The Bar Standards Board has an equality and diversity strategy, a race equality taskforce, a religion and belief taskforce, and a disability taskforce. At the Bar Council’s annual conference in July, chair Sam Townend KC (pictured) called on the watchdog to let the representative body lead work on EDI, suggesting that the board would do better to focus on improving its own performance.

Ignoring Townend’s counsel, last month the BSB proposed shaking up professional conduct rules to give barristers a positive duty to act ‘in a way that advances equality, diversity and inclusion’. Current rules require only that barristers do not ‘discriminate unlawfully against any person’.

The change would bring the rules for barristers in line with those for solicitors, whose code of conduct puts them under a duty to ‘act in a way that encourages equality, diversity and inclusion’. But they have exposed the bar’s regulator to accusations of both ‘regulatory over-reach’ and hypocrisy.

The plan has been widely criticised as inappropriate and vague, and for compromising barristers’ independence.

Writing in the Spectator, Matthew Scott, a criminal barrister at London’s Pump Court Chambers, suggested that it will put barristers ‘under a professional duty to become social engineers’; while Allison Bailey, known for her gender-critical views, said it ‘smacks of regulatory overreach’.

Bailey also alleged that so-called EDI ‘has become synonymous with trans activism, the removal of single-sex protections and rights in the workplace and elsewhere, and the unlawful discrimination and victimisation of women’, to the detriment of tackling other forms of discrimination and inequality.

In a joint letter, former justice minister Lord David Wolfson KC and Andreas Gledhill KC 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 pair suggested the proposals appear to ‘anticipate the imposition of quotas in all but name’ and would encourage unlawful positive discrimination.

Ironically, just as the regulator is seeking to bolster its EDI credentials, the board stands accused of sex discrimination. Feminist family barrister Charlotte Proudman argues that the BSB discriminated against her by deciding to charge her with professional misconduct over comments she made criticising a judge on Twitter.

Proudman faces five charges in relation to a 14-post social media thread, accusing a judge of having a ‘boys’ club’ attitude in a family law case that she lost two years ago.

Proudman voiced concern over the judge’s tone and use of language, which she alleges minimised allegations of domestic violence.

In her defence, through her barrister Alison Padfield KC, Proudman argues that her tweets were a fair summary of the facts set out in the judgment and demonstrate her ‘sincerely held concerns’.

Padfield argues that the BSB has consistently failed to take action against male barristers after they have made critical comments about other judges and about Proudman on X/Twitter, including calling her a ‘repellent person’ and a ‘vile narcissist’.

She brands it ‘unfathomable’ that the BSB has charged Proudman when it has taken no action against nine male barristers who called the ruling of another judge ‘unfathomably stupid’, ‘idiotic’, ‘pretty bonkers’, ‘unlawful’ and ‘illegal’.

Padfield also criticises as ‘incomprehensible’ the regulator’s decision not to bring charges against the campaigning KC, Jolyon Maugham, over comments he made about a High Court judge. Maugham called Mrs Justice Natalie Lieven a ‘fallen hero’ for her work ‘to roll back trans rights, to empower transphobia and transphobes in domestic public discourse’. The BSB accepted that the tweets represented his ‘sincerely held view and did not amount to gratuitous abuse’ and said that he was entitled to make them due to his right to free speech.

On the face of it, Proudman has a strong case. A tribunal last month rejected her application to strike out the charges but allowed her to argue her discrimination claim before a full tribunal, rejecting the BSB’s submissions that it was beyond the tribunal’s competence.

The tribunal judge also said that Proudman’s beliefs were undoubtedly genuine and she was entitled to speak in support of them – subject to her professional obligations.

That hearing was in private – journalists were not permitted to observe or make submissions to be allowed to attend. Directions hearings are normally in private, but Proudman asked for hers to be public.

It is understood that the BSB opposed her request in order to protect the identities of the tweeting male barristers.

The hearing of Proudman’s case is expected to take place in December – in public, as is usual.

A case with an even higher media profile looms. Jo Sidhu KC, former chair of the Criminal Bar Association, is facing misconduct charges in connection with a series of sexual harassment complaints. His representative Brett Wilson LLP said again this week that neither he nor the firm will be making any comment.

No forthcoming hearings are listed for Sidhu on the tribunal’s website; but the regulator and tribunal will doubtless be keen to avoid any hint of a lack of transparency in that case too.

Catherine Baksi is a freelance journalist and qualified barrister

Topics