The Bar’s regulator, the Bar Standards Board (BSB), is proposing to impose a professional obligation on barristers to “advance equality, diversity and inclusion” (EDI) with a view to securing “demographic change in the profession”.

In 2021 a BSB “think-piece” written by its board member Leslie Thomas KC foreshadowed this proposal. He argued that a lack of action on the Bar’s demography will add “truth and weight to the view, held by many, that the profession is “White, stale and male”, antiquated, exclusionary, isolating, and a place where prejudices not only exist but, in my view thrive”.

These are strong words and suggest that the Bar, a profession of about 18,000 practising and mostly self-employed barristers, is dominated by elderly white men who spend their days lamenting the demise of Victorian values. Fortunately, the BSB’s own facts don’t support Thomas’s characterisation.

For a start, there was 16.9 per cent of black and minority ethnic (BME) barristers at the Bar was in December 2023. Comparisons with the “norm” are tricky but in much of its data the BSB treats the working age population of England and Wales as an appropriate norm. On this basis BME barristers are slightly over-represented at the bar, since BME individuals comprise only 16.7 per cent of the norm. Also, when it comes to the direction of travel the BSB notes that the per centage of BME barristers has increased by 0.5 per cent each year since its first Diversity at the Bar Report in 2015. As for BME pupils (trainee barristers) — who indicate what the future Bar may look like — they comprise a disproportionately high 24.9 per cent.

Women also fare well in the profession despite Thomas’s view that it’s a place where prejudices thrive. In December 2023 they comprised 41 per cent of the Bar, so less than the norm of 50 per cent. But why, and does it matter? BSB data for 2023 shows that women are over-represented as pupils (60 per cent) but that their per centage falls with seniority. This is hardly surprising since women who remain in practice are nearly twice as likely as men (41 vs 23 per cent) to have primary caring responsibility for children. So, this disparity, far from being a product of prejudice, is a consequence of decisions made by free-thinking men and women about how to arrange their family and professional lives.

The BSB is highly selective about which groups need to be truly and proportionately represented

Norms regarding sexuality may be unreliable since when asked this question nearly 42 per cent of barristers declined to say, no doubt because, as with much of the BSB’s monitoring, they consider it none of the BSB’s business. Nevertheless, on the basis of those the BSB does know about, it concludes that the LGBTQ community is 12.6 per cent of pupils, 7.2 per cent of junior barristers and 5.3 per cent of senior barristers (Kings counsel, KC). This the BSB says “compares to an estimate of 4.0 per cent of the UK population aged 16 and over”. So the Bar seems to have a disproportionately high number of those who are LGBTQ. One can only marvel at their persistence in the face of a profession that Thomas described as “antiquated, exclusionary and isolating”.

The BSB’s rationale for seeking demographic change in the profession is that it “must ensure” — words that highlight its campaigning zeal — “that the profession is truly representative of those it serves”. But how “truly representative”? The Bar serves a disproportionately high number of criminals, divorcees and illegal migrants. Yet the BSB is presumably not going to gird its loins to increase representation of these groups at the expense of the law-abiding and happily married who didn’t arrive on small boats.

The BSB is highly selective about which groups need to be truly and proportionately represented and which don’t. Why, for example, is it ok for pupils to be comprised of disproportionately high numbers of women (60 per cent) and BME (25 per cent)? Or, for the profession as a whole to have a disproportionately high per centage of those who are LGBTQ (8.3 per cent)? The BSB obsesses over such groups when data shows them to be under-represented, but is silent when they are over-represented — even though this necessarily means that others are under-represented.

In order to secure the “true representation” that the BSB “must ensure”, it proposes to oblige barristers to have an action plan “that is specific and measurable to address any disparities identified through analysing the data”. By “any disparities” the BSB means disparities that it disapproves of. In other words industrious and successful white, straight men, (especially those who were privately educated) can expect to feel the BSB’s heat.

This experiment in social engineering has been practised by the BSB for several years when recruiting its own staff (who have mushroomed from 75 to 110 in the last four years). The outcome is unsurprising. Data for the end of 2023, shows that the BSB’s workforce was 74 per cent female and 13 per cent LGBTQ (4 per cent being the norm). Its data on ethnic and religious heritage was even more disproportionate: BME were 41 per cent (17 per cent the norm); Asian heritage 20 per cent (7 per cent the norm); black 12 per cent (4 per cent the norm); Muslim 13 per cent (6.9 per cent the norm); and Hindu 10 per cent (1.8 per cent the norm). As if to head off criticism the BSB notes that “the working population of London is likely to be quite different to that of the UK as a whole”. Maybe, but it’s not that different. Moreover, one can anticipate that the chambers specialising in international shipping law won’t, when faced with a BSB investigation, get away with special pleading based on the demography of barristers who choose that line of work.

These disparate outcomes in BSB employment speak to the fraud that lies behind the BSB’s talk of equality and diversity. When it talks of “equality” it means “inequality” and when it says “diversity” this is code for “less white, male, straight and privately educated”. Accordingly, there is no BSB action plan to address its disparities in favour of its preferred groups, who, in order of preference at its offices are: Hindu (over-represented by a factor of 5.6), LGBTQ (3.3), black (3.0), Asian (2.9), BME overall (2.4), Muslim (1.9) and women (1.5). Instead of an action plan the BSB responds to these disparities by claiming “we are proud of our ethnic diversity” — and year on year the disparities widen

In 2021 I was expelled by barristers at my chambers after expressing my conservative beliefs

Of the triplet, EDI, the notion of inclusion is particularly duplicitous. The one characteristic that the Bar actually does lack is a diversity of political opinion. And this really does matter since without it the Bar will lose public respect, a problem already apparent with the vernacular of “lefty lawyers”. Yet political belief is the one legally protected characteristic that the BSB does not measure (despite even measuring what people do in the privacy of their bedroom). But a Bar Council survey in 2023 discovered that 39 per cent of barristers were Guardian readers, at a time when less than 1 per cent of the UK adult population were buying a Guardian. On the other hand the survey found that only 10 per cent of barristers read the Telegraph or Mail, two dailies with a circulation nearly ten times greater than the Guardian. On this basis the ratio of barrister readers of the left-wing Guardian to the right-wing Telegraph and Mail is about 40 times higher than for the public as a whole. Despite the evidence of political bias within the profession the BSB on this metric demonstrates no campaigning zeal to ensure that the Bar is “truly representative of those it serves”.

Furthermore, actual cases of barristers unlawfully discriminating on grounds of race, sex and sexuality do not seem to exist and if they did they would be newsworthy and reported in the employment tribunal’s comprehensive database. There is, however, a case of barristers unlawfully discriminating on grounds of political belief. In 2022 Allison Bailey won her employment tribunal claim against Garden Court Chambers which had unlawfully discriminated against her in standing up for sex-based rights against the politics of transgenderism. (And note in passing that Leslie Thomas was her head of chambers at the time.)

My own circumstances also speak to the Bar’s intolerance of socially conservative beliefs. In 2021 I was expelled by barristers at my chambers after expressing my conservative beliefs on Twitter — an outcome the BSB then effectively excused by investigating 18 of my tweets and fining me for one. I was exonerated by an independent tribunal which had to spell out the BSB’s lack of respect for my human right to engage in political speech. This saga is now the subject of several belief discrimination claims against the BSB, amongst others. Had Bailey or I been victims of unlawful discrimination on grounds of race, sex or sexuality then the BSB would have thrown its regulatory muscle at the perpetrators, but, when it comes to the protected characteristic of political belief, a shrug of the shoulders.

The BSB’s campaigning fervour to bring about demographic change at the Bar has already met with a critical response from many of its practitioners, such as Andreas Gledhill KC, shadow Attorney General Lord Wolfson of Tredegar, Akua Reindorf KC, Lord Ken Macdonald KC and Sarah Phillimore. Maybe the BSB will dismiss them all as being prejudiced. After all, in his think-piece for the BSB, Leslie Thomas began by quoting critical race theorist Ibrahim X Kendi: “the heartbeat of racism itself has always been denial”. On the other hand, the Bar is supposed to be a place where fearless free-thinking advocates for truth and justice can thrive. For the good of the profession and the public that it serves, we can only hope that they prevail over the woke BSB bureaucracy.

Jon Holbrook is a barrister. His detailed response to the BSB’s proposals, from which this article is drawn, is here.