The Bar Council has expressed significant concerns regarding the Bar Standards Board’s (BSB) newly proposed equality duty, labelling it as potentially unlawful and warning of ensuing litigation with barristers.
The proposed changes by the BSB aim to replace the existing core duty not to unlawfully discriminate with a proactive obligation to advance equality, diversity, and inclusion (EDI) within legal services. Yet, the Bar Council perceives these changes as mere ‘virtue signalling’, unlikely to effectively tackle existing discrimination issues or foster diversity at the Bar.
Critics, including the Bar Council, argue that the BSB has not clearly justified the need for such a substantial shift in the regulatory framework of equality, diversity, and inclusion. The lack of clarity and the potential for the proposals to lead to prolonged disputes between the regulator and barristers is a central concern. An added complication is the ambiguity over whether the sanctions for failing to comply would target individual barristers or encompass entire chambers.
Debate further intensifies over whether the proposed changes address actual deficiencies. The Bar Council points out that while enhancements to current regulations are necessary, notably in the role of equality and diversity officers and enforcement strategies, the proposed overhaul lacks substantiation. The existing rules could indeed benefit from a review, but the evidence that new measures would accomplish their goals is absent.
There’s also apprehension that the new core duty contravenes the Legal Services Act 2007 and other legal regulations. The Bar Council believes that obligating barristers to promote a vaguely defined and politically sensitive concept of EDI could infringe on human rights, particularly regarding freedom of expression. Moreover, this duty might pressure barristers to align with contentious political stances, exacerbating potential violations of the Human Rights Act 1998.
The Bar Council warns of unintended impacts on barristers’ professional practices. For instance, the pressure to form diverse legal teams might compromise client service quality by prioritising diversity over skills or client preferences. Furthermore, barristers involved in high-profile or divisive litigation could be accused of breaching the new rules based on their public stances.
While the Bar Council supports some equality rule amendments, such as developing a fair work distribution policy over merely having a chamber work allocation policy, it opposes abolishing equality and diversity officers. Removing these roles could lead to inaction in chambers, it argues. Instead, these officers should be empowered with greater authority.
Similarly, the Bar Council disputes ending EDI training requirements, noting that without these, achieving genuine progress in equality and diversity is unlikely. Chair Sam Townend highlights that enacting these proposals could divert vital resources and focus away from the essential aim of improving EDI at the Bar. He urges the BSB to reconsider its approach and collaborate with relevant bodies to ensure an effective regulatory framework.
In light of substantial opposition from the Bar Council, the Bar Standards Board faces calls to reconsider its proposed equality duty measures, ensuring they align with barristers’ rights and current legal standards.
