Not an arc: a wheel

The BSB consultation on a 'new core duty' supports my hypothesis that the 'arc of history' does not 'bend towards equality' but rather power. And it is our obligation to resist.

The nice thing about being disabled and currently undergoing frequent blood tests to see how I can tolerate a chemotherapy drug, is that I have to take frequent days off work for my appointments. I get to enjoy a coffee and a trip to my local bookshop where I bought this book and can sit in a sunny garden and try to put my rage in order.

Of course, not working means I won’t earn anything and won’t be able to pay my mortgage or buy food to eat - but of course, in this Brave New World of inclusivity and equality I will be ok won’t I? Or will I find that if my needs are more than can be met by a lanyard and a flag will I be left to fend pretty much for myself or rely on the kindness of strangers?

This is of course a rhetorical question. I am fucked. My own fault of course for not saving more money when I was younger or persuading a rich man to marry me. The poor and the disabled know better than anyone else what the ‘arc of history’ is telling them.

So what has enraged me this time? Last night I was sent a link to a new consultation by the Bar Standards Board, my professional regulator. I enjoyed a two year tussle with them recently, when it took them six months to draft a charge sheet of my online publications which they wished to investigate as offending against Core Duty 5 - not to bring the profession into disrepute. They withdrew in the light of Jon Holbrook’s successful appeal against the breach of his article 10 ECHR rights and I - naively - assumed sanity had been restored.

I was wrong. The consultation is seeking views on a proposed new Core Duty

We propose to replace the current Core Duty 8 (You must not discriminate unlawfully against any person) with a new duty: You must act in a way that advances equality, diversity and inclusion, which expands on the current Core Duty not to discriminate unlawfully. This will apply to all barristers when practising or otherwise providing legal services. We also propose to amend outcome oC8 to reflect the new breadth of the duty. and to remove the current rule rC12 which states that “you must not discriminate unlawfully against, victimise or harass…” (as this restates what is already required by law and in any case the Equality Rules specify that barristers must not discriminate, harass, bully, or victimise.)

So a perfectly sensible and necessary duty, to not discriminate, harass, bully or victimise will be placed by a positive obligation to ‘act in a way’ that ‘advances equality, diversity and inclusion’. You will note that (of course) there is no attempt to identify what these terms mean or what happens when two protected characteristics clash. Who then takes priority? The most obvious example and close to my heart is the clash between those who think ‘gender identity’ should take priority at all times and those who think sex is the proper organising category in certain situations where the safety and dignity of women is at stake.

Both these views are lawful, both are worthy of respect in a democratic society but in certain situations - who competes in what sport? Who gets sent to what prison? Who gets to decide if lesbians can have a book club for women only? - one view must prevail. There will have to be a winner and a loser. Someone is going to be excluded.

Where the BSB went badly wrong pre Holbrook is that they appeared to have very little understanding of the importance of protecting political speech pursuant to article 10 ECHR, and hence diversity of thought and opinion. I struggle to see how this proposed new Core Duty is going to do anything other than take them down a path they have already trodden, and which led to expensive and embarrassing defeat in the courts. Why are we wasting our time in this way?

But it isn’t simply a waste of time and it isn’t good enough to say that this obvious nonsense won’t survive a court challenge. It is part of embedding into our very culture a contempt for the rule of law - or worse, a belief that we have a moral obligation to dismiss it, should dare stand in the way of what we believe subjectively to be ‘right’.

I was shocked to learn that solicitors are already subject to a version of this duty. And we can see from this blog its immediate and corrosive power. Professor Stephen Vaughan is very excited about this duty.

Imagine a client comes to a lawyer based in England & Wales and asks for their help with the permitting of new coal-fired powered plants in a country where such development is legal and encouraged. Given the lawyer knows, or should know, about how climate harms globally impact women and people of colour much worse than other groups (plus the inter-generational impacts on young people, and the impacts on those with a disability etc etc), are they encouraging equality, diversity, and inclusion when they give life to their client’s instructions? 

Read that again. Let it sink in. Professor Vaughan is saying that a lawyer’s ‘duty’ to promote equality etc is more important that his or her client’s rights before the law to enforce or claim a right that the law permits them to have. These are laws in the main created by a democratically elected Parliament who have consulted and refined the drafting, who have enacted the law as something important and necessary for society as a whole. But to Professor Vaughan, this is of little importance when set against a individual lawyer’s moral obligation to stress test any law against their own internal set of beliefs as to how well it meets the needs of young disabled people of colour.

Of course I don’t pretend that all laws are automatically necessary and good. I agree with have a positive obligation to challenge laws we consider to be harmful. But if we are practising lawyers we do this outside of the conference or the court room. We do not presume to act as judge, jury and executioner with regard to any law that offends our sensibilities with regard to ‘equality, diversity and exclusion’. We have a duty to act professionally within the confines of the law unless and until it is overturned.

Maybe Professor Vaughan is unaware of the barristers other Core Duties. I would however have hoped the BSB was vaguely aware of them. Core Duties 2 and 4 are particularly relevant. I must act independently and I must act in the best interests of my client. I had - possibly naively - always interpreted this to mean that I advanced my client’s case fearlessly and in accordance with the law and the facts before me.

Jolyon Maugham and some other Kings Counsel issued a declaration in March 2023 to say that they would not act for ‘oil companies’ and they would not prosecute those who were charged with offences against them. Of course Mr Maugham is not a criminal barrister so it might be suggested that this is simply more of his performative signalling to his tribe. I disagree. It shows fundamental contempt for the heart of what it means to be a barrister - you take the instructions given to you and you do your duty to your client and the court, provided you are paid properly of course. I said then and I say now, any barrister who commits to refusing to represent a particular person or category of people should be disbarred.

So what happens if this new Core Duty is imposed on me? Lets say I am acting for a father in a dispute over contact and he says something a bit racist or misogynistic. Or lets say I am acting for a mother - as I did only a few months ago - and she says she doesn’t want her child taking hormones to ‘transition’, she thinks it is harmful and abusive. What do I do? Do I stop representing these clients because I fear by so doing I am advancing a case that others may see as not promoting ‘equality, diversity and inclusion’. Do I report myself for a possible breach of the Core Duty? Will it depend on whether or not my client wins his or her case?

This isn’t just irrelevant raging on my part. I am reminded of the family case where a father who was a member of UKIP had restrictions placed on his contact with his children because of his political views which were likely to ‘harm’ them. On appeal this appalling judgment was rightly struck down. But if the new Core Duty comes into force, will the father find any barrister willing to represent him at all? Rotherham Council meanwhile allowed a decades long child sex trafficking ring to operate in its locality, but were quick to remove foster children from carers who were members of UKIP, so that’s all good.

My case where the mother objects to the provision of hormones to her child was rejected at first instance but will now proceed to the Court of Appeal who agreed she had a compelling argument. But if the mother wins, then her child may be denied the right to medically transition until she is an adult. Is pursuing this case an affront to a positive obligation to ‘include’ the child who wishes to medically transition? If transgender lobby groups claim this case is offensive to diversity, is that an argument to stop the case? Or allow barristers to refuse to act?

Who knows! Because it is nonsense. All of it. The law is about balancing competing rights. It is about putting the interests of your client ahead of your own personal belief or prejudice. It is about fearless protection of the rule of law. You do not discriminate and you do not harass but you damn well don’t set yourself up with more power than Parliament. If you do that, you cannot kid yourself you are part of any kind of functioning legal system - you are no better than a petty tyrant, and when the boot is on the other foot and it is your views that are deemed unacceptable by those in power, you will be the first to shriek and cry about it.

I don’t think the ‘arc of history’ exists. I now think we are on a perpetual wheel. What matters is power. We now have a group who have glossed over their power grab with sickly mantras about ‘being kind’, but there is nothing ‘kind’ about the world they want to create. They want power. And power corrupts.

I can’t put it better than Robert Bolt so I won’t try. Please if you are a barrister, respond to this consultation and stand up for the rule of law. If you are not a barrister, please take notice and understand how serious this is and what’s at stake.

“William Roper: “So, now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I'd cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”