The Chair of the Bar Council thinks that the regulator should stay out of the way on equality and diversity. These are matters, he says, that are best left to the profession itself, while the Bar Standards Board sticks to its operational knitting.
So, should we stay out of the way?
My answer is a firm “no”. It’s worth explaining why.
Perhaps most important, the Bar Standards Board could not get out of the way even if we wanted to. In exercising the regulatory functions delegated to us, we must promote the Regulatory Objectives set out in the Legal Services Act 2007. Those objectives leave us no wriggle room.
We must protect and promote the public interest: there is a clear public interest in a profession which reflects the society it serves.
We must promote, through our regulation, a strong, diverse, independent legal profession: that speaks for itself
We must improve access to justice and promote the interest of consumers: the diversity of the profession is a condition for both.
These legal obligations mean that the regulator and the profession will necessarily both take a close interest in the diversity of the Bar. There is no avoiding that duplication at least.
Duplication of interest does not necessarily lead to duplication of activity. For the Bar Standards Board, as regulator, to move from interest to action, two other conditions must be fulfilled.
First, there must be challenges or obstacles to diversity and inclusion at the Bar that need to be addressed.
And, second, the regulator and regulation must be capable of influencing those challenges and helping to overcome those obstacles.
Are those conditions fulfilled? I think they are.
Let’s take the challenges first.
The Bar has certainly made progress on diversity in recent years. At least at junior levels it is now a good reflection of the society it serves. I have no doubt about the commitment of the Bar Council to making further progress. Witness the important report on Race at the Bar published in late 2022 and their recent very welcome establishment of the review of bullying and harassment at the Bar which will be chaired by the Rt Hon Harriet Harman KC.
Challenges do, however, remain.
Students from minoritised backgrounds are half as likely to be successful with pupillage applications as equivalently qualified White counterparts. Research we published earlier this year tells us that many chambers are still putting disproportionate weight on candidates’ polish. We know from other recent research that certain regional accents will also put you at a disadvantage.
Career progression is also unequal. Women barristers and barristers from minoritised backgrounds earn less than their White male counterparts even when controlling for seniority, specialism and geography. For women barristers, this income disparity opens up very early in their careers at the Bar.
Unsurprisingly given these fee inequalities, women and barristers from minoritised backgrounds continue to be under-represented at KC level.
Many chambers remain inaccessible to disabled people and so, in effect, off-limits to disabled students applying for pupillage.
Pupils and barristers continue to report high levels of bullying and harassment.
So, yes, action is needed to tackle these continuing obstacles to diversity and inclusion.
Second question then: does regulation have a useful role to play or is this all down to the profession?
I would certainly agree that the profession itself must be part of the solution – indeed, a large part of the solution. These continuing inequalities and challenges to inclusion have cultural roots.
Nevertheless, regulation can certainly help.
It can help by influencing the culture itself. Change will only come about if the profession buys into it. But to buy into change, the profession must confront and debate the challenges and identify solutions. That is why we shall shortly consult on a new core duty on all barristers actively to promote equality. Avoidance of discrimination is important, but not enough.
Regulation can also help by ensuring, through our Equality Rules, that there are clear minimum expectations of chambers which will permit a critical examination of the long-standing practices.
Expectations to gather the data needed to monitor the distribution of work and so to challenge inequalities in the opportunities to progress.
Expectations to have in place policies which promote inclusion, including to address bullying and harassment.
Expectations to audit the accessibility of premises and to adopt policies to improve access where it is currently deficient.
Expectations to train barristers involved in pupillage recruitment so that potential, not polish, determines success.
We shall be seeking views on these minimum expectations in our forthcoming consultation on the revision of the Equality Rules.
Finally, regulation can help by signalling clearly where the boundaries of acceptable conduct lie and by providing a robust deterrent to unacceptable behaviour. This is nowhere more important than in the case of bullying and harassment. We look forward to working with Harriet Harman on her review.
In short, the regulator and the profession must work together it we are to achieve the diverse and inclusive profession which is our joint aim. The regulator staying out of the way is not the answer.
