This article is taken from the October 2024 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

In September, the Bar Standards Board, which regulates barristers in England and Wales, quietly announced a consultation on amending the core duties it requires all barristers to perform.

Currently, Core Duty 8 only requires barristers to not “discriminate unlawfully against any person”, a redundant but perfectly sensible rule. The BSB seeks to replace it with a requirement for its regulatees to “act in a way that advances equality, diversity and inclusion”.

In addition, all chambers and solo practitioners will be required to promulgate an equality, diversity and inclusion policy and to meet mandatory EDI outcomes. Barristers who run foul of the new rule will face disciplinary action.

The predictable outcry aside, few seriously think the duty will not be amended. As anyone who has been involved in these things knows, a consultation is run so that the decision maker can say that a consultation has been run, nothing else.

Mark Neale, its director general, is committed to the EDI agenda. In July he publicly attacked the chairman of the Bar Council for suggesting that the BSB ought to stick to enforcing minimum standards of conduct instead of involving itself in the messy business of promoting diversity at the bar.

But the change may not matter as much as its critics think, since EDI is already embodied across the entire legal sector. In order to get the Lord Chancellor’s nod, aspiring silks must already prove they have an “in-depth understanding of equality, diversity and inclusion issues as well as evidence of actions you have taken to widen access and participation that have had tangible outcomes”.

If the cream of the legal profession must demonstrate what is lovingly referred to as “Competency D”, why shouldn’t junior barristers follow suit?

Similarly, solicitors are already under a duty to “act in a way that encourages equality, diversity and inclusion” (this is numbered SRA Principle 6; to “act in the best interests of each client” is Principle 7).

And there is of course the bench’s attitude toward EDI. The judiciary of England and Wales currently has 147 “diversity and community relations judges”, an “Equality and Diversity Policy for the Judiciary” jointly issued by the Lord Chief Justice and the Senior President of Tribunals, and a novel-size “Equal Treatment Bench Book” which, as barrister Thomas Chacko noted in a scathing 2021 report for Policy Exchange, made all sorts of highly ideological yet dubious claims about minority groups, all in the name of cultural sensitivity.

As regular readers of this magazine will know, none of this is confined to the legal sectors. According to a study commissioned by the last government (disclaimer: I was one of the consultees), there are at least 10,000 EDI jobs in the public sector alone, costing more than half a billion pounds a year.

Given all of this, the fact that the English bar lacks an EDI duty must seem positively backward to the SRA’s executives, who are after all merely seeking to enshrine into regulations a value which virtually every British institution, legal or not, purports to promote as a core part of their mission (the Legal Services Act 2007 already requires the BSB to promote a “diverse … legal profession”).

The BSB’s credo is that refusal to acknowledge race is racism in itself. It also speaks of “micro-inequalities”

There is of course the possibility that the BSB will enforce the proposed EDI duty sensibly. Anyone who has perused its website, however, will be disabused of this idea.

As evidence of pervasive and systematic racism within its ranks, the BSB cites a finding that “80 per cent [of ‘BSB people from minority ethnic backgrounds’] did not feel that their ethnic background was recognised and valued by colleagues and managers”, following the circular EDI credo that refusal to acknowledge race is racist in itself. It speaks not only of “micro-aggressions” but of “micro-inequalities”. It is also developing “inclusive language guidance” and introducing compulsory race relations training for staff.

And there is its dubious record on enforcement. When the barrister Jon Holbrook made a series of admittedly controversial tweets touching on hot button diversity issues, the BSB accused him of bringing the profession into disrepute, insisted on hearing the case in private, tried to keep the appeal in camera, and imposed a fine which was later overturned.

It is currently engaged in disciplinary action against the progressive provocatrice Charlotte Proudman over a series of intemperate tweets about diversity at the bar, proceedings which have been embroiled in accusations of, ironically enough, inequal enforcement.

One does not need to agree with either’s views to wonder whether the BSB is really well placed to enforce the expansive duty it has proposed.

The BSB consultation runs until 5pm on 29 November. Responses can be submitted here. You know what to do.