The Bar Council strongly opposes a new equality rule from the Bar Standards Board (BSB), labelling it unlawful and potentially litigious.
- The BSB’s proposed rule aims to replace the current duty not to discriminate with a new duty to promote equality, diversity, and inclusion (EDI).
- Concerns are raised about how the rule would be enforced, with potential legal challenges and disputes foreseen between barristers and the BSB.
- The Bar Council criticises the lack of evidence supporting the rule change and deems it incompatible with existing legislation.
- Without clear guidance or evidence, the proposed rule risks hindering progress on diversity and inclusion in the legal profession.
The Bar Council has voiced its opposition to the Bar Standards Board’s proposed new equality duty, describing it as unlawful and likely to provoke litigation with barristers. This proposed change involves replacing the existing core duty, which prohibits unlawful discrimination, with a proactive duty to advance equality, diversity, and inclusion (EDI) in the provision of legal services.
The new rule has been criticised for lacking clarity, which is essential for effective regulation. The Bar Council has expressed concern over the potential for disputes and litigation arising between barristers and the BSB if this rule is enacted. There is also uncertainty regarding who would be sanctioned for non-compliance, whether it would be individual barristers or entire chambers, and how employed barristers would be affected.
The response from the Bar Council highlights a significant shortcoming in the proposal: the absence of evidence for the necessity of such a drastic regulatory overhaul. The existing regulatory framework has been acknowledged for its progress in improving EDI at the Bar, suggesting that while there is room for further improvement, the proposed changes might actually impede this progress.
Furthermore, the Bar Council argues that the new core duty, known as CD8, is not aligned with other legal requirements, such as the need for regulatory actions to be proportionate and transparent as stipulated by the Legal Services Act 2007. There is also a concern that the BSB is disregarding the Human Rights Act 1998, particularly regarding barristers’ freedom of expression and the pressure to support politically contentious positions.
The Bar Council’s apprehension extends to the practical implications of the new rule on barristers’ operations. While the BSB maintains that essential practices like the cab-rank rule will remain unaffected, the extent to which this new duty could influence other aspects of practice remains unclear. This uncertainty could pressure barristers to form more diverse teams at the expense of client needs or preferences.
Additionally, the Bar Council points out concerns that the BSB’s proposed framework could unfairly target barristers engaged in high-profile, contentious cases. These barristers might face allegations of breaching the new duty because of their public stances, leading to potential conflicts between personal beliefs and professional duties.
While the Bar Council agrees with some of the changes proposed by the BSB, such as a review of the policy on unassigned work, it suggests that these should be part of a broader strategy for ensuring fair distribution of work in chambers. Collecting data on work distribution and earnings internally could aid in this effort.
The Bar Council also disagrees with the BSB on abolishing the role of equality and diversity officers (EDOs) in chambers, proposing instead that these officers should be empowered to facilitate and enforce EDI measures effectively. Opposing the removal of EDI training requirements, the Bar Council emphasises the need for a robust framework to support ongoing improvement in this area.
Sam Townend, the Chair of the Bar Council, warned that implementing these proposals could distract from the significant task of enhancing EDI at the Bar. He urged the BSB to collaborate with the Bar Council and other stakeholders to develop a more effective regulatory framework.
The Bar Council calls for a reconsideration of the proposed equality rule, advocating for a supportive regulatory framework that genuinely furthers EDI progress in the legal field.
