Reforming the culture at the Bar – the impact of the Harman report

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Guest post by Thomas Beale, partner and head of the bullying and harassment team at London law firm Bolt Burdon Kemp

Beale: Recommendations form a robust framework

Last month, Baroness Harriet Harman KC published her eagerly awaited review into bullying, harassment and sexual harassment at the Bar, outlining 36 recommendations aimed at reforming behavioural standards among barristers and on the bench.

The recommendations align closely with several key pillars of positive workplace cultures: consistency and transparency, empowering victims and bystanders, and enhanced accountability.

While it is obviously too early to assess the direct impact of the recommendations on the prevalence of misconduct, this alignment is highly suggestive of a comprehensive, advanced plan that will certainly enact meaningful cultural change.

Consistency and transparency

Given the highly adversarial environments barristers and judges work in, behaviours that could cross the line into bullying have been largely normalised. While the Bar Standards Board (BSB) provides a general framework governing the conduct of barristers, the existing rules lack explicit provisions prohibiting bullying, causing ambiguity and uncertainty regarding whether certain behaviours meet the threshold of misconduct.

It is important to recognise that chambers operate as unregulated entities, further exacerbating this issue, and presenting a unique challenge in establishing a transparent, standardised approach to monitoring behavioural standards within working environments.

Currently, there are glaring inconsistencies between chambers’ internal anti-bullying and harassment policies, many of which are non-existent, enabling uncivil conduct to go unchecked.

The proposed introduction of a revised code of conduct and accompanying BSB guidance will facilitate a standardised recognition of unacceptable conduct and the corresponding sanctions, particularly in relation to conduct amounting to bullying.

This, coupled with the implementation of mandatory anti-bullying and harassment policies in chambers, will establish consistent expectations across the profession, fostering safer and more equitable working environments.

In line with best practice, these policies should include explicit zero-tolerance stances, a detailed framework on conduct amounting to misconduct and the corresponding sanctions, and clear guidance in relation to the available reporting mechanisms.

A particularly significant recommendation seeks to mandate a standardised anti-bullying and harassment training on a triennial basis, setting out the revised code of conduct and re-iterating the formal reporting procedures for both the BSB and Judicial Conduct Investigations Office.

Backing written policies with these practical measures is essential in reinforcing standards, and de-normalising uncivil behaviour through consistent denunciation.

Empowering victims and bystanders

Victims and bystanders who feel confident and empowered to report misconduct serve as essential tools in tackling and eradicating such behaviour.

Regrettably, the competitive nature of the Bar often perpetuates cultures in which individuals feel powerless to speak out. Junior professionals, who are often reliant on patronage from more senior professionals, are fearful of being labelled troublemakers and damaging their professional reputation.

Consequently, these unique circumstances enable mistreatment and predatory abuses of power.

The proposed reforms seek to increase awareness of reporting pathways, including routes that allow for anonymous complaints, through mandatory chambers’ policies, triennial training, and the proposed commissioner for conduct’s guidance on complaints mechanisms.

By enhancing the accessibility of these pathways, individuals will be better informed of the routes available to them, the process that will follow from a complaint, and the consequent outcomes. This, in turn, empowers both victims and bystanders to come forward, armed with the knowledge and confidence that a structured and standardised process will follow.

Another critical proposal recommends the removal of the mandatory duty to report serious misconduct, allowing victims the freedom to confide in trusted individuals without pressure or fear of enforcement action, which previously acted as a deterrent to reporting behavioural concerns.

Crucially, the early identification of patterns of inappropriate conduct and repeat offenders enables proactive interventions before issues escalate into more serious misconduct, thereby minimising harm to victims.

Anonymised reporting pathways, such as the existing online ‘Talk to Spot’ tool, can be useful in this early identification process, and its extension into the judiciary would be highly welcome.

Enhanced accountability

Evidently, the proposed reforms seek to tackle the “culture of impunity” that has historically protected perpetrators of misconduct, placing the jeopardy onto their victims.

The proposed introduction of strong, publicised sanctions for perpetrators mimics recent proposals by alternative industry regulators, such as the Financial Conduct Authority, and will go far in deterring such conduct.

This approach shifts the power to the hands of the victims, sending a clear message that their complaints will be taken seriously, and further reiterating the zero-tolerance stance throughout the wider profession.

The classification of all cases of bullying and harassment as serious misconduct which requires chambers to report cases to the BSB or proposed commissioner for conduct, upon reasonable suspicion, is vital in enhancing accountability.

The elimination of non-disclosure agreements, as well as the removal of time limits for complaints of this nature, will necessitate prompt action from leaders within the profession, who will risk facing sanctions of their own if they fail to act.

Furthermore, we expect to see an overhaul of the current BSB complaints procedure, with stricter time limits for investigating misconduct, and the introduction of mandatory, regular updates to complainants.

By ensuring accountability at each level of the profession, the burden of enacting cultural change shifts away from victims, and towards a collective responsibility.

Redefining culture from an early stage

As a result of the unique and largely self-employed nature of the Bar, many professionals may not have experienced a traditional workplace with clear, structured behavioural standards, enabling inappropriate conduct to go unchecked.

To address the unique challenges in standardising behavioural expectations, it is imperative to define professional boundaries, outline work-related social norms and instil integrity at an early stage in professionals’ careers.

The proposed reforms target aspiring barristers at a student level and promote an educational approach to cultivating cultural change. By mandating training on the code of conduct and formal reporting procedures, aspiring barristers will enter the profession armed with tools empowering them to effectively challenge uncivil behaviour.

The recommendations outlined in Baroness Harman’s review largely revolve around consistency, empowerment and accountability. They form a robust framework that will, if enacted, undoubtedly transform behavioural standards and workplace cultures within the Bar and judicial professions.

Crucially, the appointment of a designated commissioner for conduct will serve as a key tool in the effective implementation and oversight of the recommendations.

Equally, it is imperative that all levels of the professions remain vigilant and committed to furthering a positive cultural shift, with an understanding that the burden of enacting change cannot rest solely on those most gravely impacted.