Equality, diversity and inclusion
Barristers fear ‘detrimental consequences’ after new duty proposed
Barristers in England and Wales will be under a duty to “act in a way that advances equality, diversity and inclusion” if proposals by their regulator are implemented.
The Bar Standards Board has launched a consultation on replacing a current “core duty” in its handbook which tells barristers they must not “discriminate unlawfully against any person”. The new requirement would apply to all barristers when practising or providing legal services in other ways.
Explaining its proposals yesterday, the regulator said:
Our research into pay at the bar shows that female barristers are likely to earn less than male barristers and that those who are from minoritised1 ethnic backgrounds are likely to earn less than white barristers.
We have also found that criminal, family, and immigration law have the highest proportion of pupillage recruitment from those who attended state schools, whereas areas of practice that may attract higher fees, such as commercial law and personal injury law, have the highest proportion of pupils who attended fee-paying schools.
Similar patterns can be seen in relation to ethnic background. In addition to these inequalities, surveys repeatedly show that bullying and harassment remain prevalent, indicating the need for cultural change at the bar.
In a separate move, the regulator is considering whether barristers’ chambers should take steps to ensure that their premises are fully accessible. That would mean providing access to buildings and facilities for people with mobility impairments.
Some barristers practise from premises that date back to the 17th century. But the Bar Standards Board thinks it might be easier for chambers to modify listed buildings if accessibility becomes a regulatory requirement.
Outcomes
A further proposal in the consultation paper is that barristers should take reasonable steps to promote specified outcomes. These are to:
eliminate unlawful discrimination and advance equality of opportunity, particularly in relation to recruitment, retention and progression;
prevent bullying, harassment, and victimisation, and have systems in place to respond to such behaviour;
ensure equal access to their services; and
promote an inclusive culture.
Bar Council response
The Bar Council, which represents barristers, accepts that providing an effective regulatory framework on equality, diversity and inclusion is essential. It is “deeply committed” to supporting and improving these objectives.
But it added that “radical change is certainly disruptive and may have unintended detrimental consequences”.
The representative body has previously raised concerns over the proposed move to outcomes-based regulation. It said earlier this year:
An outcome is, by its nature, an inherently vague exposition of a desired result. Barristers generally work long hours in an intellectually demanding job. Reading, considering and understanding outcomes, then devising ways to achieve them, is not a task that they have time or incentive to carry out.
Sam Townend KC, chair of the bar, said yesterday that the Bar Council “will need to consider whether the Bar Standards Board’s proposals for outcomes-based equality, diversity and inclusion regulation sufficiently address the challenges we identified”.
He added: “It is clear that the proposals in the Bar Standards Board’s consultation will affect the profession significantly and the Bar Council will scrutinise the consultation carefully. We encourage everyone at the bar to do the same.”
“Minoritised”, in the consultation paper, refers to those who are under-represented and/or disadvantaged within the profession.
And another thought. It's 6.30 p.m. and it's been a long day.
A, B and C are in the clerks' room.
A says "Who's up for a pint?"
B says "I am".
C is a Muslim and says "Not me, but I'll join you for a coffee".
"Fine" says A "there's a coffee machine in the Dog and Duck".
"Sorry" says C "but pubs are Haram".
"Right you are" say A and B "see you in the morning" and go off to the pubs.
Are they in breach of their duty?
Well, I can only speak as a laywoman here, but I took a look at the report provided, and I am not entirely convinced that their conclusions match the data.
On several graphs, the earnings of female barristers exceeded those of men up to around the £90-150k mark, after which men earned more, but at a smaller percentage. Even with the ethnic minority comparisons, white male barristers didn't tend to earn much more (sometimes even earning less) until after £90-150k.
The report stated that there were 'notable differences' between the types of law practiced along gender and ethnic lines, but didn't specify what those were.
I looked through the conclusions given, and I couldn't really find any instance of discrimination, although the report says that there's still a likelihood of lesser earnings for women and ethnic minority barristers compared to white male barristers with a similar background and seniority.
Be that as it may, the fact that female barristers are more likely to work part-time than men is notable, since this has been flagged as a reason for the gender pay gap in other professions like medicine. For ethnic minorities, the report stated a 'perceived bias in the allocation of work', but few details were given.
I am far from a statistician or a data head, so if anyone can see something in these numbers that I'm missing, by all means, let me know.
That being said, I have a natural bias against attempts to force everyone to achieve the same outcome. If this report acknowledges a multiplicity of reasons for these disparities, very few of which appear to be the result of intentional discrimination (unless I am mistaken), and that there are 'notable differences' in legal paths according to gender and ethnicity, then what "solution" is proposed? Furthermore, it is already the law of the land that discrimination is forbidden.
These proposals raise more questions than answers.