Practitioners' discontent over the bar regulator's plan to impose a positive duty to promote equality in the profession erupted into open rebellion yesterday. In a forthright response to the proposals, bar chair Sam Townend KC warned that the new duty would be counter-productive and 'probably unlawful'. 

In September the Bar Standards Board proposed amending duty 8 in BSB Handbook which says barristers  ‘must not discriminate unlawfully’ with a new requirement to ‘act in a way that advances equality, diversity and inclusion’. Solicitors are already required to 'act in a way that encourages equality, diversity and inclusion'.

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The proposal attracted widespread criticism from the profession. In his response published yesterday Townend said it is not clear how the measure is going to work or what it seeks to achieve.

‘The Bar Council is deeply committed to supporting and improving equality, diversity and inclusion at the bar,’ said Townend. ‘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.’

Townend suggested that if the BSB’s proposals were enacted they might be subject to legal challenge which could become a lengthy and costly distraction from the task of improving equality, diversity and inclusion across the profession. He asked the BSB to rethink these proposals and work with the Bar Council and others to ensure an effective regulatory framework and the necessary guidance to help barristers comply.

The BSB's consultation, which closes this month, states: ‘We believe it should be a core expectation of all practising barristers that they demonstrate an appropriate commitment, through their practice, to equality, diversity and inclusion. This will form the basis of our future regulatory action in this area and will be central to achieving behaviour and culture change across the profession.’

The regulator also wants to look again at rules which stipulate that chambers and entities have at least an equality and diversity officer and a diversity data officer. The BSB says this role is in practice often delegated to a junior member of chambers from a minority group, and that senior members may be avoiding engaging directly with EDI issues.

The Bar Council said that, rather than abolishing the requirement to appoint these officers, the BSB should bring in measures to reinforce and enhance the diversity officer role.

Townend added: ‘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.’