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We are very grateful for the large number of responses (over 100) to the Bar Standards Board (BSB) Equality Rules consultation we have received to date. We are here to listen and engage with the Bar and we will continue to engage with stakeholders until the end of the consultation period at 5pm on 29 November 2024.
Since the consultation launch, we have often been asked why the BSB has suggested a change to Core Duty 8 and is now proposing an amendment from ‘you must not discriminate unlawfully against any person’ to ‘you must act in a way that advances equality, diversity and inclusion’.
Our EDI research over the years, along with similar research by the Bar Council, indicates there are still challenges with progression at the Bar for underrepresented groups and with bullying, harassment and discrimination. So it is for these reasons that we are proposing tackling these issues through a wider and more positive core duty than the current Core Duty 8. A positive duty will especially support barristers, as members of chambers, in ensuring that their chambers’ policies and practices promote equality.
We understand the concerns that have been expressed about this proposed change but we do think that some of these concerns are based on misconceptions – we are certainly not proposing that this new duty should affect a barrister’s obligations under the duty not to discriminate (rC28) and the ‘cab-rank’ rule (rC29), for example. The cab-rank rule is a key principle in underpinning access to justice and our proposals would not affect this principle. Our proposals simply aim to promote fairness, equality and inclusion – we are not seeking to revolutionise the Bar or impose unrealistic expectations on the profession. We have sought to address some of the questions that have been raised in the Frequently Asked Questions which you can find on our website.
Proposing a positive approach to EDI is not unprecedented. The King’s Counsel Appointments (KCA) process assesses applicants for silk against Competency D which requires that an applicant ‘demonstrates an understanding of diversity and cultural issues, respects the needs and cultural wishes of others and is proactive in addressing the needs of people from all backgrounds and promoting diversity, inclusion and equality of opportunity.’ The KCA competency framework guidance includes taking ‘positive action to promote diversity, inclusion and equality of opportunity’ and acting ‘as a role model for others in handling diversity and cultural issues’. This aligns with the principle of our proposed positive core duty and also aligns with another legal regulator, the Solicitors Regulation Authority’s Principle 6 (their ‘principles’ being their equivalent to our ‘core duties’) that: ‘you act in a way that encourages equality, diversity and inclusion’. Similarly, the BSB’s Professional Statement (which details the knowledge, skills and attributes barristers need in order to practise) includes a requirement that barristers must ‘be aware and active in the pursuit of equality and respect for diversity, not tolerating unlawful discrimination, in themselves or others’.
From 26 October 2024, employers must take reasonable steps to prevent sexual harassment of their workers, including by third parties, following a change to the law made by the Worker Protection (Amendment of Equality Act 2010) Act. The Act introduces a new preventative and proactive legal duty on employers and is a clear example of the UK government also adopting a positive and proactive approach to EDI duties.
In our definitions of ‘equality’, ‘diversity’ and ‘inclusion’, we have outlined the principles of the equality of opportunities (note: we are not defining equality as meaning equality of outcome); ensuring the profession represents the community it serves in terms of demographics; and the Bar having an inclusive and respectful working environment for all. From our research into bullying and harassment, there are wider systemic and cultural issues that are affecting diverse groups and these need to be addressed. We know that the Bar Council shares our concerns in this area which is why they have commissioned the important independent review of bullying and harassment led by the Rt Hon Baroness Harman KC. Sharing the above definitions and introducing a positive core duty provides a principled steer to map out and align future actions to address EDI-related challenges.
We understand and appreciate the profession’s support and commitment to EDI to date and we are keen to ensure that the Bar tackles persistent barriers to further the advancement of EDI going forwards. But we also want to clarify some of the misconceptions we have had on the Equality Rules consultation: we are not supporting or mandating quotas and, equally, we’re not supporting or mandating positive discrimination.
As a regulator, it is important for us to assess how far we’ve come but it is also imperative for us to directly address challenges and barriers to progression that remain in place as part of our own regulatory duties set out by the Legal Services Board. The aim of the consultation is exactly that – to open the door to opinions from a wide range of stakeholders, listen attentively and ensure we address and reflect on the views presented.
The BSB Consultation on the Proposed Amendments to the Equality Rules is open until 5pm on Friday 29 November 2024. You can access the full consultation document here and respond here. The BSB has published an FAQ document on the consultation. You can read the Bar Council response to the consultation here.
We are very grateful for the large number of responses (over 100) to the Bar Standards Board (BSB) Equality Rules consultation we have received to date. We are here to listen and engage with the Bar and we will continue to engage with stakeholders until the end of the consultation period at 5pm on 29 November 2024.
Since the consultation launch, we have often been asked why the BSB has suggested a change to Core Duty 8 and is now proposing an amendment from ‘you must not discriminate unlawfully against any person’ to ‘you must act in a way that advances equality, diversity and inclusion’.
Our EDI research over the years, along with similar research by the Bar Council, indicates there are still challenges with progression at the Bar for underrepresented groups and with bullying, harassment and discrimination. So it is for these reasons that we are proposing tackling these issues through a wider and more positive core duty than the current Core Duty 8. A positive duty will especially support barristers, as members of chambers, in ensuring that their chambers’ policies and practices promote equality.
We understand the concerns that have been expressed about this proposed change but we do think that some of these concerns are based on misconceptions – we are certainly not proposing that this new duty should affect a barrister’s obligations under the duty not to discriminate (rC28) and the ‘cab-rank’ rule (rC29), for example. The cab-rank rule is a key principle in underpinning access to justice and our proposals would not affect this principle. Our proposals simply aim to promote fairness, equality and inclusion – we are not seeking to revolutionise the Bar or impose unrealistic expectations on the profession. We have sought to address some of the questions that have been raised in the Frequently Asked Questions which you can find on our website.
Proposing a positive approach to EDI is not unprecedented. The King’s Counsel Appointments (KCA) process assesses applicants for silk against Competency D which requires that an applicant ‘demonstrates an understanding of diversity and cultural issues, respects the needs and cultural wishes of others and is proactive in addressing the needs of people from all backgrounds and promoting diversity, inclusion and equality of opportunity.’ The KCA competency framework guidance includes taking ‘positive action to promote diversity, inclusion and equality of opportunity’ and acting ‘as a role model for others in handling diversity and cultural issues’. This aligns with the principle of our proposed positive core duty and also aligns with another legal regulator, the Solicitors Regulation Authority’s Principle 6 (their ‘principles’ being their equivalent to our ‘core duties’) that: ‘you act in a way that encourages equality, diversity and inclusion’. Similarly, the BSB’s Professional Statement (which details the knowledge, skills and attributes barristers need in order to practise) includes a requirement that barristers must ‘be aware and active in the pursuit of equality and respect for diversity, not tolerating unlawful discrimination, in themselves or others’.
From 26 October 2024, employers must take reasonable steps to prevent sexual harassment of their workers, including by third parties, following a change to the law made by the Worker Protection (Amendment of Equality Act 2010) Act. The Act introduces a new preventative and proactive legal duty on employers and is a clear example of the UK government also adopting a positive and proactive approach to EDI duties.
In our definitions of ‘equality’, ‘diversity’ and ‘inclusion’, we have outlined the principles of the equality of opportunities (note: we are not defining equality as meaning equality of outcome); ensuring the profession represents the community it serves in terms of demographics; and the Bar having an inclusive and respectful working environment for all. From our research into bullying and harassment, there are wider systemic and cultural issues that are affecting diverse groups and these need to be addressed. We know that the Bar Council shares our concerns in this area which is why they have commissioned the important independent review of bullying and harassment led by the Rt Hon Baroness Harman KC. Sharing the above definitions and introducing a positive core duty provides a principled steer to map out and align future actions to address EDI-related challenges.
We understand and appreciate the profession’s support and commitment to EDI to date and we are keen to ensure that the Bar tackles persistent barriers to further the advancement of EDI going forwards. But we also want to clarify some of the misconceptions we have had on the Equality Rules consultation: we are not supporting or mandating quotas and, equally, we’re not supporting or mandating positive discrimination.
As a regulator, it is important for us to assess how far we’ve come but it is also imperative for us to directly address challenges and barriers to progression that remain in place as part of our own regulatory duties set out by the Legal Services Board. The aim of the consultation is exactly that – to open the door to opinions from a wide range of stakeholders, listen attentively and ensure we address and reflect on the views presented.
The BSB Consultation on the Proposed Amendments to the Equality Rules is open until 5pm on Friday 29 November 2024. You can access the full consultation document here and respond here. The BSB has published an FAQ document on the consultation. You can read the Bar Council response to the consultation here.
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