Townend: BSB needs to rethink
The new, proactive equality duty proposed by the Bar Standards Board (BSB) could lead to litigation with barristers and is unlawful, the Bar Council said yesterday.
It argued that the change could end up as mere “virtue signalling”, which would be “unhelpful to those who wish to tackle discrimination and support diversity and inclusion at the Bar”.
Further, the regulator has not “demonstrated the rationale for such a significant change in the regulatory framework of EDI (equality, diversity and inclusion)”.
Under the BSB’s plans, the existing core duty (CD) 8 not to discriminate unlawfully would be replaced by a positive duty to act in a way that advances EDI when providing legal services.
We have reported a largely negative reaction to the reform since the consultation was published and in its formal response, published yesterday, the Bar Council said the BSB’s approach “lacks the clarity required for robust, effective and enforceable regulation”.
It went on: “We are also concerned that the proposals as set out could lead to protracted disputes and litigation between the regulator and regulated barristers.
“It remains unclear whom the BSB would sanction for failures to comply with proposed new equality rules – an individual barrister, or every member of a chambers. The position of employed barristers is also unclear.”
The Bar Council said the consultation failed to recognise the progress on EDI made at the Bar in recent years and, while more needed to be done, “we are concerned that the proposed regulations may hinder progress in this important area”.
The current rules “would benefit from review” – such as enhancing the role of equality and diversity officers (EDOs) in chambers and focusing on how the rules could be better enforced – but “the BSB has not evidenced deficiencies in the existing regulatory framework”, it said.
Equally, the regulator has not provided evidence that the proposed changes would achieve its stated objectives.
The Bar Council argued that the new CD8 was not compatible with the Legal Services Act 2007 – such as the requirement for regulatory activities to be proportionate and transparent – as well as other legislation.
“We believe that an obligation on barristers to ‘advance’ the ill-defined and politically contested concept of EDI is likely to result in breaches of the Human Rights Act 1998 by reason of the limitations it would impose on barristers’ freedom of expression and, worse, the pressure it would impose on barristers to advocate for contested political positions.”
It would also likely result in the BSB breaching its obligations under the Equality Act 2010 by discriminating against barristers “in connection with protected beliefs inconsistent with the BSB’s views on EDI”.
The Bar Council argued that the new CD8 lacked “clarity” as to what barristers were supposed to do and what compliance would look like, making successful enforcement difficult.
There were concerns about how it could affect barristers’ practice – while the BSB has declared that it would not affect the cab-rank rule, for example, “it is wholly unclear how, or to what extent this new core duty can be subordinated to other, non-core rules of conduct or practice”.
“It is at least possible that barristers will feel under pressure to act in ways which may not serve their clients’ best interests. By way of example, a barrister may feel compelled to use junior barristers who will provide a more diverse team irrespective of relative skills or other relevant attributes, and irrespective of client preferences.”
It was also “entirely predictable” that barristers associated with litigating controversial positions – such as those known for representing gender critical feminists – would find themselves accused of breaching the new CD8 “by reason of their ‘non-inclusionary’ public approach by reason of public comments made in connection with their cases”.
While agreeing with some of the BSB’s other changes to the equality rules, the Bar Council was not in favour of all of them, such as requiring chambers to have a policy on the allocation of unassigned work.
This was “only one element of ensuring fair access to and distribution of work in chambers” and recommended the BSB consider instead a broader policy objective of ‘fair work distribution’.
Distribution of work and earnings should also be included in the list of data chambers should collect to generate “high-quality management information for use and discussion internally”.
The Bar Council rejected the proposed abolition of EDOs. Rather than ensure everyone take full and personal responsibility for EDI in chambers, “we think the opposite will happen. In the absence of an EDO, there is a real risk that nothing will happen”.
Rather, the BSB should strengthen EDOs’ position, authority and ability to act in chambers.
The Bar Council also opposed removing EDI training requirements.
Chair Sam Townend commented: “If the BSB’s proposals were enacted and subject to legal challenge this could become a lengthy and costly distraction from the essential work of improving equality, diversity and inclusion across the Bar.
“We ask the BSB to rethink these proposals and work with the Bar Council and others to ensure that we have an effective regulatory framework and the necessary guidance to help the Bar comply.”
Leave a Comment