The Bar Standards Board (“the BSB”) has initiated a consultation on proposed changes to the Code of Conduct, the professional rules which apply to all barristers, including non-practising ones. There are a range of proposed alterations; perhaps the most significant is, “to ensure that all barristers have a duty to promote equality, diversity and inclusion when practising or otherwise
providing legal services.”
Legal Feminist is intending to submit a reply to the consultation. We had some questions, which I am now publishing. The BSB replied by inserting comments into our questions document. The original LF text is in plain text, and responses by the BSB in italics:
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Dear BSB
Consultation on the Proposed Amendments to the Equality Rules
We refer to your public consultation on new rules to promote equality, diversity and inclusion at the Bar, launched on 3 September 2024.Thank you for your invitation to submit questions on this consultation in advance of the deadline.
We would like to request the following information.
- Were any individuals and/or groups consulted in formulating these proposals? We would be grateful if you would identify any individuals and/or groups consulted who are not either employed by the BSB or members of the BSB Board, and provide copies of any input received from those individuals/groups.
The Bar Standards Board engages with a wide range of stakeholders on a continuing basis in taking forward our responsibility to promote diversity. Specifically, we also engaged with the BSB Taskforces during the development and drafting of the proposed Equality Rules.
- Did the BSB commission any third-party or internal research, working papers, reports etc before formulating these proposals? If so, please tell us from whom any such research/working papers/reports etc were commissioned and provide copies.
All research carried out by the BSB in relation to equality, diversity and inclusion are listed in response to question 3a. below.
- In the 5 years to 31 August 2024: (a) What if any research or investigation (including spot checks) has been done by the BSB to ascertain the levels of compliance with Core Duty 8 in its current form? (b) How often was non-compliance found?
Research carried out by the BSB
All research carried out can be found in this link:
The following reports are of particular relevance:
BSB Pupillage Recruitment Report
Pupillage Quantitative Research Report
Pupillage Research Summary
Income at the Bar by Gender and Ethnicity
Trends in Demographics and Retention at the Bar 1990 – 2020
Bullying, Discrimination, and Harassment at the Bar Report
Regulatory Return
In 2020 the Supervision team issued the Regulatory Return to a selection of around 350 chambers, BSB entities and sole practitioners. A specific question in relation to Core Duty 8 was not included, but questions were asked to understand what chambers were doing to meet the requirements under the current Equality Rules, in relation to:
- the inclusive working culture of chambers;
- bullying, harassment, discrimination and victimisation;
- diversity data;
- flexible working; and
- allocation of work.
The Supervision team provided assessment letters to all those chambers selected, which set out specific actions (including those in relation to the current Equality Rules), where the required standard had not been met and further action was needed. For example, this included setting an action to ensure there was an anti-harassment policy, or making a recommendation for a fair allocation of work policy. The team worked closely to ensure that the actions were completed, until the chambers, BSB entities and sole practitioners could be assessed as low risk. Some of those selected required substantial guidance and input.
Our research (links above) shows that discrimination, bullying, and harassment persist within the Bar.
In the last 5 years 6 reports have been referred to the Supervision team specifically relating to concerns about discrimination. In addition, 5 reports were received in relation to bullying and harassment, as well as reports concerning other areas of the Equality Rules such as fair allocation of work and reasonable adjustments. There are also occasions where the team has initially received a report on an issue unrelated to the Equality Rules, only to discover that action is also needed in this area. For example, the team may receive a report relating to pupillage, but on exploring the matter further, there may be concerns about lack of reasonable adjustments for the pupil, the culture of chambers or victimisation.
For the most serious of cases, and in accordance with its Supervision strategy, Supervision Visits are carried out by the Supervision team and a report is then issued detailing the action needed. The team works with the chambers, BSB entities, sole practitioners or Authorised Education and Training Organisations to ensure that they have met their regulatory obligations, including those set out in the Equality Rules, and that all the actions have been completed, before re-assessing them as low risk.
- How many, if any, disciplinary findings against barristers for non-compliance with Core Duty 8 have there been in the same period?
There have been no disciplinary findings against barristers for non-compliance with Core Duty 8. The main reason is the use of the word “unlawfully” within the Core Duty, which limits any action we can take under CD8 to conduct that falls within the definition of discrimination in the Equality Act. This creates a relatively high bar for successful action. In contrast, under CD5 we have greater flexibility to address behaviour that is discriminatory in nature, without having to prove it amounts to unlawful discrimination. In the period specified, we have received 144 reports relating to discriminatory behaviour, of which 20 were allocated to Enforcement. Of these reports that were accepted for investigation, none had a breach of Core Duty 8 proved at Disciplinary Tribunal. The BSB received 98 reports relating to bullying & harassment, of which 22 were allocated to Enforcement; and 60 cases relating to Sexual Harassment, of which 21 were allocated to Enforcement.
- What, if any, Impact Assessments have been conducted in relation to the proposed changes in duties? We would be grateful if, in addition to identifying any Impact Assessments conducted, you would share these with us.
We are considering the equality impact of our rules on those who share protected characteristics. For example, we have proposed the removal of the mandatory requirement to have an EDO as we have evidence that the burden of this role disproportionately falls on the shoulders of those who share protected characteristics and often those at the junior end of the Bar. We held a roundtable discussion on the 5th of November with EDOs and DDOs to ascertain if there would be any adverse impacts as a result of removing this mandatory requirement. Through our consultation process we are very keen further to understand the equality impact of our proposals. This includes where they may have a positive impact, as well as where they may have an adverse impact. We are exploring this through our various engagement events, and we are very keen to hear from stakeholders on this point through the responses to our consultation.
As the EIA is currently in progress and the consultation process is a means for obtaining evidence on the equality impact, we are currently not able to share this document with you. However, we are keen to hear from Legal Feminist where you consider there to be either positive or adverse equality impact in relation to our proposed rules, and what if any mitigating actions we may take.
- What, if any, work has the BSB commissioned or carried out to assess costs of compliance with the new duties, both for individual barristers and Chambers? Please share the product of this work.
Proportionality has been a key consideration in the drafting of the new rules. As our proposed rules only require the profession to ‘take reasonable steps’, what is reasonable will be assessed on a case by case-by-case basis where cost to chambers will be a relevant consideration. We will take on board any feedback received through this consultation process in relation to cost.
- What, if any, work has the BSB commissioned or carried out to assess the cost to Chambers of its proposed 5-year plan to require all Chambers to be accessible throughout (in particular as regards those chambers whose premises are located in the Inns of Court) including the costs of any necessary planning applications, listed buildings consent surveys and applications, project-management and building works, and the costs of the proposed accessibility reports to the relevant set(s) of chambers? Again, we would be grateful if you would please share the product of this work.
Promoting access can be achieved through a wide range of interventions not all involving significant cost. It will be for chambers to consider the most cost-effective solutions in their own circumstances. Where there are chambers found to be not accessible after the 5-year period, it will be assessed on a case-by-case basis and fall on the facts to ascertain whether reasons for not doing so are justified. Cost of planning applications, listed buildings consent surveys and applications, project management and building works, potential moving costs, will all be factors that will be considered in deciding whether restrictions on accessibility can be reasonably justified.
In terms of accessibility audits and accessibility plans, these do not need to be externally commissioned. What is proposed is to demonstrate that access needs have been considered and reasonable steps have been taken to make one’s practice accessible. We will make extensive guidance and support available to the profession.
We have been attempting to analyse the BSB’s budgets over time. We have found this information challenging due to differences in presentation across each BSB budget proposal 2024/5 – £17,698,000 total, £9,792,000 staff costs and £7,033,000 non-staff costs.
No, the Business Plan lists total costs of £17,805k of which £8,477k are BSB direct staff costs and £3,412k are BSB direct non-staff costs and £5,916k is our contribution to shared services (so that £5,916k is a combination of staff and non-staff costs).
BSB budget 2023/4 – £14,700,000 £9.3 million direct plus £5,400,000 common services.
Not precisely, Business Plan lists total costs of £14,732k of which £7,114k are BSB direct staff costs and £2,224k are BSB direct non-staff costs (so total BSB direct costs of £9,338k) and £5,394k is our contribution to shared services.
BSB budget 2019/20 – Total £9,029,000. Direct budget is £5,614,000 of which staff costs £4,403,000 and non-staff costs £1,211,000. General resources £3,414,000.
£9,028k to be precise and otherwise correct.
BSB budget 2017/18 – Total £8,271,000. Direct budget is £5,211,000. Staff costs £4,344,086. Other costs £866,914.
BSB direct budget is correct. The 2017-18 Business Plan doesn’t specify the precise costs for our contribution to shared services. The 2017-18 Business Plan only specified BSB direct costs.
BSB budget 2014/15 – Total £8,635,000 – direct budget is £5,287,000 and common budget £3,347,000.
Correct
- (i) Please confirm if our understanding as regards the budget for the years listed above is correct.
Please see above.
(ii) How much is spent at present by the BSB on data collection and EDI regulation by the BSB, and how much is proposed to be spent should the BSB’s proposed changes be implemented?
We do not allocate budgets in that way.
(iii) Are there any estimates of the costs to the BSB itself of increased regulation, data collection, and if so, will they be disclosed prior to the end date for responses to the consultation
We will look at how this is resourced as part of future planning cycles, once the outcome of the consultation is clear, the rules have changed, guidance has been produced and there has been a bedding-in period. However, this is likely to be a priority area of Supervision and enforcement, and it will be managed from within the current team, using our current approach to conducting thematic reviews.
Mindful of the likely number of responses to your consultation, we have limited our questions to those matters which we believe you ought to be able to answer in a reasonable period and without difficulty.
In order to give us (and others) the opportunity to consider your responses before the consultation deadline of 29 November, please could you:
- Respond within 14 days (ie by 18th October) acknowledging our request and agreeing to provide the information we ask for to the best of your ability to do so (or, if you feel you should withhold any of it, explaining why); and
- Provide your substantive responses within a further 21 days (i.e. 8th November 2024).If any of this information proves difficult to locate or compile, we would appreciate as full a response as you are able to provide.
We intend to publish this letter on the Legal Feminist blog, and will be happy also to publish any response and accompanying material if you are willing to consent to this.
We look forward to hearing from you.