Potentially unlawful
The Bar Council has strongly criticised a proposed rule change that would impose a positive duty on barristers to “act in a way that advances equality, diversity, and inclusion”.
It has expressed significant concerns, arguing that the proposals are substantially unlawful, unenforceable, and impractical. It also warned that the changes could potentially “hinder progress in this important area”.
Currently, barristers are required not to “discriminate unlawfully against any person”.
The Council argues that the proposed changes would impose a more onerous duty on barristers than the public sector equality duty. It also criticises the Bar Standards Board (BSB), which proposed the changes, for failing to provide evidence of their effectiveness by pointing to successes in similar regulatory settings.
The body has instead proposed a simpler and more practical alternative. It suggests requiring compliance with the Equality Act, implementing and adhering to specified policies, maintaining and supporting the role of equality and diversity officers, and completing a minimum number of hours of equality, diversity and inclusion training annually.
Commenting, Sam Townend KC, chair of the Bar Council, said:
“The Bar Council is deeply committed to supporting and improving equality, diversity and inclusion at the bar. It is because of this commitment that we cannot support proposals for a new positive duty that lacks clarity, is probably unlawful and subject to challenge, impractical in implementation and ultimately likely to hinder progress on these issues.”
He continued:
“While periodic review of the regulatory framework is welcome, and we accept some amendments to the equality rules are needed, it is disappointing that the bar Standards Board were not willing to consult with the Bar Council in any substantive way, prior to publishing its consultation. Many of the deficiencies might have been avoided.”
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