amendments to equality obligations that were “probably unlawful and subject to challenge”. The report continues:
In its formal response to the board’s proposals, the Bar Council trumpeted its own “considerable experience on equality, diversity and inclusion”, highlighting what it described as research programmes, training, helplines, and the creation of an equality and diversity network. All of which meant, the council said, that it “recognises the challenges set out by the BSB”.
Against that background of experience, the council said it was adamantly opposed to the board’s main recommendation to amend one of the profession’s “core” duties.
If implemented, the council said the beefed-up rule “would place a more onerous duty on individual, mostly self-employed barristers than the public sector equality duty”. It went on to accuse the board of having “not evidenced, by pointing to success in other similar regulatory settings, how its proposed approach would succeed”.
That “lack of clarity”, said the professional body, made it “impractical” for council officials to advise practising barristers on “how to comply, and might well reduce overall commitment to equality, diversity and inclusion initiatives, and hinder progress”.
Townend piled in personally, saying that the board’s approach “lacks the clarity required for proportionate, robust, effective and enforceable regulation”.
He added that ordinary barristers on the ground were broadly opposed to the proposals, “even where there is support for what the BSB is trying to achieve”. The KC and the council argued that implementation of the board’s proposals would place too onerous a burden on existing equality and diversity officers in chambers, and as a result many would stand down.
When the board’s proposed reform was first published in September, Allison Bailey, a barrister who is well known for her so-called gender-critical views, said the move “smacks of regulatory overreach”.
Bailey has been at the forefront of arguing that gender is immutable and that equality, diversity and inclusion “has become synonymous with trans activism, the removal of single-sex protections and rights in the workplace and elsewhere, and the unlawful discrimination and victimisation of women”.
Bailey has argued that “it isn’t for barristers to promote anything beyond the rule of law and the best interests of their clients within the law” and that the profession’s existing duties are “enough in this regard. They require barristers not to discriminate unlawfully and to act with honesty and integrity”.
Meanwhile, the respected criminal law barrister and prolific blogger Matthew Scott recently wrote in The Spectator magazine that the reforms would put barristers “under a professional duty to become social engineers”.
And another outspoken blogging barrister, Jon Holbrook, has argued that under the BSB’s proposals “it will not be good enough that barristers have not discriminated and not broken the law and have simply recruited and allocated work on merit”. Instead, he says, “if they happen to be in a chambers with a disproportionately low number of practitioners viewed by the BSB as less powerful or oppressed, then they will only avoid professional misconduct findings if they change their ways with practices that will make the disparities wane or disappear”.
Worth reading in full.
The FSU’s position is that the proposal is unnecessary, unlawful and unworkable — when similar EDI initiatives have been considered elsewhere, they have been challenged on the grounds that they risk introducing compelled speech and thought.
We have set out our response to the consultation here.
We also recently hosted a panel of eminent legal experts to grapple with the merits of the Bar Standards Board’s proposals. You can watch the debate in full below.
