Regulators under fire

Barristers and solicitors attack planned regulatory reforms

The Bar Standards Board has “no authority to impose its own views of social justice on practitioners, as it is now seeking to do,” two leading barristers said yesterday.

Andreas Gledhill KC and Lord Wolfson of Tredegar KC urged the barristers’ leader Sam Townend KC to oppose what they describe as “coercive, illiberal and dangerous” reforms that their regulator proposed in a consultation paper issued earlier this month. As I reported at the time, barristers in England and Wales would be under a professional duty to “act in a way that advances equality, diversity and inclusion” if the proposals are implemented.

Gledhill and Wolfson raise concerns about the regulator’s proposal to impose this new positive duty on barristers, replacing the existing core duty in its handbook that currently tells barristers they “must not discriminate unlawfully against any person”.

To give effect to that change, the KCs say, their regulator would impose an “outcomes-focussed” and “prescriptive” set of requirements, include obliging barristers’ chambers to adopt “action plans” with a view to achieving “demographic change in the profession”. By “equality”, the Bar Standards Board means “equality of opportunity” for the under-represented groups referred to in its consultation paper.

In a letter to the chair of the bar, Gledhill and Wolfson say:

We unequivocally support equal opportunity, and implacably oppose discrimination in all its forms, both overt and covert. Our disagreement with the consultation paper is not with those aims: it is with the measures the Bar Standards Board is proposing to adopt with regard to the professional obligations of barristers, which go well beyond those aims and, arguably, beyond the proper remit of a regulator…

The proposed new duty is to “act in a way that advances equality, diversity and inclusion”. This has no foundation in statute or case law. It is vague, uncertain and will, in some cases, turn on highly subjective value judgments. No-one should be exposed to the risk of disciplinary action on this basis.

It is one thing to penalise for breach of a bright-line legal prohibition. It is quite another to do so for failing positively to promote a diffuse policy objective with no legal basis.

Accusing the Bar Standards Board of engaging in social engineering to bring about demographic change, the two barristers suggest that the proposals would lead to “quotas in all but name”.

They continue:

We believe this is likely to have the effect of undermining public confidence in precisely those members of the bar the Bar Standards Board professes to be seeking to help (members of currently under-represented groups). If so, this would be deeply regrettable.

Leaving aside the question of the lawfulness of this policy, there is the problem that it will likely incentivise unlawful conduct by barristers (or chambers) concerned to protect themselves from disciplinary proceedings, — “positive” discrimination. There have been well-documented recent instances of this… Setting targets based on certain selected characteristics risks outcomes that are themselves unfair…

The Bar Standards Board’s objective of imposing conformity with its equality, diversity and inclusion agenda by way of binding professional obligations, on pain of disciplinary proceedings, is coercive, illiberal, and dangerous. We greatly doubt that when those who drafted the Legal Services Act 2007 framed the regulatory objectives so as to include the promotion of a “diverse… legal profession”, they had in mind that regulators would subsequently rely on this to dictate unanimous adherence to their own views on politically controversial issues.

In seeking to do so, the Bar Standards Board is in fact undermining another objective — the independence of the legal profession.

The Bar Council has promised to scrutinise the regulator’s proposals carefully before responding. Townend has urged other barristers to do the same. Gledhill and Wolfson are now raising the stakes by asking whether the regulator’s proposals are even lawful.

Woke

That might be a question for Akua Reindorf KC, a barrister who specialises in human rights, employment and discrimination law.

Akua Reindorf KC

Reindorf, who’s also a commissioner at Equality and Human Rights Commission, discussed the proposed reforms with Lord Macdonald of River Glaven KC and Tim Owen KC in an episode of their law and politics podcast Double Jeopardy that was released yesterday.

The existing core duty on discrimination was fine, she believed, and its proposed replacement was “deeply problematic” — as well as being “extremely poorly explained” in the regulator’s consultation document.

“I hate to use the word ‘woke’ but I am going to have to use it,” Reindorf said. Barristers “should not be placed under a duty to promote an ideological agenda with which they disagree”.

She accused the Bar Standards Board of assuming that its agenda was uncontested — that this was something everybody should sign up to. But that was not true. “The gritty reality is that discrimination is always rooted in a conflict of rights, whether actual or imagined.”

Would this new duty mean she should not represent a particular client, Reindorf asked. How would that work with the cab-rank rule, which requires barristers to accept cases irrespective of any “belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client”.

And how would barristers demonstrate that they had acted in a way that advanced equality, diversity and inclusion? Would they have to fill in a form every year? What punishment would they receive if they failed to show they had complied with the new duty? “The whole thing to my mind is not workable, to put it at its lowest,” Reindorf said.

Solicitors

Meanwhile, the Solicitors Regulation Authority has come under fire over its plans to introduce a new framework of higher fines. The City of London Law Society described the proposals as arbitrary, inconsistent and unfit for purpose.

In comments quoted by the Law Society Gazette, Iain Miller, a regulatory specialist at Kingsley Napley who drew up the City solicitors’ response, described the proposals as confused.

“It looks as if the Solicitors Regulation Authority has offered a policy without thinking through its ramifications, without a clear grasp of the essentials and without any proper consideration of the underlying law,” he said. “We urge the Solicitors Regulation Authority to reconsider its proposals.”

The City of London Law Society suggested that the proposed changes, if approved by the Legal Services Board, could be vulnerable to a challenge by judicial review. Any solicitor or firm subject to these new rules would be entitled to raise the lawfulness of the scheme as a defence, their representatives said.

Comment

Regulators should listen to those they regulate. At its best, regulation is a two-way process, a dialogue in which regulators and the regulated community learn from each other. Having consulted, the Bar Standards Board and the Solicitors Regulation Authority should welcome these responses and pay heed to the advice they receive.

Otherwise, their own regulator — the Legal Services Board — should step in and order them to concentrate on the issues that really matter. These include large-scale alleged frauds in the solicitors’ profession that their regulator failed to prevent and which honest practitioners will have to pay for.

If these challenges end up in the courts, practitioners will have to pay even more — regardless of who wins.