The Bar Council has today published its proposed response to the Bar Standards Board's proposed amendments to the equality rules forming part of barristers' conduct obligations. The Bar Council has significant concerns that the proposals are substantially unlawful and unenforceable, impractical, and may "hinder progress in this important area". 

The Bar Council has considerable experience on equality, diversity and inclusion (EDI) at the Bar – including undertaking research, delivering training, providing helplines and resources, and running the EDO (equality and diversity officer) network – and recognises the challenges set out by the BSB.

Drawing on this expertise in its detailed response to the BSB consultation, the Bar Council opposes the headline BSB recommendation to amend Core Duty 8 from a duty not to discriminate to a duty to advance or promote EDI. 

Such a change would place a more onerous duty on individual mostly self-employed barristers than the public sector equality duty. The BSB has not evidenced, by pointing to success in other similar regulatory settings, how its proposed approach would succeed. Its lack of clarity makes it impractical for the Bar Council to advise the Bar on how to comply, and might well reduce overall commitment to EDI initiatives and hinder progress.

In response to other proposals in the consultation, the Bar Council:

  • Rejects proposals to abolish equality and diversity officers (EDOs) who lead and coordinate work on EDI in chambers. Instead, we propose measures to reinforce and enhance the role
  • Reiterates concerns about the BSB’s moves towards outcomes-based regulation which would be unworkable and inappropriate for EDI
  • Rejects proposals to remove mandatory training and instead proposes a minimum requirement of EDI-related training
  • Supports the proposal for chambers to carry out disability access audits and to have action plans in place when ‘reasonable adjustments’ (as understood in the Equality Act) are to be made but raises serious concerns about a requirement to be fully accessible in 5 years. There is a significant danger that accusations of regulatory overreach would result in protected legal action and become a distraction from activity to improve accessibility
  • Supports data collection and the use of data as an evidence base for action planning but does not agree with mandatory annual data publication

The Bar Council proposes a simplified and workable approach: a duty to comply with the Equality Act, having specified policies in place and following them, retaining and supporting the role of EDOs, and undertaking a minimum number of hours of EDI training a year.

Commenting, Sam Townend KC, Chair of the Bar Council, said: “The Bar Council is deeply committed to supporting and improving equality, diversity and inclusion at the Bar. It is because of this commitment that we cannot support proposals for a new positive duty that lacks clarity, is probably unlawful and subject to challenge, impractical in implementation and ultimately likely to hinder progress on these issues.

“While periodic review of the regulatory framework is welcome, and we accept some amendments to the equality rules are needed, it is disappointing that the Bar Standards Board were not willing to consult with the Bar Council in any substantive way, prior to publishing its consultation. Many of the deficiencies might have been avoided.

“Overall, the BSB’s proposed approach lacks the clarity required for proportionate, robust, effective and enforceable regulation. We note that the proposals have generated a negative response from the Bar, even where there is support for what the BSB is trying to achieve.

“Equality and diversity officers in chambers perform a vital role in chambers as experts and champions in this arena. It would be a real mistake for the role to be abolished. In the absence of an EDO there is a real risk that nothing will happen. Instead, the BSB should be supporting and enhancing the role of EDOs.

“If the BSB’s proposals were enacted and subject to legal challenge this could become a lengthy and costly distraction from the essential work of improving equality, diversity and inclusion across the Bar. We ask the BSB to rethink these proposals and work with the Bar Council and others to ensure that we have an effective regulatory framework and the necessary guidance to help the Bar comply.”

Read the Bar Council response.

Read the BSB consultation.