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Imposing a professional obligation to act in a way that advances equality, diversity and inclusion is the wrong way to achieve this ambition, says Nick Vineall KC
Much has been done by the Bar Council, the Inns, the Circuits, the Legal Practice Management Association and Institute of Barristers’ Clerks, and the Bar Standards Board (BSB), to try to overcome unfairness or discrimination, and to improve diversity at the Bar. The intake to the practising Bar is now broadly reflective of the overall demographic (apart from the fact that women are overrepresented):
© Bar Council
But there remain real challenges with retention and progression. Despite all the efforts of the profession, there are some profoundly disquieting disparities between the earnings of men and women, and white and non-white barristers, even in the early years of practice (so this ongoing, not a historical hangover). Nobody has yet achieved a good analysis of exactly what causes these differences. There are many possible factors which could be at play: unequal prior access to educational opportunities; hours worked; discrimination by clients; unconscious bias in selection processes; people’s pre-existing contacts; and more generally what is sometimes called social or cultural capital. Perhaps there is also some straightforward unlawful discrimination within chambers – though that seems unlikely to be a major factor given the very few established occasions of it happening.
These continuing disparities in the progression of different groups at the Bar has led the BSB to suggest that the Code of Conduct should do more than merely prohibit unlawful discrimination, and should impose on barristers, by way of professional obligation, a positive duty to act in a way that advances equality, diversity and inclusion. This is understandable, and undoubtedly well-intentioned. But it seems to me to be problematic, and I hope the BSB will not proceed with the change.
In our Code of Conduct the ten core duties underpin the entire regulatory framework.
Core Duty 8 says: ‘You must not discriminate unlawfully against any person.’ That restates a legal obligation which applies to us anyway, but it means that regulatory sanctions are readily available for breaching it. It is easy to understand what it means and it is a good duty to have.
The BSB wants to change this to: ‘You must act in a way that advances equality, diversity and inclusion.’ And the BSB also proposes some new Equality Rules to explain what is required.
There is no definition of equality, diversity or inclusion in the present handbook but the BSB’s consultation tells us what it means by these words. Equality means equality of opportunity. Diversity means ‘ensuring that profession is reflective of the population it serves’. Inclusion means ‘creating a respectful environment and culture where people feel valued and are able to participate and reach their full potential’.
The BSB says that compliance with the new Core Duty and Equality Rules ‘is not necessarily to have achieved equality of outcome, but to have taken reasonable steps and to have demonstrated progress over time.’ The BSB’s purpose in making the rule change is ‘to achiev[e] behaviour and cultural change across the profession’.
Making conduct rules is the wrong way to achieve this ambition.
There are practical difficulties because there will inevitably be uncertainty as to what has to be done to satisfy the duty, and how much is enough.
But I think there is a point of principle lurking here too. Is it a proper purpose of a code of conduct to achieve cultural change? Or is the purpose of conduct rules better limited to ensuring that clients are properly served by the professionals in whom they place their trust?
The Code of Conduct is at its heart about maintaining minimum standards for our practice. Those standards ought to be focused on our professional job, which is the privilege of representing our clients without fear or favour, and that is why those minimum standards are set high. The core duties rightly focus on our duties to the court, to our clients, and to the administration of justice.
Is it appropriate for the BSB to impose on barristers a positive duty to promote various features of the profession which are plainly secondary to our core role as barristers, even where what is to be promoted is a desirable social good like equality of opportunity? Is it properly the role of the regulator to compel me, as part of the price of practising, to promote the social goods that the BSB has identified? What if I would prefer to direct that same effort to ensuring my chambers was carbon-neutral? Or to my particular conception of social justice?
It is one thing to legislate or regulate to prevent harm. It is quite another to legislate or regulate to compel certain types of behaviour, which are not an integral part of practice, on the basis that behaving that way will make the world – or the profession – a better place. ‘Do no harm’ is fine. ‘Go away and do good’ is much more problematic.
The BSB Consultation on the Proposed Amendments to the Equality Rules is open until 5pm on Friday 29 November. You can access the full consultation document at tinyurl.com/4xcstb3t and respond at: tinyurl.com/y62jmzye. The BSB has published an FAQ document on the consultation which can be viewed at: tinyurl.com/37mt28ss
Update 20/11/24: The Bar Council published its response to the Equality Rules consultation on 18 November. See also 'BSB Equality Rules amendments proposals are the wrong approach, warns the Bar Council'.
Nick Vineall KC returned to practice at 4 Pump Court after his term as Chair of the Bar 2023. Prior to that, he was Joint Head of Chambers at 4 Pump Court and sat as a Deputy High Court Judge. Nick practises in commercial, construction and financial services law. He was awarded ‘Social Mobility Bar Champion of the Year’ at the Legal 500 ESG UK Awards 2024.
Much has been done by the Bar Council, the Inns, the Circuits, the Legal Practice Management Association and Institute of Barristers’ Clerks, and the Bar Standards Board (BSB), to try to overcome unfairness or discrimination, and to improve diversity at the Bar. The intake to the practising Bar is now broadly reflective of the overall demographic (apart from the fact that women are overrepresented):
© Bar Council
But there remain real challenges with retention and progression. Despite all the efforts of the profession, there are some profoundly disquieting disparities between the earnings of men and women, and white and non-white barristers, even in the early years of practice (so this ongoing, not a historical hangover). Nobody has yet achieved a good analysis of exactly what causes these differences. There are many possible factors which could be at play: unequal prior access to educational opportunities; hours worked; discrimination by clients; unconscious bias in selection processes; people’s pre-existing contacts; and more generally what is sometimes called social or cultural capital. Perhaps there is also some straightforward unlawful discrimination within chambers – though that seems unlikely to be a major factor given the very few established occasions of it happening.
These continuing disparities in the progression of different groups at the Bar has led the BSB to suggest that the Code of Conduct should do more than merely prohibit unlawful discrimination, and should impose on barristers, by way of professional obligation, a positive duty to act in a way that advances equality, diversity and inclusion. This is understandable, and undoubtedly well-intentioned. But it seems to me to be problematic, and I hope the BSB will not proceed with the change.
In our Code of Conduct the ten core duties underpin the entire regulatory framework.
Core Duty 8 says: ‘You must not discriminate unlawfully against any person.’ That restates a legal obligation which applies to us anyway, but it means that regulatory sanctions are readily available for breaching it. It is easy to understand what it means and it is a good duty to have.
The BSB wants to change this to: ‘You must act in a way that advances equality, diversity and inclusion.’ And the BSB also proposes some new Equality Rules to explain what is required.
There is no definition of equality, diversity or inclusion in the present handbook but the BSB’s consultation tells us what it means by these words. Equality means equality of opportunity. Diversity means ‘ensuring that profession is reflective of the population it serves’. Inclusion means ‘creating a respectful environment and culture where people feel valued and are able to participate and reach their full potential’.
The BSB says that compliance with the new Core Duty and Equality Rules ‘is not necessarily to have achieved equality of outcome, but to have taken reasonable steps and to have demonstrated progress over time.’ The BSB’s purpose in making the rule change is ‘to achiev[e] behaviour and cultural change across the profession’.
Making conduct rules is the wrong way to achieve this ambition.
There are practical difficulties because there will inevitably be uncertainty as to what has to be done to satisfy the duty, and how much is enough.
But I think there is a point of principle lurking here too. Is it a proper purpose of a code of conduct to achieve cultural change? Or is the purpose of conduct rules better limited to ensuring that clients are properly served by the professionals in whom they place their trust?
The Code of Conduct is at its heart about maintaining minimum standards for our practice. Those standards ought to be focused on our professional job, which is the privilege of representing our clients without fear or favour, and that is why those minimum standards are set high. The core duties rightly focus on our duties to the court, to our clients, and to the administration of justice.
Is it appropriate for the BSB to impose on barristers a positive duty to promote various features of the profession which are plainly secondary to our core role as barristers, even where what is to be promoted is a desirable social good like equality of opportunity? Is it properly the role of the regulator to compel me, as part of the price of practising, to promote the social goods that the BSB has identified? What if I would prefer to direct that same effort to ensuring my chambers was carbon-neutral? Or to my particular conception of social justice?
It is one thing to legislate or regulate to prevent harm. It is quite another to legislate or regulate to compel certain types of behaviour, which are not an integral part of practice, on the basis that behaving that way will make the world – or the profession – a better place. ‘Do no harm’ is fine. ‘Go away and do good’ is much more problematic.
The BSB Consultation on the Proposed Amendments to the Equality Rules is open until 5pm on Friday 29 November. You can access the full consultation document at tinyurl.com/4xcstb3t and respond at: tinyurl.com/y62jmzye. The BSB has published an FAQ document on the consultation which can be viewed at: tinyurl.com/37mt28ss
Update 20/11/24: The Bar Council published its response to the Equality Rules consultation on 18 November. See also 'BSB Equality Rules amendments proposals are the wrong approach, warns the Bar Council'.
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