Go to any formal bar dinner, and over the Inn port you will probably hear a great deal about the fiercely professional independence of the English Bar. You will hear how barristers practise as sole traders, liberated from the kind of top-heavy corporatism imposed on employed lawyers. They pay for their own office space in chambers and, provided they satisfy the requirements of professional regulation, sink or swim strictly on merit, free of any kind of political pressure.

If only. Unfortunately, for some years the Bar’s regulatory body, the Bar Standards Board, has been moving away from limiting itself to the kind of minimal controls necessary to preserve scrupulous honesty, competence and a minimal degree of decorum. Instead, it has been engaging in ever more micromanagement of barristers’ lives. (Only last year, for example, it seriously suggested making it a disciplinary offence for barristers to be members of men-only clubs like the Garrick.) Its latest wheeze is absolutely in line. In a proposal now out for consultation, it wants to require every English barrister, under the rubric of equality, to practise and promote what seems to be fairly blatant social engineering, and discipline those who do not.

Currently, barristers are prohibited — quite understandably — from discriminating unlawfully when acting as lawyers. But this is not remotely good enough for the BSB. Under its proposed new, and deliberately far more demanding, rule they would be bound to “act in a way that advances equality, diversity and inclusion” and to show a “commitment” to these values. In addition they would have to take positive steps to “promote an inclusive culture,” and their chambers would be subject to extensive duties to report on matters like membership and allocation of work broken down by race, sex, disability and social class. Breach of any of these duties would be subject to professional sanctions. Furthermore, the BSB, tellingly saying it is “focused on the outcomes we want to achieve,” intends not only to enforce a requirement of non-discrimination, but to insist on results in terms of advantages to groups they see as under-privileged, such as women, racial minorities and those who went to state schools.

To some, these proposals doubtless represent sweet reasonableness. These people are wrong. The proposals need to be resisted hard by those who value the idea of an independent and effective Bar, and more importantly by anyone who believes in individual freedom of thought.

For one thing, although the BSB pays lip service to the independence of the Bar, its proposals actually go in the absolute opposite direction. They involve the state-sponsored shoehorning of the English bar into a mold that satisfies the requirements of one political belief system, and a highly contentious one at that. 

A truly independent Bar would be open to chambers that took a different view

The BSB regard it as axiomatic, for example, that the Bar should be “reflective of the population it serves” in terms of race, sex, etc; that the proportion of privately-educated barristers in commercial law needs to drop; that the way the Bar works needs to be more accommodating to the neurodiverse, and so on. But there is nothing self-evident or beyond argument about the idea that the Bar should reflect in percentage terms the make-up of society in terms of race, sex or social class, or any of their other assumptions. On the contrary: what we have here is a demand that the legal profession be forced to accept and promote a highly partisan view of social justice that happens to appeal to the members of the BSB. 

A truly independent Bar would be open to chambers that took a different view on such matters. 

Indeed, some might say that it should even be open to chambers, and members, that took the even more radical — and actually rather plausible — position that whatever the opinion of individual barristers, the BSB should leave social justice to the politicians, and had no business requiring the profession to do anything beyond what was strictly necessary to assure that its users received a competent and efficient service.

Secondly, while we can obviously expect lawyers to obey the general law on equality, it’s not very clear why it is the function of any professional regulator to expect them to go beyond that and to observe a much more extensive regime that the rest of us can ignore. Requiring barristers, as a condition of being allowed to practise, to “demonstrate an appropriate commitment, through their practice, to equality, diversity and inclusion” with a view to achieving “culture change” (the BSB’s words) looks much more like an attempt to limit access to a profession to those who share the political outlook of the regulator.

Even worse than this, however, is the way these requirements blatantly circumscribe lawyers’ freedom of opinion and expression. Imagine a thinking barrister who does not believe the interests of the Bar are served by extending the reach of EDI, and who, while happy to treat everyone on merit, sees no need to have regard to where they went to school or to increase the representation of state school pupils or others with social disadvantages. Although these beliefs are both lawful, and actually rather common (except apparently in the legal establishment), an explicit professional duty to advance diversity and inclusion would prevent him urging them on chambers or promoting them at work. However good a lawyer he might be, a person holding them would be forced either to dissimulate or to risk losing his livelihood.

For that matter, the BSB seems to regard this as quite unexceptionable. Its own words again: “It is important that every barrister sees this as a duty that applies to them in their professional role, and that the BSB is able to take action against behaviour which works against equality, diversity and inclusion.” Nothing could be clearer or more chilling: if you are a lawyer contemplating an expression of wrongthink, you have been warned. Think again.

There is one piece of good news. This is so far only a consultation. Barristers, readers of The Critic, and others who wish the legal profession well have until 29 November to respond. The overbearing leaders of the Bar need to hear that these illiberal and dictatorial changes are outrageous, and that it matters vitally to have an independent, and not a politically subservient, legal profession.