Two prominent employment law experts are at odds over the Bar Standards Board’s (BSB) proposed proactive equality duty.
The BSB’s plan, subject to ongoing consultation, aims to transition from the existing core duty (CD) 8, which prohibits unlawful discrimination, to a more active role that promotes equality, diversity, and inclusion (EDI) within legal services. This proposal has sparked a significant debate among barristers, with some criticising it as an act of ‘social engineering.’
Akua Reindorf KC, from Cloisters Chambers, criticised the proposal as ‘deeply problematic,’ expressing doubt that it would ever be implemented. She argued that the new CD8 duty is broader and poorly articulated, potentially forcing barristers to support ideological stances they may not agree with. Reindorf compared this new duty unfavourably to the Equality Act, which addresses the ‘gritty reality of discrimination,’ as opposed to a utopian vision of universal rights.
Reindorf pointed out that many public bodies, especially universities, have overextended their commitment to EDI, leading to conflicting rights. She questioned the practical application of the new duty, particularly in line with existing regulatory responsibilities and the traditional cab-rank rule, which ensures barristers must accept any client regardless of personal beliefs. Despite assurances from the BSB that the cab-rank rule would remain unaffected, Reindorf remained sceptical about the practicality and success of the proposed changes.
Conversely, Karon Monaghan KC of Matrix Chambers believes many concerns are ‘misplaced’ and stem from a lack of understanding of the regulatory framework. In her view, the existing CD8 is merely a restatement of unlawful conduct and adds nothing substantive. Monaghan asserted that the BSB is compelled to promote equality under the Legal Services Act, and inaction is not a viable option.
Monaghan contended that the new duty, which she supports with some minor modifications, reflects principles already present in existing equality laws and should focus on outcomes rather than a bureaucratic process. She dismissed fears that the duty would conflict with barristers’ obligations to the court and clients, arguing that the aim is to take reasonable steps to advance EDI.
Monaghan also highlighted that the initiative underscores the necessity for a diverse legal profession capable of serving a broad client base. While acknowledging the inclusion aspect as somewhat vague, she saw it as a necessary aspiration worth refining. Crucially, the proposed duty does not include quotas, which would likely be deemed unlawful.
The debate between Reindorf and Monaghan represents a broader conversation about the role of equality and diversity in the legal sector. As the consultation process continues, the implications of the proposed duty and its alignment with existing legal frameworks remain subjects of critical scrutiny among legal professionals.
