The barristers’ regulator has dropped controversial plans to impose a new diversity and inclusion duty on the profession.
The Bar Standards Board said today that following feedback, the proposal for a core duty to ‘act in a way that advances equality, diversity and inclusion’ will not be taken forward.
The BSB Handbook states that barristers ‘must not discriminate unlawfully’, but regulators wanted to bring the duty into line with that of the solicitors’ profession. But the proposals triggered a backlash from representative body the Bar Council, which warned that such a duty would be counter-productive and ‘probably unlawful’.
Mark Neale, director general of the BSB, said today: ‘The challenge here is a practical one, not an ideological one: to ensure that merit, not background, determines success at the bar.
‘Despite progress, there is still unequal opportunity to join and progress at the bar for female barristers, barristers from minoritised backgrounds and disabled barristers. At root, this requires a change of culture. Such a change requires the support and active collaboration of the profession. We are committed to working constructively to make progress in areas like this where we have shared objectives.’
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The BSB consulted last September on how best to promote equality of opportunity in the profession. It said there were barriers to entry, retention and progression for women, minority ethnic groups and people with a disability who are all underrepresented at the bar. Female and minority ethnic barristers also earn less on average than their white male counterparts.
But the proposed core duty to advance equality, diversity and inclusion attracted criticism for being too prescriptive and creating uncertainty about what constitutes advancement of equality.
The BSB admitted that responses to its consultation provided an opportunity to ‘reflect on our objectives and how best to achieve them in the most proportionate manner’. It pledged to work ‘collaboratively’ in future with the profession to address barriers to equality.
Significant progress, it concluded, can be achieved within the existing framework and by setting expectations for the next five years. The BSB will publish a plan for monitoring progress and evaluating impact, with a commitment to revisit rules and guidance where necessary.
Kathryn Stone OBE, chair of the BSB, added: ‘The board has been impressed by the quality and thoughtfulness of the response to our consultation from the profession. It underlines the scope for a collaborative, rather than rule-based, approach to achieve shared objectives.’
Responding to the announcement, bar chair Barbara Mills KC said: 'The Bar Council is deeply committed to equality, diversity and inclusion at the bar which is why we had significant concerns that a positive duty, as proposed by the BSB, would have taken us backwards. We explained that a change to core duty 8 would lack the clarity needed for barristers to be able to comply.
'The proposals were not only impractical to implement, but they would also have been open to costly legal challenge that would hinder progress on EDI initiatives.
'We therefore welcome the BSB’s reflection on our concerns and the decision not to change but to maintain the current core duty – a clear and definitive duty not to discriminate. This is the right decision, and we’re pleased that the BSB has genuinely listened to feedback from the bar.
'We will engage fully in the development of the new strategy drawing on our expertise in delivering programmes and initiatives on culture change at the bar.'
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