Tag: law

BSB Consultation on Equality Rules – Legal Feminist Questions

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.”

https://www.barstandardsboard.org.uk/static/8245b4b1-4593-4fc2-8524971ef73abf2e/equalityrulesconsultationfinal.pdf

Legal Feminist is intending to submit a reply to the consultation. We had some questions, which I am now publishing:

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.

  1. 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.                                             
  2. 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.
  3. In the 5 years to 31 August 2024: 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? How often was non-compliance found?
  4. How many, if any, disciplinary findings against barristers for non-compliance with Core Duty 8 have there been in the same period?                                                                    
  5. 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.
  6. 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.
  7. 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.
  8. 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 year’s business plan, but it appears to us that the following summary is correct.

BSB budget proposal 2024/5 – £17,698,000 total, £9,792,000 staff costs and £7,033,000 non-staff costs.

BSB budget 2023/4 – £14,700,000 £9.3 million direct plus £5,400,000 common 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.

BSB budget 2017/18 – Total £8,271,000. Direct budget is £5,211,000. Staff costs £4,344,086. Other costs £866,914.

BSB budget 2014/15 – Total £8,635,000 – direct budget is £5,287,000 and common budget £3,347,000.

(i)        Please confirm if our understanding as regards the budget for the years listed above is correct.

(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?

(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

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:

  1. 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
  2. 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.

Yours faithfully

Is this really necessary, Minister?

Guest Blog by Cyclefree, a lawyer/investigator specialising in financial services and whistleblowing investigations.

Politicians are always inclined to fall for the “If all you have is a hammer, everything looks like a nail” fallacy. The almost instant reaction to any problem in the public eye or if you want to look serious about an issue or to show that you really really care is to propose a new law. 

In recent days, Labour have proposed a law making spiking a criminal offence, even though there are existing laws which could be used. They plan to ban “conversion therapy”, though it is wholly unclear what this term means. The Tories are trying to pass a law against small boats in the Channel. The Bill of Rights (introduced under Raab, dropped by Truss, reintroduced by Raab again) is back on Alex Chalk’s desk. 

This last Bill is a classic example of a solution in search of a problem. It has been presented as a necessary reform. In reality, there have – since 2010 – been 4 reviews, all of which found no “compelling evidence of a problem” or “viable proposals for reform”. The Bill has been eviscerated by the joint Parliamentary Human Rights Committee’s report – here. Even a previous Tory Justice Minister (Robert Buckland) said the proposed Bill was pointless and a solution to a problem which no longer existed, if it ever did.

This last comment goes to the heart of why so many proposed new laws so often achieve little – and can do great harm.

When should a new law be introduced? And why? 

Those wanting a change should show:-

  1. The mischief they seek to address or the improvement that is needed. “What is the problem to which this is the solution? Be  precise in your answer” should be the first two questions asked of any politician proposing a new law. Too often they are never asked. Or, if asked, the answer is no more than “Something must be done. This is something. Therefore we must do this.”
  1. What are the real causes of that problem? If the causes are not legal ones, a legal solution is not going to be the answer. What will it improve and how? Too often, a new law is doing for the sake of doing. Or more often appearing to be doing.
  1. Can this issue be addressed by existing laws or other measures? We have enough of the bloody things on the statute book, after all.
  1. Is the problem sufficiently serious to warrant change? Partly this is a matter of priorities. But some problems are ones which cannot easily be solved or at all, are inherent in the tensions between conflicting interests. A bit of realism to counter the “There should be a law against it.” tendency in voters and politicians is needed.
  1. Will legal change resolve or alleviate the problem? Will it create other problems instead?
  1. Is what is proposed a proportionate way of resolving the problem. Not all problems can be resolved or only at an unacceptable cost.
  1. What are the consequences, especially the unintended ones? Do they harm the interests of others? If so, how badly? Can these be easily mitigated? If not, is it really worth going ahead or are there other measures which might work better?
  1. Is this consistent with other legislation or initiatives the government is enacting? This may be unduly hopeful but some attempt at consistency and joined up thinking would be welcome.
  1. Finally – and critically – how is this going to be implemented / enforced? If there are no or few resources to back up the new intentions, what – really – is the point? 

Is a pointless / ineffective law harmful?

Does it matter? Yes. Pointless law-making – the passing of Potemkin laws –  creates or reinforces cynicism about politics and a disregard for the rule of law, especially when it is seen as ineffective. Above all, it diverts attention and effort away from practical and effective problem-solving measures.

The desire to be seen to be doing something often seems to be the only important consideration. Consultation is put forward as a justification. But too often consultation starts from the assumption that something must be done and avoids a clear-sighted analysis of what the problem actually is and whether anything should be done. Or, more cynically, a cover for unclear / unpopular proposals (“We are going to consult on these proposals” = “We know they aren’t popular but we’re going to implement them anyway.”)

It’s as if what matters most is not effectiveness but the appearance of busyness. Ironically, this simply creates more work for lawyers and judges to try to sort out the mess thus created, more material for politicians to grumble about, more cynicism among voters, more proposals – and on it goes. It’s law-making as Escher might draw it.