Stone: Collaborative approach
The Bar Standards Board (BSB) has ditched its controversial proposal to require barristers to “act in a way that advances equality, diversity and inclusion”.
It has decided against rule changes and instead will develop a strategy that “draws on all of our regulatory tools” to address barriers to equality of opportunity in the profession.
“We remain determined to see a step change in progress in encouraging a diverse legal profession,” it said.
The central proposal in the proposed rewrite of its equality rules of replacing core duty 8 – under which barristers currently “must not discriminate unlawfully against any person” – with the more active obligation triggered a wave of criticism.
The Bar Council said it understood the regulator’s intention but considered the framing of the duty “unlawful and misguided”.
There was also alarm from gender-critical barristers about the implications, a prediction that it would turn barristers into “social engineers”, and former justice minister Lord Wolfson KC warning that “the BSB has no authority to impose its own views of social justice on practitioners”.
In a statement today, the BSB said the consultation process had shown the strong commitment among barristers to addressing the underlying barriers to entry, retention and progression for those with certain protected characteristics and from certain socio-economic backgrounds.
“We have concluded that we can make significant progress by working with the profession and others to achieve our desired outcomes.
“For now, we will focus our efforts on developing a strategy for the sector that draws on all of our regulatory tools and invites the collaboration of others. We therefore will not be moving forward at this time with the proposals on which we consulted.”
The BSB is instead to set “clear expectations” for the progress it wants to see over the next five years and how it will achieve this, including producing clear guidance, “more proactive use” of its supervision function to support chambers, “and enforcement action where needed”.
It will monitor progress and evaluate impact, “with a commitment to revisit our rules and guidance where necessary”.
BSB chair Kathryn Stone said: “The board has been impressed by the quality and thoughtfulness of the response to our consultation from the profession. It underlines the scope for a collaborative, rather than rule-based, approach to achieve shared objectives.
“A profession that puts equality of opportunity at its heart can better reflect the society it serves and better support barristers and clients. We invite the profession to join us in developing a shared strategy to promote equality of opportunity.”
Director general Mark Neale added: “The challenge here is a practical one, not an ideological one: to ensure that merit, not background, determines success at the Bar.
“Despite progress, there is still unequal opportunity to join and progress at the Bar for female barristers, barristers from minoritised backgrounds and disabled barristers. At root, this requires a change of culture.
“Such a change requires the support and active collaboration of the profession. We are committed to working constructively to make progress in areas like this where we have shared objectives.”
Bar Council chair Barbara Mills KC welcomed the decision to stick with “a clear and definitive duty not to discriminate”.
She said: “This is the right decision, and we’re pleased that the BSB has genuinely listened to feedback from the Bar.
“We will engage fully in the development of the new strategy drawing on our expertise in delivering programmes and initiatives on culture change at the Bar.”
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