A proposed new duty requiring barristers to advance and promote equality, diversity and inclusion would be “unlawful and misguided”, the incoming chair of the Bar Council said last night.
Barbara Mills KC, who took over this month as leader of the 18,000 barristers in England and Wales, said she was concerned that the bar’s regulator was seeking to use the barristers’ code of conduct “as the vehicle to attempt to change our culture”.
Last September, the Bar Standards Board launched a consultation on replacing a core duty in its handbook that requires barristers not to “discriminate unlawfully against any person” with a pro-active duty to “act in a way that advances equality, diversity and inclusion”.
Barristers’ leaders were concerned that the proposals would hinder progress towards a more diverse profession, “given what we believe to be ambiguity and potential ineffectiveness of the regulations as proposed”.
The consultation has generated more heat than light and is a great reminder of the care we must take that any attempt to improve equality, diversity and inclusion does not create unhelpful division.
The road to hell, it is often said, is paved with good intentions.
In her first interview as incoming chair of the barristers’ representative body, Mills told me last month she had been encouraged by remarks made to me in September by Mark Neale, director-general of the Bar Standards Board. “It’s a very genuine consultation,” he assured me in response to criticism I had published. “We absolutely want to hear what the profession and individual barristers have to say.”
You can hear my interview with Mills by clicking on the ► symbol at the top of this page. There is no paywall this week and the podcast can also be heard on the Counsel magazine website and other platforms. I have written it up for publication in Counsel and you can now read it online. And the full text of Mills’s inaugural address is published here.
Mills said last night she was keen to work with the regulator and “to open meaningful dialogue”. She also encouraged individual barristers to come and talk to her if they disagreed with her position on equality, diversity and inclusion.
Unlawful
Although Mills was concerned that the framing of the proposed new duty to deliver a more diverse profession was unlawful and misguided, she said nothing more about the laws it might breach.
However, the Free Speech Union — which describes itself as a non-partisan, mass membership public interest body that stands up for the speech rights of its members and campaigns for free speech more widely — has commissioned legal advice on the issues Mills raised.
In a 23-page opinion dated 29 November 2024 which the Free Speech Union have kindly allowed me to publish, Jason Coppel KC and Tom Cross say that adopting the proposed core duty and the proposed equality rules to meet stated equality outcomes would be unlawful and therefore liable to be quashed on a claim for judicial review.
That, they add, would be because:
the rules would be directly discriminatory against at least some barristers;
alternatively, they would constitute indirect discrimination against some barristers;
they would be incompatible with barristers’ rights under articles 9 and 10 of the human rights convention and thus breach section 6 of the Human Rights Act 1998; and
they may require barristers to commit unlawful discrimination in offering pupillages or tenancies, contrary to the Equality Act 2010.
Violence against women and girls
As the first family practitioner to chair the Bar Council since 1988, Mills said that another of her priorities was to raise the profile of the family bar and help the government in its mission to halve violence against women and girls.
This could be prevented in some cases through early intervention. It also required a clear definition — “one that encompasses all forms of violence and harmful practices specifically aimed at women and girls”.
The family courts were ideally placed to tackle this work but they needed effective and sustained investment.
“At the very least,” she said, “every complainant and every alleged perpetrator should have access to legal advice and representation in the family court.”
Wellbeing and harassment
Wellbeing was another priority, she said:
Whilst much is said about wellbeing now, the emphasis remains centred around crisis management.
What I would like to see in the profession is wellbeing losing its stigma as a sign of weakness and elevated to the same non-negotiable level as having an accountant or having insurance.
Baroness Harman KC, a former deputy leader of the Labour Party, had been commissioned by Mills’s predecessor Sam Townend KC to conduct an independent review of bullying and harassment at the bar. That followed a Bar Council report which found that 44% of respondents had experienced or witnessed bullying, harassment or discrimination in the previous two years — an increase on previous survey results.
“The review provides an important opportunity to reset our culture and improve the working lives of all in our profession and I intend to give it the priority it deserves,” Mills said last night.
“I am committed to working with Baroness Harman and providing her with the support she needs to finalise her review. I look forward to working with her and the profession to consider the findings and her recommendations for action.”
Equality and diversity
With Kirsty Brimelow KC as vice-chair and Lucinda Orr as treasurer, Mills said it was the first time in the Bar Council’s 131-year history that all three of its office holders were women.
Mills is also the first person of colour to lead the bar. Calling on others to join her in representing their profession, she recalled an expression she had learned while growing up in Ghana: “If you want to go fast, go alone. If you want to go far, go together.”
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