As a barrister my professional duty is to provide the best legal advice out of court and to represent my client’s interests fearlessly in court. For good and obvious reasons there are all sorts of things we are not allowed to do: mislead the court, discriminate between clients, handle clients’ money, and so on. Rather more nebulously, but perfectly reasonably, we are not allowed to bring the profession into disrepute.
But the Bar Standards Board, the body that regulates – and disciplines – the profession wants to go much further and add a further positive duty to tackle “counter-inclusive misconduct.” To this end it has proposed that individual barristers should have a duty to “act in a way that advances equality, diversity and inclusion.”
Once adopted – and I have little confidence that the Board’s consultation process will prevent its adoption – barristers will be under a professional duty to become social engineers.
Failure to act in a way that advances equality diversity and inclusion will be a disciplinary offence, for which we could be fined or have our careers destroyed.
There will be many barristers who consider such a duty as an unnecessary and even slightly sinister interference with their independence. But even from a left-leaning lawyer’s perspective the vagueness of the proposed duty is worrying.
Who is to say whether my actions advance or inhibit equality, diversity and inclusion?
The answer, at least until the matter reaches a disciplinary tribunal, is a Bar Standards Board that seems mightily preoccupied with these objectives. It has an Equality and Diversity Strategy, a Race Equality Task Force, a Religion and Belief Task Force and a Disability Task Force.
Some indication of the way in which the BSB would interpret the new duty is provided by its “anti-racist statement” which asserts that:
“Racism is the major obstacle to racial equality. ‘Anti-racism’ recognises this and is the active process of identifying and eliminating racism in its many forms, by changing the systems, policies and practices, structures, attitudes and cultures which inhibit racial equality.”
Clearly it is wrong to discriminate on the grounds of race, or other “protected characteristics,” as the existing rules and the law itself, make clear. But if the BSB’s proposal is adopted it opens up the prospect that we may be guilty of “counter-inclusive misconduct” simply by not “advancing” their anti-racist agenda.
And that agenda is extremely radical. There is a section on the BSB’s website entitled “Racial Equality and Diversity in the Legal Profession” where Board member Leslie Thomas KC (a member of the Racial Equality Task Force) sets out his own views, which appear to be strongly endorsed by the BSB’s Director General:
“There is a stark binary: anti-racist or racist. … being a ‘not racist’ is a racist in denial, whereas an anti-racist is a person who is willing to admit one’s own wrongs and take an active approach to identifying and bettering oneself.”
In other words, unless you demonstrate by your actions that you agree with us you are, at best, a “racist in denial.” If that is really the collective view of the BSB it is rather alarming.
But of course not everyone agrees that “racism is the major obstacle to racial equality.” It is a complex and hotly debated issue. Classical Marxists – admittedly rare birds at the bar – certainly don’t, and nor do many liberals and most conservatives. Even those who accept the premise will disagree about which particular “policies, practices, structures, attitudes or cultures” should be changed. Some may even dare to suggest, quietly, that perhaps some of them should remain unchanged; isn’t that, in fact, rather the point of conservatism?
The BSB has issued hectoring and tendentious advice about racial issues but so far has been surprisingly quiet about the sex and gender culture war. You may be shocked to learn that it does not even have a Sex and Gender Equality Task Force. Somehow I doubt that that will last, and it is not difficult to guess the direction in which the BSB will require barristers to “advance gender diversity.”
I am sure that most barristers want nothing to do with this political activism. We want a regulator that roots out the dishonest, the bullies, the sex pests and the criminals, but otherwise leaves us alone. There is a crisis of retention at the criminal bar (and it is paralleled in the solicitors’ profession), largely because of the generally poor pay and relentless pressures of the job. It is one of the main reasons why the Crown Court backlog of unheard cases continues to grow. If we are to be forced to advance a political agenda as a condition of doing our jobs there are plenty more who will decide that enough is enough.
This article first appeared in The Spectator on 10th September 2024
I completely agree with this. This initiative should be stopped in it’d tracks.
I’m shocked that some stranger could have the presumption to accuse me of being a “racist in denial.” Now I could recite all the usual reasons as to why I’m not racist – and I consider them to be genuine and sincere – but that shouldn’t be necessary so I’m not going to. Now if someone asks me whether or not I’m in agreement with a statement regarding racism or anti-racism I think I have the right to agree, disagree, argue, discuss etc. But it really is a step too far for statements such as the one I’ve just mentioned.
Well said, particularly the final paragraph
The BSB is not fit for purpose
Also, in disciplinary cases it takes far too long to prepare cases for the Bar Tribunal
If you are white it’s OK to call you a gammon. If brown, calling you a coconut is just fine.
These are both undeniably racist terms. Yet presumably in our brave new world all barristers will be instructed not to view them as such.
Sometimes I really do wonder whether the only way to rescue society is by the judicious use of machine gunners: diverse, caring, inclusive machine-gunners, of course.
Strange this should surface at the same time these issues are being challenged in industry and commerce in the USA. Clearly it hasn’t recently become an issue. Was it one proposed by the previous government?