Scott: New duty could be seen as slightly sinister interference with independence
More high-profile figures have expressed their concern at the Bar Standards Board’s plan to impose a new positive duty on barristers to act in a way that “advances” equality, diversity and inclusion (EDI).
The proposal, put out for consultation last week, would replace existing core duty 8, under which barristers must not discriminate unlawfully against any person.
Writing in The Spectator, Matthew Scott, a criminal barrister at Pump Court Chambers, predicted that “once adopted – and I have little confidence that the board’s consultation process will prevent its adoption – barristers will be under a professional duty to become social engineers”.
He went on: “Failure to act in a way that advances equality, diversity and inclusion will be a disciplinary offence, for which we could be fined or have our careers destroyed.
“There will be many barristers who consider such a duty as an unnecessary and even slightly sinister interference with their independence. But even from a left-leaning lawyer’s perspective the vagueness of the proposed duty is worrying.
“Who is to say whether my actions advance or inhibit equality, diversity and inclusion? The answer, at least until the matter reaches a disciplinary tribunal, will be decided by a Bar Standards Board that seems mightily preoccupied with these objectives.”
Mr Scott, who has become well known as the Barrister Blogger and writing for the Daily Telegraph among others, noted that the regulator has an equality and diversity strategy, a race equality taskforce, a religion and belief taskforce and a disability taskforce.
The proposed rule opened up the prospect of being guilty of ‘counter-inclusive misconduct’ “simply by not ‘advancing’ their anti-racist agenda”. That agenda, he contended, was “extremely radical”.
He pointed to an article on the BSB’s website from 2021, entitled ‘Racial equality and diversity in the legal profession’, in which board member Leslie Thomas KC, who is also a member of the race equality taskforce, wrote: “There is a stark binary: anti-racist or racist… being a ‘not racist’ is a racist in denial, whereas an anti-racist is a person who is willing to admit one’s own wrongs and take an active approach to identifying and bettering oneself.”
These views “appear to be strongly endorsed by the BSB’s director general”, Mr Scott said, and amounted to saying that “unless you demonstrate by your actions that you agree with us you are, at best, a ‘racist in denial’”.
“If that is really the collective view of the BSB it is rather alarming,” Mr Scott suggested.
He observed that, in contrast to the “hectoring and tendentious advice” the BSB has issued about racial issues, it has so far been “surprisingly quiet about the sex and gender culture war”.
He continued: “You may be shocked to learn that it does not even have a sex and gender equality taskforce. Somehow I doubt that that will last, and it is not difficult to guess the direction in which the BSB will require barristers to ‘advance gender diversity’.
“I am sure that most barristers want nothing to do with this political activism. We want a regulator that roots out the dishonest, the bullies, the sex pests and the criminals, but otherwise leaves us alone.”
Meanwhile, in an article in The Critic, Professor Andrew Tettenborn of Swansea University, argued that the BSB’s proposals “need to be resisted hard by those who value the idea of an independent and effective Bar, and more importantly by anyone who believes in individual freedom of thought”.
They represented “the state-sponsored shoehorning of the English Bar into a mold (sic) that satisfies the requirements of one political belief system, and a highly contentious one at that”.
For example, though the BSB considered it “axiomatic” that the Bar should reflect in percentage terms the make-up of society, Professor Tettenborn – who also frequently writes in the media – insisted that “there is nothing self-evident or beyond argument” about it.
“On the contrary: what we have here is a demand that the legal profession be forced to accept and promote a highly partisan view of social justice that happens to appeal to the members of the BSB.
“A truly independent Bar would be open to chambers that took a different view on such matters.”
He added: “Indeed, some might say that it should even be open to chambers, and members, that took the even more radical — and actually rather plausible — position that whatever the opinion of individual barristers, the BSB should leave social justice to the politicians, and had no business requiring the profession to do anything beyond what was strictly necessary to assure that its users received a competent and efficient service.”
The move looked like “an attempt to limit access to a profession to those who share the political outlook of the regulator” and “blatantly circumscribe lawyers’ freedom of opinion and expression”.
We reported last week that barristers with gender-critical views have expressed alarm at the proposal as well.
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