A new front has opened in the culture wars. The Daily Mail has inveighed against Generation Z for ditching traditional British sandwiches such as ham and cheese, in favour of ‘woke fillings’ like avocado. (Truly, I am amazed more young people don’t emigrate.)

Also in the crosshairs for allegedly resisting the march of modernity – though less fatuously – is the bar. This week the Bar Council rubbished the Bar Standards Board’s plan to impose a positive duty to promote equality, diversity and inclusion in the profession. Amending duty 8 of the BSB Handbook (which says barristers ‘must not discriminate unlawfully’) with a new requirement to ‘act in a way that advances EDI’ would be counterproductive and ‘probably unlawful’, the representative body harrumphed.

The principal argument runs thus. Chambers and lawyers must comply with the law, including equalities legislation. But they cannot be coerced into acting as social engineers to bring about political ends.

More specifically: ‘An obligation on barristers to advance the ill-defined and politically contested concept of [EDI] is likely to result in breaches of the Human Rights Act 1998 by reasons of the limitations it would impose on barristers’ freedom of expression and, worse, the pressure it would impose on barristers to advocate for contested political positions.’

I would not presume to comment on the heft of this argument. But I wonder if the Bar Council is getting its briefs in a twist somewhat.

A similar obligation has featured in the solicitors code for years, and no one has turned up at the Cube brandishing a pitchfork. SRA principle 6 obliges solicitors to act ‘in a way that encourages equality, diversity and inclusion’.

The Bar Council acknowledges this, but highlights the difference between ‘encourage’ and ‘advance’ (stronger?). Ingeniously, and perhaps disingenuously, it also argues that the rule for solicitors appears mere ‘virtue-signalling’ anyway; partly because the SRA has not enforced principle 6. This is not quite true. The SRA has prosecuted for principle 6 breaches, the nuance being they were not part of a distinct cohort of work aimed at encouraging diversity.

It seems the Bar Council is engaged in the old litigation tactic of chucking as much mud as possible and hoping some of it sticks.  Don’t be surprised if that happens and the BSB backs down – or at least moderates its language.

 

Topics