The Bar Standards Board (BSB), which regulates barristers in England and Wales, has shelved a proposal to introduce a core duty requiring barristers to “act in a way that advances equality, diversity and inclusion” following claims it lacked clarity and would be unenforceable.
In a consultation published last year, the BSB recommended amending one of its core duties from the existing obligation not to discriminate to a positive duty to advance or promote diversity, equality and inclusion (DEI), in line with similar obligations imposed on solicitors.
The Bar Council of England and Wales strongly opposed the move, arguing it lacked clarity, would be unenforceable and risked undermining wider DEI initiatives. It also warned the change could prompt legal challenges, calling it a “lengthy and costly distraction” from existing work.
The BSB said it would now work with the profession to develop a strategy to improve DEI, including a plan to monitor progress. It said the volume of responses had prompted it to “reflect on our objectives and how best to achieve them in the most proportionate manner”.
It also promised to work more “collaboratively” in future, following criticism from last year’s Bar Council chair, Sam Townend KC, that it had been unwilling to engage substantively with the Bar Council.
BSB director general Mark Neale said: “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.”
BSB chair Kathryn Stone said: “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.”
She added that the BSB “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”.
Opposition to the proposal included interventions by two senior barristers – One Essex Court’s Andreas Gledhill KC and Conservative shadow Attorney General Lord Wolfson of Tredegar KC – who wrote to the Bar Council claiming the proposals would lead to “quotas in all but name”.
Spearheading the Bar Council’s response to the consultation last November, Townend said: “The Bar Council is deeply committed to supporting and improving equality, diversity and inclusion at the Bar. 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.”
Current Bar Council chair, Barbara Mills KC, who leads an all-female team of officeholders, reaffirmed its commitment to DE&I while welcoming the BSB’s decision to maintain the existing “clear and definitive duty not to discriminate”. She said the regulator had “genuinely listened to feedback from the Bar”.
Mills said the Bar Council had “significant concerns that a positive duty, as proposed by the BSB, would have taken us backwards”.
Writing on LinkedIn, Simon Myerson KC, who submitted a joint response on behalf of the Inns of Court, commented: “I accept the BSB wished to improve diversity, but the proposals were not properly thought through. I am pleased there has been a rethink.”
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