Neale: Regulation can support Bar in becoming truly inclusive
Barristers will have a positive duty to act “in a way that advances equality, diversity and inclusion” under a shake-up of the equality rules launched by the Bar Standards Board (BSB).
However, Sam Townend KC, chair of the Bar Council, warned that “radical change” may have “unintended detrimental consequences”.
The consultation launched yesterday looks set to intensify the disagreement between the two bodies – in June, Mr Townend called on the BSB to let the Bar Council lead the way on equality, diversity and inclusion (EDI), which the regulator firmly rejected.
The BSB said the new positive duty would replace existing core duty 8, under which barristers “must not discriminate unlawfully against any person”.
The new duty would “form the basis of our future regulatory action in this area and will be central to achieving behaviour and culture change across the profession”.
New “outcomes-based” general equality rules would be introduced alongside the new duty.
Barristers in chambers and BSB entities would have to “eliminate unlawful discrimination and advance equality of opportunity, particularly in relation to recruitment, retention, and progression”.
They must “prevent bullying, harassment, and victimisation, and have systems in place to respond to such behaviour”, ensure “equal access” to their services and promote an inclusive culture.
In addition to the existing policies chambers are required to have on EDI, anti-harassment and bullying, reasonable adjustments, flexible working and parental leave, the BSB would require them to have a policy on the allocation of unassigned work.
On diversity data, the BSB is proposing that chambers are required to take “reasonable steps” to annually collect, analyse and publish monitoring data.
They should have a written action plan that is “specific and measurable to address any disparities identified through analysing the data”.
To promote disabled access, chambers would be required to publish an “accessibility audit”, reviewed every five years.
Barristers would be expected to “take reasonable steps to ensure” that the premises from which they practise are fully accessible to all.
The BSB said this meant disabled pupils and tenants could “fully integrate into chambers”, with “independent access to enter and exit the building, and move within the building to independently access toilets, communal areas, a conference room, and clerks’ room”.
The BSB proposed that the existing requirement on chambers to have equality and diversity officers (EDOs) and diversity data officers should be removed.
Although some EDOs were “very dedicated”, it had also heard that heard that the role was “delegated to a junior member of chambers” from under-represented groups.
There were concerns that this put “a disproportionate burden on junior members of the Bar from minoritised ethnic backgrounds”, and could impact progression, especially in larger chambers, where there was more data.
The BSB acknowledged that the profession would need time to adapt to these changes, with the likes of the Bar Council needing to “prepare to support the profession” on implementation.
During an initial period, which was “likely to be around a year”, the BSB would concentrate on “supporting the profession through supervision”, rather than taking enforcement action.
Responding to the consultation, Mr Townend said that although “much progress” had been made in improving EDI at the Bar, there was “clearly much more to be done”.
He went on: “Much of the progress made on EDI in chambers is thanks to the voluntary work of EDOs and we are keen to make sure that any regulatory changes do not undermine that work. Radical change is certainly disruptive and may have unintended detrimental consequences.
“On the proposals to move to outcomes-based regulation we have previously raised concerns that this could pose significant challenges for the Bar and may be ineffective.”
Mark Neale, BSB director general, commented: “We want to ensure that the Bar is as inclusive as possible and that it is truly representative of the society it serves.
“Regulation alone cannot achieve that, but regulation can help by supporting barristers to challenge practices which work against diversity and inclusion.”
