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.
What an excellent read Sarah. Bone chilling to have confirmed the attempts to capture the legal system. I made a similar argument when all of my psychotherapy /counsellor colleagues had gone full pitchfork and were calling for the obnoxious comedian Chubby Brown to be banned as a local council was trying to do. They treated me like I was a moron for defending his right to perform there. I told them I thought it was authoritarian and once they'd so blithely gone down that road they couldn't complain if a different council with opposite views shut them or people they approve of down next time around. I asked them who they thought should 'decide' these matters and not one person answered me. I'm not popular in those circles anymore -badgeof honour .
I hope your health and treatment can be the best it can be. Love and respect to you. X
The imposition of a ridiculously vague positive duty to promote equality would be bad enough, but the fact that it is proposed to *replace* the duty not to unlawfully discriminate is deeply troubling. Allison Bailey's case makes it abundantly clear that some barristers see their EDI 'duties' operating as a kind of a general defence to discrimination and harassment. Codifying this misunderstanding in the code of practice is unlikely to end well for anyone.
I am immeasurably delighted that I have recently retired from practice at the Bar. That time they tried to make us have empathy should have been a big warning to us all.
"At the root of the DIE religion is the unflappable and irrational belief that societies must exhibit equality of outcomes on every possible human endeavor. When this cancerous objective is not met, it is presumed that the sole possible explanation is institutionalized bigotry. Of course, people with functioning brains recognize that most complex phenomena are multifactorial in their causes. In other words, a disparity in outcomes is likely caused by a large number of factors of which institutionalized bigotry might be absent from such a list. For the readers interested in the pernicious effects of the DIE religion and its attack on the meritocratic ethos, please read The Parasitic Mind: How Infectious Ideas Are Killing Common Sense.
I could produce another 13 trillion cases that point to the poisonous idiocy of the DIE religion, but I trust that my point is fully made. Identity politics poisons everything it touches. The only path to a truly just and enlightened society is via the ethos of individual dignity. Life is competition and competition is life. If and when there are obstacles to an equality of opportunities, let us eradicate these. But let us never confuse institutionalized barriers to the assortment of competitive outcomes."
Thanks for reminding us of those great lines of Bolt’s hero in A Man For All Seasons. The only consolation is that most good practicing lawyers - I expect the same in other professions - don’t have the time to read most of the stuff that their professional regulators churn out, especially when it doesn’t really impact on the day to day grind of doing a job for one’s clients.
There is 'The Law' and there is 'Justice'. They have been on divergent paths for a long time & are now completely different things. 'The Law' (and its hangers-on) is just another item in which I have lost all respect and faith in over the past 4-5 years. Your excellent piece confirms my view.
With regard to your own health sitch, many commiserations. You might find the following to be an interesting intersection:
As a retired lawyer who practiced in America, I am appalled by the shameless authoritarian impulses behind this interference with attorneys' freedom of conscience, association and expression. It also interferes with the attorney-client relationship in a way that could deprive people and organizations associated with unpopular causes or accused of wrongthink of legal representation.
Frankly, one could argue that there's an element of involuntary servitude in the requirement that a lawyer "advance" equality, diversity and inclusion. At the least it is a coercive hijacking of a lawyer's skills, experience, knowledge and labor toward ends with which he or she might not agree.
Sure, no professional licenses are granted unconditionally; a member of the bar is required to abide by rules of professional reponsibility and court rules as a condition of being permitted to practice law. The new rules (are they final or just proposed?) are untenable because they aren't concerned with ensuring orderly and ethical conduct by members of the profession in their dealings with one another, clients, judges and other members of the profession. Instead, they aim to use lawyers to achieve a particular social outcome.
I would be up in arms were I subjected to these rules.
I can’t reconcile this part though: “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. “
Are you really saying a lawyer should not be allowed to choose their clients? If a lawyer does not want to represent oil companies they should be disbarred?
Yes. This is a fundamental ethics foundation of our profession: the cab rank rule. If you can’t obey it, you can’t be a barrister. Not a difficult concept I thought.
In America, lawyers have great latitude when it comes to choosing clients. A lawyer may generally refuse to represent someone for any reason or no reason provided he or she is not violating an anti-discrimination law.
As a former actuary, you may be interested in my view of its progression at the IFoA (formerly Institute of Actuaries), as well as the “duty (of) going further” than EA10. While Actuarial Council approved it, in a 2023 consultation only 179 members out of 16,000 (around the same number of practicing barristers) responded – about 1.1% - of which opinion was divided. The response of the IFoA’s head of regulation was revealing:
“It is my firm belief that the IFoA is critically placed to lead the actuarial profession in its support of Diversity, Equity and Inclusion, and I am grateful to all who, through their contribution to this consultation, enabled the Actuaries’ Code to be shaped in a way that is truly reflective of the IFoA’s aims and expectations.”
Astute counsel will note that no-one ever actually defines the expression – they define each of the three words, but we can all do that – we all have GCSE English..
In other words, DEI has never been reified. As such, it is a weak regulator’s dream. If it is undefined, no-one can ever defend themselves against a charge of not committing to it.
Also, no definition has never appeared in “BAILII”, or the public records of employment tribunals (“ET”s) – although the individual words appear in their usual senses. The latter refer to it obiter (eg, “XYZ has a Diversity Equity and inclusion policy”), and suggest individuals have “Diversity and Inclusion training” (whatever that is).
The Chair of the IFoA Disciplinary Committee is also “co-Chair of the EDI Forum for the Association of Chief Executives”. As such, it is surprising that she could not provide a definition – if, of course, she has ever been asked:
In case this issue is one of my own ignorance, I wrote to the largest 40 solicitor firms, all of which trumpet their support of EDI (or a truncated or reordered variant), asking for their definitions. None of them has yet replied.
However, the important point is my study of the recruitment and promotion practices of various firms – including the largest in their field – as part of their “going further”.
This came about after my review of ET decisions – in particular Mr M Furlong v Chief Constable of Cheshire Police, (sift process), and the RAF/Sir Mike Wigston affair, which I understand was settled prior to a tribunal:
Also the discovery of recruitment results (eg, 40% + of a year’s recruits being BAME, despite only 13% of the UK population being BAME), seeming intuitively far too high to be the result of a merit based sift.
My review resulted in deriving a four-part test:
1) Following EA10 as illustrated in the Furlong decision above
2) Is the assumption that the proportion of BAME (or any other PC defined group) candidates succeeding in a fair sift process which is based overwhelmingly (ie, other than “tie break” instances) on merit for the role will be the same as for the applicant population, taken to be representative of the UK population as a whole unless credibly demonstrated to be otherwise.
(ie, you would expect a 13% success rate among both BAME and White candidates)
3) If a sort process can be shown to be more inappropriately biased than a random process (which itself would be unlawful), than that sort process is also unlawful.
4) The mathematics for 3) – this is not at an arcane actuarial level, but could be handled by a competent “A”. level student – being “perms and combs” as it if generally known. I am in discussion with some secondary school heads of maths on this topic.
This test shows the almost unbelievably low probability of a “>40%” result. However, it also works the other way – a result of 0% BAME could hardly be justified.
The test seems to indicate a narrow success band, suggesting that a variation of within +/- 5% of the average looks acceptable, while above +/- 5% suspicious – however, +/- 10% would definitely suggest further investigation.
Interestingly, the same percentages seem to apply, irrespective of the size of the PC proportion. For female recruits, I assume a population average of 50.5%, but the bands are similar. That suggests results of <40% or >60% (say) merit further investigation.
For the technically minded, results seem to be broadly between a leptokurtic and a mesokurtic distribution – see the cover of my planned book, illustrated by Mr James Parsons, attached.
I am currently working on statistics helpfully published by “Legal Cheek” regarding juniors’ race and sex. I will be happy to provide results to anyone who contacts me on peter@windsorac.com.
If you can leap straight to the ‘overthrowing’ then be my guest. We need to organise resistance first. The end goal of all resistance movements is to overthrow - or at least implement significant change.
What an excellent read Sarah. Bone chilling to have confirmed the attempts to capture the legal system. I made a similar argument when all of my psychotherapy /counsellor colleagues had gone full pitchfork and were calling for the obnoxious comedian Chubby Brown to be banned as a local council was trying to do. They treated me like I was a moron for defending his right to perform there. I told them I thought it was authoritarian and once they'd so blithely gone down that road they couldn't complain if a different council with opposite views shut them or people they approve of down next time around. I asked them who they thought should 'decide' these matters and not one person answered me. I'm not popular in those circles anymore -badgeof honour .
I hope your health and treatment can be the best it can be. Love and respect to you. X
Sounds like someone is trying to stack the deck against women again. I wonder who?
The imposition of a ridiculously vague positive duty to promote equality would be bad enough, but the fact that it is proposed to *replace* the duty not to unlawfully discriminate is deeply troubling. Allison Bailey's case makes it abundantly clear that some barristers see their EDI 'duties' operating as a kind of a general defence to discrimination and harassment. Codifying this misunderstanding in the code of practice is unlikely to end well for anyone.
Great piece, Sarah
Disgusted at the proposals of the BSC!!
Have cross posted
https://dustymasterson.substack.com/p/sleeping-dogs
Dusty
I am immeasurably delighted that I have recently retired from practice at the Bar. That time they tried to make us have empathy should have been a big warning to us all.
"At the root of the DIE religion is the unflappable and irrational belief that societies must exhibit equality of outcomes on every possible human endeavor. When this cancerous objective is not met, it is presumed that the sole possible explanation is institutionalized bigotry. Of course, people with functioning brains recognize that most complex phenomena are multifactorial in their causes. In other words, a disparity in outcomes is likely caused by a large number of factors of which institutionalized bigotry might be absent from such a list. For the readers interested in the pernicious effects of the DIE religion and its attack on the meritocratic ethos, please read The Parasitic Mind: How Infectious Ideas Are Killing Common Sense.
I could produce another 13 trillion cases that point to the poisonous idiocy of the DIE religion, but I trust that my point is fully made. Identity politics poisons everything it touches. The only path to a truly just and enlightened society is via the ethos of individual dignity. Life is competition and competition is life. If and when there are obstacles to an equality of opportunities, let us eradicate these. But let us never confuse institutionalized barriers to the assortment of competitive outcomes."
Extracts from "Diversity, Inclusion, and Equity (DIE) and the Death of Meritocracy" by Dr. Gad Saad: https://www.gadsaad.com/post/diversity-inclusion-and-equity-die-and-the-death-of-meritocracy
Sorry you’re having a hard time, Sarah. One of the many reasons a remain anonymous on social media is to ensure I don’t fall foul of the SRA.
Thanks for reminding us of those great lines of Bolt’s hero in A Man For All Seasons. The only consolation is that most good practicing lawyers - I expect the same in other professions - don’t have the time to read most of the stuff that their professional regulators churn out, especially when it doesn’t really impact on the day to day grind of doing a job for one’s clients.
My worry is this will be weaponised by some very unpleasant people
There is 'The Law' and there is 'Justice'. They have been on divergent paths for a long time & are now completely different things. 'The Law' (and its hangers-on) is just another item in which I have lost all respect and faith in over the past 4-5 years. Your excellent piece confirms my view.
With regard to your own health sitch, many commiserations. You might find the following to be an interesting intersection:
https://www.ukcolumn.org/article/gcmaf-and-persecution-david-noakes-lyn-thyer-immuno-biotech
https://www.linkedin.com/pulse/victory-health-freedom-national-federation-chairman-craciun-iii
Best wishes . . .
DD
Of course, the organised minority will get its way over the disorganised majority.
As a retired lawyer who practiced in America, I am appalled by the shameless authoritarian impulses behind this interference with attorneys' freedom of conscience, association and expression. It also interferes with the attorney-client relationship in a way that could deprive people and organizations associated with unpopular causes or accused of wrongthink of legal representation.
Frankly, one could argue that there's an element of involuntary servitude in the requirement that a lawyer "advance" equality, diversity and inclusion. At the least it is a coercive hijacking of a lawyer's skills, experience, knowledge and labor toward ends with which he or she might not agree.
Sure, no professional licenses are granted unconditionally; a member of the bar is required to abide by rules of professional reponsibility and court rules as a condition of being permitted to practice law. The new rules (are they final or just proposed?) are untenable because they aren't concerned with ensuring orderly and ethical conduct by members of the profession in their dealings with one another, clients, judges and other members of the profession. Instead, they aim to use lawyers to achieve a particular social outcome.
I would be up in arms were I subjected to these rules.
This is very disturbing.
I can’t reconcile this part though: “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. “
Are you really saying a lawyer should not be allowed to choose their clients? If a lawyer does not want to represent oil companies they should be disbarred?
Yes. This is a fundamental ethics foundation of our profession: the cab rank rule. If you can’t obey it, you can’t be a barrister. Not a difficult concept I thought.
In America, lawyers have great latitude when it comes to choosing clients. A lawyer may generally refuse to represent someone for any reason or no reason provided he or she is not violating an anti-discrimination law.
And I think that is terrible.
An ex actuary writes:
Equality, Diversity and Inclusion (EDI)
I note that the BSB is pressuring barristers into accepting the above.
https://www.lawgazette.co.uk/news/bar-regulator-to-impose-new-diversity-and-inclusion-duty/5120738.article#commentsJump
As a former actuary, you may be interested in my view of its progression at the IFoA (formerly Institute of Actuaries), as well as the “duty (of) going further” than EA10. While Actuarial Council approved it, in a 2023 consultation only 179 members out of 16,000 (around the same number of practicing barristers) responded – about 1.1% - of which opinion was divided. The response of the IFoA’s head of regulation was revealing:
“It is my firm belief that the IFoA is critically placed to lead the actuarial profession in its support of Diversity, Equity and Inclusion, and I am grateful to all who, through their contribution to this consultation, enabled the Actuaries’ Code to be shaped in a way that is truly reflective of the IFoA’s aims and expectations.”
https://ifoa-prod.azurewebsites.net/media/prenoh5w/summary-of-consultation-responses-proposals-for-regulatory-requirements-on-dei.pdf
No-one has yet explained the difference between the IFoA and the actuarial profession.
https://ifoa-prod.azurewebsites.net/media/mewj3wpg/dei-connsultation-report.pdf
The proposals were “served up again” in 2024:
https://ifoa-prod.azurewebsites.net/standards/regulatory-communications-and-consultations/current-consultations/proposals-for-publication-of-guidance-on-dei/
Astute counsel will note that no-one ever actually defines the expression – they define each of the three words, but we can all do that – we all have GCSE English..
In other words, DEI has never been reified. As such, it is a weak regulator’s dream. If it is undefined, no-one can ever defend themselves against a charge of not committing to it.
Also, no definition has never appeared in “BAILII”, or the public records of employment tribunals (“ET”s) – although the individual words appear in their usual senses. The latter refer to it obiter (eg, “XYZ has a Diversity Equity and inclusion policy”), and suggest individuals have “Diversity and Inclusion training” (whatever that is).
The Chair of the IFoA Disciplinary Committee is also “co-Chair of the EDI Forum for the Association of Chief Executives”. As such, it is surprising that she could not provide a definition – if, of course, she has ever been asked:
https://uk-ace.org.uk/wp-content/uploads/2023/02/ACE-newsletter-February-2023.pdf
In case this issue is one of my own ignorance, I wrote to the largest 40 solicitor firms, all of which trumpet their support of EDI (or a truncated or reordered variant), asking for their definitions. None of them has yet replied.
However, the important point is my study of the recruitment and promotion practices of various firms – including the largest in their field – as part of their “going further”.
This came about after my review of ET decisions – in particular Mr M Furlong v Chief Constable of Cheshire Police, (sift process), and the RAF/Sir Mike Wigston affair, which I understand was settled prior to a tribunal:
https://www.bbc.co.uk/news/uk-66060490
Non employment counsel may also find https://www.gov.uk/employment-tribunal-decisions/mr-a-ghosh-v-judicial-appointments-commission-and-others-2203773-slash-2022 informative for the amount of evidence that needs to be disclosed.
Also the discovery of recruitment results (eg, 40% + of a year’s recruits being BAME, despite only 13% of the UK population being BAME), seeming intuitively far too high to be the result of a merit based sift.
My review resulted in deriving a four-part test:
1) Following EA10 as illustrated in the Furlong decision above
2) Is the assumption that the proportion of BAME (or any other PC defined group) candidates succeeding in a fair sift process which is based overwhelmingly (ie, other than “tie break” instances) on merit for the role will be the same as for the applicant population, taken to be representative of the UK population as a whole unless credibly demonstrated to be otherwise.
(ie, you would expect a 13% success rate among both BAME and White candidates)
3) If a sort process can be shown to be more inappropriately biased than a random process (which itself would be unlawful), than that sort process is also unlawful.
4) The mathematics for 3) – this is not at an arcane actuarial level, but could be handled by a competent “A”. level student – being “perms and combs” as it if generally known. I am in discussion with some secondary school heads of maths on this topic.
This test shows the almost unbelievably low probability of a “>40%” result. However, it also works the other way – a result of 0% BAME could hardly be justified.
The test seems to indicate a narrow success band, suggesting that a variation of within +/- 5% of the average looks acceptable, while above +/- 5% suspicious – however, +/- 10% would definitely suggest further investigation.
Interestingly, the same percentages seem to apply, irrespective of the size of the PC proportion. For female recruits, I assume a population average of 50.5%, but the bands are similar. That suggests results of <40% or >60% (say) merit further investigation.
For the technically minded, results seem to be broadly between a leptokurtic and a mesokurtic distribution – see the cover of my planned book, illustrated by Mr James Parsons, attached.
I am currently working on statistics helpfully published by “Legal Cheek” regarding juniors’ race and sex. I will be happy to provide results to anyone who contacts me on peter@windsorac.com.
https://www.legalcheek.com/the-chambers-most-list/
Kind regards,
Peter Crowley BSc MEWI (FIA up to April 2024)
Resistance is for suckers. Overthrow or submit.
And how do you think we get to the ‘overthrowing’? Any steps on the way perhaps?
Ok, it would be a fair point, if the goal is realized up front.
Most importantly- The Western Left has no place to go.
Nor you.
It’s binary.
Resistance? Well that took the Irish 700 years, and even then England wanted out and needed America more than the Irish headache.
If you can leap straight to the ‘overthrowing’ then be my guest. We need to organise resistance first. The end goal of all resistance movements is to overthrow - or at least implement significant change.
Don’t worry Sarah, your “day will come” as my people 😂☘️ say.
I am afraid I don’t understand your comments . They seem vaguely threatening but could just be confused.
Not at all threatening.
Nor confusing.
Lol 😂
That reminds me of…
The Civil Rights Movement!
In Northern Ireland.
🤣
Well it worked out eventually.
And yes 🤣 LOLOLOLZ… hi ☘️
☘️🇺🇸 👋🏻 HI 👋🏻
You want to be literally eaten (“She’s in the Kebab”) by your own creations? Ok.
I don’t hate you or think you deserve this fate, but you apparently don’t care enough
🤣🤣🤣😂 so have fun.
Cheers lol 😂