Regulator stands firm

Bar Standards Board seeks to ‘allay misconceptions’ about diversity duty

A new professional duty on barristers to “act in a way that advances equality, diversity and inclusion” would not override the bar’s cab-rank rule, their regulator has assured me in an interview.

Mark Neale, director-general of the Bar Standards Board, was responding to a piece here last Wednesday in which I summarised the concerns of three leading counsel about proposals which are currently out for consultation.

Mark Neale

Would this new duty mean a barrister should not represent a particular individual, Akua Reindorf KC had asked on the Double Jeopardy podcast. How would that work with the rule that requires barristers to accept cases irrespective of any “belief or opinion… as to the character, reputation, cause, conduct, guilt or innocence of the client”?

The new duty “certainly doesn’t” override that rule, Neale told me:

We, as the regulator, have always been strongly behind the cab-rank rule, which ensures that barristers will represent all clients without discrimination and, equally, that barristers themselves are not identified with their clients or their clients’ causes.

I think those two principles are incredibly important in underpinning access to justice. So that’s one important misconception it’s important to allay.

Shouldn’t that have been made clear? Didn’t the consultation paper need to be revised?

“I don’t think so,” Neale replied. “Where our equality rules are coming from here is primarily in the area of practice management — the responsibility that the great majority of barristers who are self-employed have as members of chambers to ensure that chambers are running in ways that promote equality and diversity.”

The second assertion that Neale challenged had been raised by Andreas Gledhill KC and Lord Wolfson of Tredegar KC in a letter last week to the Bar Council, the barristers’ representative body. Accusing the Bar Standards Board of engaging in social engineering to bring about demographic change, the two barristers suggested that the proposals would lead to “quotas in all but name”.

Not so, the regulator insisted. “The other concern I’m very happy to allay is that we are, in any sense here, backing or mandating quotas,” Neale told me. “We are absolutely not. The equality rules certainly do not imply, either explicitly or implicitly, that chambers should adopt quotas.”

Shouldn’t the regulator clarify any new core duty before it was introduced?

“We will absolutely consider that,” he said. “Obviously, I don’t want to run ahead to the end of the consultation — and we’ll want to hear all views — but I absolutely see that point.”

The Bar Standards Board’s objective, he explained, was to find a regulatory framework that would support objectives that the regulator and the profession had in common — which were to promote diversity and inclusion.

“So that’s where these proposals to revise our equality rules are coming from. It’s a very genuine consultation. We absolutely want to hear what the profession and individual barristers have to say. We’ve got a whole series of engagement events organised to talk to the profession between now and the end of the consultation in November.”

In the meantime, Neale was happy to respond to the criticisms I reported last week. I have summarised them in the headlines that follow and then added the director-general’s responses:

Coercive, illiberal and dangerous?

“Quite the contrary. This is liberal. This is about ensuring that chambers are open and inclusive to barristers and pupils of all views and all backgrounds.”

Why move to outcomes-focussed regulation?

“We’re operating very much with the trend of regulation more generally… I can understand why that may seem a little uncomfortable to barristers used to black-letter law but outcomes-focused regulation gives chambers the discretion to pursue outcomes in ways that are appropriate to the size, scale, specialism and the particular challenges that a chambers may may face.”

Beyond proper regulatory aims?

The Legal Services Act 2007 includes “encouraging an independent, strong, diverse and effective legal profession” among its regulatory objectives, Neale reminded me. “So I think where we’re squarely within the scope of our remit.”

But why change the current rules? Surely they were already within the scope of that remit?

Of course. But we are proposing a proactive duty where currently there is a more passive duty. That’s because of the very important functions that chambers have in overseeing recruitment to the profession, the development of barristers and the allocation of work.

We want barristers who are members of chambers to be proactive in ensuring that policies and practices promote inclusion, equality and diversity. But that’s the subject of the consultation. We’ll be very interested to hear what barristers and the profession have to say.

No foundation in statute, vague and subjective?

“I wouldn’t agree that this is unprecedented. The Equality Act makes rather similar stipulations on public bodies, for example.

“I have said many times in the past that enforcement action in this context would be a last resort and not a first resort. As the regulator, we very much want to work with barristers and chambers to secure shared objectives. And, even as a last resort, we wouldn’t take enforcement action against chambers — or the barristers who comprise a chambers — who are, in good faith, seeking through their policies and practices to promote diversity and equality of opportunity.”

Penalties for failing to promote a diffuse policy objective?

“We, the Bar Standards Board, are by no means alone in moving to an outcomes-focused approach — which does give chambers much more discretion about how to pursue shared objectives.”

Undermining public confidence in under-represented groups?

“I don’t think that our proposals do undermine public confidence. But of course that’s part of the purpose of the consultation, which will go wider than the profession.

“We will want to hear whether a wider range of stakeholders, particularly organisations representing consumers, feel that our proposals are supportive of public confidence or will detract from public confidence. And of course, if the evidence is that this would detract from public confidence, then we will think carefully…

“It’s great that the proposals have already generated the discussion and debate that they have. It’s a very important debate to have.”

Incentivising unlawful positive discrimination?

“The legal prohibition against discrimination remains absolutely in place…There’s no suggestion here that we are supporting or mandating quotas and, equally, we’re not supporting or mandating positive discrimination that would discriminate against other groups.”

Requiring adherence to the regulator’s views?

“I’d emphasise that this is non-ideological. We’re not advocating a particular set of views here. I think the profession would share our objective of promoting diversity. That’s what we’re seeking to do. We’re seeking, through these proposals, to help ensure that chambers are places in which barristers and pupils of all backgrounds and views are able to thrive.”

Poorly explained core duty?

“I think it’s well explained… We will be very interested to hear views as part of the consultation. And where we can explain ourselves better, we’ll definitely do so.”

Woke?

“This is absolutely not an ideological initiative. The underlying principle here is that barristers of all views and all backgrounds should be able to thrive in chambers.”

Regulator’s agenda uncontested?

“There is very little disagreement between the regulator and the profession that the profession should be reflective of the society that it serves. So I don’t agree with that.”

How can barristers demonstrate compliance?

“In the context of enforcement, we want to see barristers as members of chambers being proactive in scrutinising chambers’ policies and practices to ensure that they are supportive of diversity, equality, inclusion…

“We’re not going to look over everybody’s shoulders. But, to give you some examples,

• you’d want to ensure, as a member of chambers, that your approach to recruitment was was fair and open;

• you’d want to ensure that the chambers was monitoring the distribution of work, so that you and other members of chambers could be satisfied that there was a fair distribution of work;

• you’d want to be satisfied that chambers in organising, marketing or social events was not holding events at times and on days when some members of the chambers would be unable to attend.”

Does this affect sole practitioners?

“As we said in a separate consultation paper on the role of chambers, we absolutely recognise that some of these stipulations wouldn’t apply to a sole practitioner.”

A tick-box exercise?

“This is just the opposite of that. The virtue of outcomes-based regulation is that it enables the chambers to take an approach that is apt for its own scale, size, circumstances, challenges. So there are no there are no tick-boxes here.”

Unworkable?

“The whole purpose here is to establish a regulatory framework which is supportive of diversity so we’ll want to hear what people have to say as part of the consultation on that.”

Comment

I wrote last week that regulators should listen to those they regulate. The Bar Standards Board is certainly listening. Whether it is heeding remains to be seen.

The consultation closes on 29 November.

Update 15 October: the Bar Standards Board recently published a series of answers to frequently asked questions. Some of these questions were raised here on 25 September.