Because it’s 2024 and many of us seem to have gone mad, I will have to start by stating the obvious. “Discrimination” is a word with no immediate negative or positive connotations. Whether it heralds something good or bad is determined by the intentions behind the word and the consequences that flow from those intentions. For example, discriminating against paedophiles, to refuse them entry into primary schools or the priesthood is generally perceived to be a Good Thing — discrimination for a lawful aim and necessary purpose. 

But the word “discrimination”, along with “equality”, “diversity” and “inclusion” — to make the acronym EDI — have come to be treated as magical incantations. Without further examination of meaning, intention or consequence, we are told “discrimination” is a Bad Thing and we definitely want more EDI. I have already written about my serious concerns that barristers may be subjected to a positive obligation to “advance” EDI in their legal practice.

This week brought another fascinating case involving barristers which I dare to hope may shine a very bright light indeed on how these necessary words have been pressed into the service of some ultimately dangerous aims. 

On 19th September 2024 HHJ Carroll rejected barrister Dr Charlotte Proudman’s application to strike out as an abuse of process, four disciplinary charges brought by the Bar Standards Board. Dr Proudman was in trouble for publications on the micro blogging site X (formerly Twitter) in April 2022 which made adverse comments about a decision by a Judge who decided against her client. She was concerned the Judge minimised domestic abuse and was part of an “Old Boys” network of privilege. She argued that by pursuing disciplinary proceedings against her but not male barristers who had behaved in a similar fashion, the BSB had breached her rights pursuant to the ECHR and/or breached the Equality Act 2010 as they had discriminated against for her sex and her feminist views and it would be an abuse of process to proceed. 

The technicalities of the various legal arguments need not detain us. HHJ Carroll found that a stay or strike out would be an “exceptional” course of action that could not be properly undertaken by a single Directions Judge at an interlocutory hearing and without proper consideration of findings of fact. He did not agree that the Equality Act applied but accepted that Dr Proudman could claim an article 6 and 14 ECHR breach against the BSB as a public body, regarding her right to a fair trial and the right not to be discriminated against. HHJ Carroll noted that “discrimination is properly regarded as deep and serious social ill” and there is “overwhelming public policy/public interest reasons to ensure that where discrimination is said to have contaminated decisions of public authorities… that the issue is litigated”.

For the BSB to lawfully conclude that Dr Proudman was in breach of the Code of Conduct, it would have to look beyond the specific charges against Dr Proudman and consider how the BSB treated complaints made against male barristers. 

This is where it begins to get interesting for those of us who have for a long time now been concerned about the direction of travel for “EDI”. The first point is that Dr Proudman appears to downplay or even deny the existence of sex as an organising category in society as she supports “self identification” of gender identity, i.e. that any man who claims to be a woman, is a woman. If the male barristers who she claims were treated better by the BSB because they were male, decided to identify as women, then presumably the argument of sex discrimination falls. They would all be women.  Because they say so. 

But what of the argument that she was discriminated against for her feminist belief? This belief appears to manifest itself via Dr Proudman’s genuinely held, if arguably irrational view, that the criminal and family justice systems operate as systemic misogynistic tools of oppression against women, domestic abuse being routinely minimised by guffawing Judges at the Garrick club. 

In my view, some of Dr Proudman’s arguments have force. Why did male barristers on social media who called serving Judges “unfathomably stupid” or “transphobe adjacent” escape censure? I also agree it ought to be a breach of the Code of Conduct for any barrister to call anyone a “c**t” online. 

However, Dr Proudman goes on to assert that because the BSB failed to take action against criticisms made against her by male barristers, that this is evidence of the BSB’s unacceptable “discrimination”. A large chunk of the posts deemed unacceptably abusive by Dr Proudman were made by male criminal barristers who were exasperated with her frequent public and inaccurate declarations about the criminal justice system, referring to her as “wrong” and “ignorant” and making “grossly misleading” statements.  A particularly poignant tweet from Mr James Vine states simply “THIS. IS. NOT. TRUE” in answer to one of her public assertions. Dr Proudman relies on this as evidence of abuse. 

That these comments went unpunished is not evidence of “discrimination” against Dr Proudman but evidence of article 10 ECHR in action, to protect freedom of speech. If Dr Proudman claims the right to make assertions about the criminal and family justice system which other practitioners believe to be wrong and misleading, then they also have a right to say so. 

The article 10 rights of anyone else gets not a mention in the very lengthy submissions on behalf of Dr Proudman. Her right to say whatever she wants, however inflammatory or misconceived, is assumed, and anyone who dares challenge her, even in the mildest of terms, will find themselves labelled “abusive” and a failure to censure them as “discrimination”. This is the ultimate expression of “discrimination” as incantation;  a magic wand that you can wave to silence any opinion that challenges or irks you. 

What matters is that we end this divisive and fetishistic elevation of “feelings” above all other considerations

The full hearing of this matter should be very interesting indeed. I had hoped that my profession would be playing its part in ending the irrational assault of “EDI” by coming to the aid of the rule of law, rather than playing enthusiastic ringmasters in its circus. 

But I will take what I can get. What matters is that we end this divisive and fetishistic elevation of “feelings” above all other considerations and stop believing in magic. If someone is wrong, we ought to be able to tell them with a fair degree of robustness, without risking our reputations or our livelihoods for some other’s reliance on a childish iteration of “it’s not fair!”