The Bar Standards Board’s (BSB) proposal to impose a new positive duty on barristers to promote equality, diversity, and inclusion (EDI) has sparked considerable debate and concern among legal professionals.
The proposed duty seeks to replace the existing core duty which prevents unlawful discrimination. High-profile figures, including Matthew Scott, a criminal barrister, have voiced apprehensions about this development. Writing in The Spectator, Mr Scott expressed scepticism about the consultation process preventing the proposal’s adoption and warned that barristers could be forced into roles as ‘social engineers’.
Matthew Scott articulated concerns that failing to comply with these new EDI advancements may result in disciplinary actions against barristers, potentially leading to fines or severe impacts on their careers. He described this move as an ‘unnecessary and slightly sinister interference’ with the independence of legal professionals.
Even from a left-leaning perspective, Scott argues, the ambiguity of the proposed duty is troubling. He questions how actions will be assessed as either advancing or inhibiting EDI, suggesting that decisions will be subject to the judgment of a BSB preoccupied with such objectives.
Scott points to the BSB’s extensive equality agenda, highlighting taskforces for race, religion, belief, and disabilities. He suggests that barristers could be accused of ‘counter-inclusive misconduct’ for not advancing the board’s radical anti-racist agenda. This sentiment is exemplified by a statement from Leslie Thomas KC, a board member, emphasising a binary choice between being ‘anti-racist’ or ‘racist’. Scott finds such assertions alarming if indicative of the BSB’s collective stance.
In The Critic, Professor Andrew Tettenborn of Swansea University criticised the proposals as undermining the independence of the Bar and freedom of thought. He contends that these measures impose a singular political ideology on legal professionals, which may not resonate with individual beliefs or views on social justice.
Tettenborn argues that a truly independent Bar should allow for diverse opinions within its ranks, free from the compulsion to adhere to political activism enforced by regulatory bodies. However, barristers with gender-critical views have similarly expressed their concerns over this proposal, emphasising the potential for curtailing freedom of expression.
The BSB’s proposal has ignited a robust debate about the boundaries between regulatory expectations and personal ideological freedom within the legal profession. As discussions continue, the implications for barristers’ independence and the pursuit of justice remain central to this contentious issue.
