Reindorf: I would be amazed if this got off the ground
Two leading employment law silks have clashed over the new, proactive equality duty proposed by the Bar Standards Board (BSB).
Under the BSB’s plans, currently subject to consultation, the existing core duty (CD) 8 not to discriminate unlawfully would be replaced by a positive duty to act in a way that advances equality, diversity and inclusion (EDI) when providing legal services.
As we have been reporting, the consultation has attracted a lot of negative comment from barristers, with accusations that the BSB is engaged in “social engineering”.
Akua Reindorf KC, based at Cloisters Chambers, described the new duty as “deeply problematic” and said she would be “amazed if they get it off the ground”.
However, Karon Monaghan KC, based at Matrix Chambers, said many of the concerns were “misplaced” and although “there were tweaks which could be made”, she agreed with its substance.
They were speaking on separate episodes of Double Jeopardy, a law and politics podcast hosted by KCs Ken Macdonald, a former Director of Public Prosecutions, and Tim Owen KC, both of Matrix Chambers.
Speaking in September, Ms Reindorf described the new CD8 as “much more expansive” than the old one and “extremely poorly explained” in the consultation paper.
It was “deeply problematic”, one of the criticisms being that barristers could be “put under a duty to promote an ideological position with which they disagree”.
She contrasted the new duty with the Equality Act, which was about the “gritty reality of discrimination on the ground” rather than a “fuzzy” world where everyone could have exactly the rights they wanted.
Ms Reindorf said she had seen “too many public bodies”, universities in particular, go beyond the Act to advance EDI, resulting only in “a conflict of rights”.
She said there were “already regulatory duties on chambers” which the BSB was planning to expand into legal practice, but without “a single example of how we do that”.
Ms Reindorf asked: “Does this mean I should not represent a particular client? How does it work with the cab rank?”
She added: “I would be amazed if they get it off the ground or if it is successful.”
The regulator subsequently stressed that the proposed change would not affect the cab-rank rule or lead to quotas.
However, Ms Monaghan – who indicated in last week’s edition that she had asked to be on the podcast to respond to Ms Reindorf – said she believed that a lot of the concerns about the proposed new equality duty were “misplaced” and arose from an “absence of knowledge about the broader regulatory landscape”.
She described the CD8 as “superfluous” because it said “nothing apart from do not act unlawfully”.
Something “has to be done”, because the BSB is itself was under a duty to promote equality under the Legal Services Act.
“We are not a situation where doing nothing is possible or rational… There are tweaks which could be made to the proposed duty, but in substance I agree with its content…
“Much of the substance of the duty we see reflected in equality law anyway and other duties arising elsewhere.” This was not the BSB’s fault.
The new duty was “outcome-focused”, but it would be replacing a regime that was bureaucratic, with “endless requirements to collect data” and “endless training in equal opportunities”, to no particular end, she said.
The new duty could not undermine barristers’ broader obligations to the court and to clients. “We know what is expected of us – that we take reasonable steps to advance EDI.”
The consultation’s objectives for equality and diversity were for a diverse profession and ensuring barristers could serve a diverse client base. “I don’t think there’s anything problematic about that,” said Ms Monaghan, who described herself as being at the “radical” end of feminism.
The third limb, inclusion (“creating a respectful environment and culture where people feel valued and participate”) was the “woolly” aspect not defined in legislation in the same way as equality and diversity.
“We need to work on [it]. I think I understand the aspiration and I’m not particularly opposed to it.”
She added that the proposed duty did not mention quotas, which “would almost certainly be unlawful”.
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