Barristers express concern over equality and diversity monitoring

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By Legal Futures

24 February 2011

Equality and diversity: worry about what data arising from monitoring would be used for

Widespread doubts exist among barristers over aspects of the Bar Standards Board’s equality and diversity reforms, it emerged last week at a consultation event on proposed code of conduct rule changes.

Barristers attending the event in London appeared to accept the thrust of the regulator’s plan to make mandatory the current guidance on chambers’ equal opportunities practice. But concerns were raised over details of proposed monitoring requirements.

Speaking at the event, the chair of the BSB’s equality and diversity committee, Sally Hawkins, acknowledged that a Legal Services Board proposal to make the BSB require barristers to monitor across a wide range of categories, plus socio-economic background, would “radically alter” the BSB’s plans if adopted.

In the meantime, she said, the board wants barristers to monitor the representation of women and ethnic minority groups within chambers, applications for pupillages and starter tenancies, and the allocation of work to pupils and barristers. Chambers will have to analyse and, if necessary, act on the data they collect.

The consultation period on the code of practice changes ends on 1 March.

Issues raised by barristers during the event included fears that a requirement to monitor take-up of mini-pupillages would hamper valuable outreach work already underway. The suggestion was that the informal nature of mini-pupillages – which might be no more than a brief period of “work experience” – could be undermined if form-filling was imposed. But other delegates felt that monitoring equal opportunity in securing mini-pupillages was essential, since it was often a first step to a career at the Bar.

General concerns were expressed over exactly what the data arising from monitoring would be used for. Several delegates called for a clear definition of the obligation to “analyse” data and for the BSB to provide benchmarks against which chambers could measure their performance and determine how to act.

Questions were also raised over what was described as the “bureaucratic burden” of having to gather monitoring data annually, while the make-up of chambers was unlikely to alter significantly within this period. There was general backing for a proposal to move to bi-annual monitoring. “People resent having to fill in forms too regularly,” one delegate said.

An issue that provoked strong views was over the question of anonymity and the problem of collecting highly sensitive information about, for example, sexual orientation. In smaller chambers in particular, individuals are more readily identifiable and so are less likely be frank about personal details, it was suggested.

On the question of the fair allocation of work within chambers, there was widespread scepticism that this could be properly measured. It was important that not just the quantity of work allocated was assessed, but also its quality and income value, delegates stressed.

Several barristers complained that the financial cost of complying with the new rules will affect smaller chambers disproportionately, while large sets could afford to employ dedicated compliance officers. The same argument was made about the cost of training, where larger chambers will enjoy economies of scale.

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