The Bar Standards Board (BSB) has withdrawn controversial proposals to impose a sweeping new obligation on barristers to “act in a way that advances equality, diversity and inclusion” (EDI), following sustained opposition from across the legal profession and a concerted campaign by the Free Speech Union (FSU), which played a central role in defeating the plan.
The BSB regulates barristers in England and Wales, overseeing professional standards and maintaining the BSB Handbook, which sets out their ethical obligations. At the heart of that framework lie the Core Duties – foundational principles governing professional conduct. It was a proposed amendment to one of these, Core Duty 8, that prompted widespread concern.
Under the existing rule, barristers are required to “not discriminate unlawfully against any person”. The BSB’s proposal would have replaced that clear, legally grounded obligation with a new, open-ended duty to promote EDI. While the stated aim was to bring the Bar into line with the solicitors’ profession, critics warned that the change risked replacing neutrality with advocacy, and impartiality with ideological conformity.
Faced with widespread criticism, the BSB has now confirmed it will not proceed. As reported by The Law Society Gazette, the regulator said that consultation responses had prompted reflection “on our objectives and how best to achieve them in the most proportionate manner.” It now believes that “significant progress can be achieved within the existing framework” and has pledged to publish a five-year plan to monitor outcomes and revisit its approach only if necessary. Chair Kathryn Stone OBE acknowledged that the consultation responses had “underlined the scope for a collaborative, rather than rule-based, approach to achieve shared objectives.”
Among the most detailed objections came from the FSU. We commissioned a 23-page opinion from Jason Coppel KC and Tom Cross KC, which concluded that the proposed duty would likely be unlawful. It warned that the rule could breach Articles 9 and 10 of the European Convention on Human Rights (ECHR), indirectly discriminate against barristers on the basis of belief, and lead to unlawful recruitment practices in breach of the Equality Act 2010.
Alongside this legal analysis, our consultation response set out a broader set of risks. Central to our argument was the claim that the new CD8 would allow for expression-based discrimination against clients, applicants, and colleagues “in the name of ill-defined and controversial principles underpinning the concept of EDI.” The submission described the proposal as “unnecessary, unlawful and unworkable in light of existing law and professional ethical standards required of barristers”.
This systemic risk, we argued, arose from three interlocking features: an undefined duty to promote EDI, which was effectively indistinguishable from a duty to propagandise; a requirement to go beyond what is clearly prescribed by law and into the promotion of politically contentious ideas; and the absence of any safeguards for the rights to freedom of belief and expression.
One example cited in our submission came from paragraph 5 of Annex B of the BSB’s consultation, where the regulator proposed working with stakeholders to develop “anti-racist recruitment practices”. As we noted, ‘anti-racism’ is not simply the rejection of unlawful racial discrimination, but a controversial political ideology popularised by critical race theorists such as Ibram X. Kendi. A barrister seeking to comply with the proposed duty might reasonably conclude, from this passage and from CD8 more broadly, that the BSB expected active advocacy of a polemical anti-racist stance. That kind of ideological pressure, we warned, could breach the Equality Act by creating a hostile environment for those whose religious or philosophical beliefs do not align with such frameworks.
The submission also criticised the failure to define what it meant to “promote” or “advance” EDI. These, it argued, are not neutral terms, but “necessarily imply the championing of a cause”. To compel barristers to endorse or advocate ideas they do not believe in would constitute compelled speech, prohibited by Articles 9 and 10 of the ECHR. The result would be a clash of rights with no clear resolution. Likely consequences included ideological self-censorship, the politicisation of life within chambers, and a growing reluctance to speak openly about contested cultural and legal questions.
These risks would not be confined to the internal life of the profession. Because the proposed CD8 would apply to barristers “when practising or otherwise providing legal services”, the submission warned that it could deter practitioners from representing clients with dissenting or unfashionable views. Under the new code, a claimant such as FSU member Sean Corby, who expressed support for Martin Luther King’s ‘colour-blind’ alternative to anti-racism, would likely have struggled to secure legal representation. As a result, a court would not have had the opportunity to find that his beliefs were legitimate and protected under the Equality Act 2010.
Lord Young of Acton, founder and director of the FSU, welcomed the regulator’s decision. “I’m relieved the BSB has seen sense on this. We spent several thousand pounds obtaining advice from one of Britain’s leading public law KCs which we passed on to the BSB and, reading between the lines, we were threatening a judicial review if it pressed ahead. The FSU wasn’t the only body pushing back, but I think we deserve much of the credit.”
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