Wolfson: Proposed duty is too vague
Former justice minister Lord Wolfson KC has joined the voices opposing the Bar Standards Board’s (BSB) plan to impose a new positive duty on barristers to act in a way that “advances” equality, diversity and inclusion (EDI).
In a joint letter with Andreas Gledhill KC of Blackstone Chambers, Lord Wolfson argued that “the BSB has no authority to impose its own views of social justice on practitioners, as it is now seeking to do.”
The proposed new duty was “vague, uncertain and will, in some cases, turn on highly subjective value judgments”.
They added: “No-one should be exposed to the risk of disciplinary action on this basis.”
The proposal, put out for consultation earlier this month, would replace existing core duty 8, under which barristers must not discriminate unlawfully against any person.
In a reaction unlike any seen to a BSB consultation before, we have already reported that barristers with gender-critical views have expressed alarm, as have barristers writing in the national media.
The letter from Lord Wolfson, who practises from One Essex Court and was a minister under the last government, and Mr Gledhill is to Bar Council chair Sam Townend, urging him to oppose the changes.
While strongly supporting the BSB’s aims of promoting equal opportunity and opposing discrimination in all its forms, they said their disagreement was with how it planned to go about this, “which go well beyond those aims, and arguably, beyond the proper remit of a regulator”.
Echoing others who have described the new duty as “social engineering”, the barristers said the proposals appear to “anticipate the imposition of quotas in all but name”, damaging public confidence in “precisely those members of the Bar the BSB professes to be seeking to help”.
It would likely also encourage unlawful positive discrimination from barristers wanting to avoid disciplinary action, they went on.
The barristers said: “The BSB’s objective of imposing conformity with its EDI agenda by way of binding professional obligations, on pain of disciplinary proceedings, is coercive, illiberal and dangerous…
“The administration of justice is not the exclusive preserve of those who support affirmative action, and the BSB is not entitled to make it so, under the guise of professional regulation.”
