Why I am still repulsed and enraged by 'EDI'

I have had the chance for further reflection on the proposed new Core Duty - and I still hate it. If it comes into force - will I be allowed to remain a barrister?

I responded immediately and viscerally to the BSB’s proposals on 3rd September 2024 to impose a new ‘Core Duty to ‘advance’ EDI. Which I think was reasonable, given what was proposed - emphasis added.

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.)

This raised two immediate discrete concerns for me that ‘when practising’ would include

a) the manifestation of my own gender critical beliefs that some deem ‘exclusionary’

b) representing clients who themselves manifested views that some deem ‘exclusionary’

But of course, underpinning it all is my visceral dislike and distrust of the very notion of ‘EDI’ which I explained here - that anyone who wants to rely on it offers their own subjective definition of what it all means, there is no reliable evidence that ‘EDI’ has any beneficial outcomes (in fact the opposite is often true) and it encourages empty performative signalling that leaves out in the cold those of us with very concrete disadvantages.

I wasn’t reassured by a LinkedIn post from ‘VinciWorks’ who were offering a webinar on 13th November which was headed ‘Prepare for the BSB’s new EDI requirements’ - which certainly had a whiff of a ‘done deal’ - and when asked what ‘EDI’ meant, told us to refer back to the BSB, thus confirming my suspicions set out above that ‘EDI’ means whatever you want it to mean.

I then attended an event organised by the Free Speech Union on Monday 4th November, which had contributions from Akua Reindorf KC, Ken Macdonald KC and Poornima Karunacadacharan from the BSB. I hope on the night I paid sufficient tribute to Ms Karunacadacharan’s bravery in facing down a universally hostile audience and interjections from two KCs but I am afraid I was not left with any better impression of the consultation.

The BSB did at least confirm that the duty wasn’t directed at ‘barristers’ private lives on social media’ or the cab rank rule so that is something. Why then the consultation was worded so clumsily, despite being a product of much thought and discussion, is another matter. I have set out below my attempt at live tweeting the discussions that night.

We were left with the fundamental problem that EDI is, in and of itself, considered by many to be a controversial political ideology. The KCs expressed consternation that barristers should be held to the higher duty of ‘advancing’ equality whereas public bodies only have to pay it ‘due regard’. The BSB simply denied these obligations were different. Akua Reindorf made the powerful point that adopting something controversial would inevitably mean that those who didn’t ‘believe in it’ would then be excluded, which is arguably discriminatory.

Ken Macdonald KC continued the debate in the illuminating podcast Double Jeopardy in conversation with Karon Monaghan KC who favoured the new duty ‘with some tweaks’ - but what those might be was not explained. It was an interesting discussion but not one that changed my mind. Monaghan was clear that she thought ‘equality’ and ‘diversity’ were uncontroversial ‘good things’ and how could we object to advancing them? She was less sure about ‘inclusivity’, rightly criticising it as ‘woolly’ but made no suggestions as to how that term could be divorced from its less controversial siblings.

But we circle back again to that fundamental problem. ‘EDI’ carries with it a hell of a lot of baggage and it exists in a context and culture where ‘disagreement’ on certain issues is seen as a direct violent threat to a person’s very existence. I am not confident that those who promote ‘EDI’ have any genuine commitment to diversity of thought about things they find offensive and particularly not when ‘offence’ now appears to be recast by many as unacceptable harm. Akua Reindorf offered on November 4th the examples of the gender critical debate and Israel/Palestine.

If I am to ‘advance’ equality, diversity and inclusion, who exactly is defining these terms? And if the focus is on ‘outcomes’ how are these to be measured if quotas are unlawful? What kind of disciplinary sanctions does the BSB intend for ‘failure’? All these questions remain unanswered.

Monaghan seemed to assume that article 10 ECHR would be used to mop up any over enthusiastic application of the EDI terms. That is not a remotely comforting thought. The ‘chilling effect’ of breaches of article 10 is well known; it takes a particular kind of individual to have the emotional and financial resilience to stand firm against a state agent’s breach of their fundamental human rights.

I laid down a gauntlet to the BSB at the event on November 4th. I find EDI repulsive and enraging. I won’t be ‘advancing’ it in any sphere. If the new Core Duty is enforced - can I still be a barrister?

We will see. The consultation is here and the deadline is 29th November. Anyone can respond. Please do.

Live tweets of the discussion on Monday 4 November

BSB rep begins by giving account of proposals and why we should support them. Consultation published at start of Sep, we are still consulting. We propose outcome focus - very different to current equality rules. Has been some improvements at the Bar re EDI but barriers persist re recruitment, retention, bullying and harassment.

BSB propose a 'positive action duty' to act in a way that 'advances' EDI and set out outcomes we want to see achieved. It's about taking reasonable steps to achieve outcomes. To create accountability and transparency and a framework to meet outcomes. Only applies to self employed Bar.

We understand the self employed Bar is unique and does not have the same governance structures as employed bar. Our framework will support the profession to meet outcomes - prevent harassment and bullying, ensure access to services and promote inclusive culture. We have action plans to identity disparities by analysing collected data.

Bryn Harris of @SpeechUnion asks BSB to say a little about the existing duties under the Equality Act to get a sense of why the BSB thinks they need to be supplemented?

BSB - important to clarify ...? Existing rules not to harass or victimise in EA. We have requirements to collect data on sex, disability and race. We have requirements currently which are quite similar to what we are proposing, but it starts from outcomes and asks what requirements need to be in place to create accountability and transparency (These words are in English but I afraid I do not understand what this means. What outcomes??)

Akhua Reindorf has considerable concerns which have yet to be allayed. Particular concern re new core duty; almost every word is contested and I don't know what they mean. What does EDI mean? The consultation document offers very woolly definitions - equality of opportunity for eg. Seems directed at recruitment/Chambers organisation not my practice. How do I create an inclusive culture when cross examining? . It sounds incredibly ideological and what is being aimed for is a particular version of EDI that does not have universal approval or consensus.

I fear that no account has been taken of conflicting rights. The Equality Act currently balances rights in a careful way. Our current duty is not to breach the EA which is perfectly adequate and welcomed. I do not understand the duty. Solicitors also under it but they do not have the cab rank rule. How does this intersect with the cab rank rule?

Ken MacDonald KC - quotes from consultation document. Existing duty must not unlawfully discriminate against any one. Entirely reasonable. BSB want to replace it with 'you must act in a way that ADVANCES EDI'. This has taken on particular ideological meaning, in the context of US racial politics.

This is highly contested, across the political spectrum. Consultation says barristers must see this as a duty in their professional role and BSB to take action against behaviour that works against EDI. But this is a contested ideology.

BSB want to achieve a culture change, core expectation that all barristers demonstrate commitment to EDI, to form basis of future regulatory action and to achieve culture change. Therefore BSB see this as a radical change across the profession. My central objection is that this is promotion of a contested political ideology which leads to disciplinary proceedings.

The focus on outcomes means that instead of 'equality' we have 'equity' . This is shift from concept of equality of opportunity to equality of outcome. To achieve equality of outcome you have to rely on some form of coercive process, such as quotas which are unlawful. To achieve equality of outcome is extraordinary. It is echo of shift in US ideology. No one can disagree with equality of opportunity but this is very controversial.

I personally am strongly opposed to enforced equality of outcome and would feel very uneasy if my regulator required me to show loyalty to this ideology. Its not simply going from a negative to a positive duty. The shift to promotion of EDI is an indicator of an undesirable road we are going down.

Bryn Harris - can BSB respond to some of AK and KM comments? There has been some robust pushback to these challenges. When BSB preparing proposals were you aware it would be as contentious of this?

BSB - we reflected, gave it thought and discussion. We did expect a certain amount of pushback but there is misunderstanding on what we are proposing. for e.g. the cab rank rule would not be impacted by these proposals. We are not saying a barrister should not represent a client who does not promote EDI (Good - clarity on this at least)

BSB - we mean this is mainly around practice management, doesn't extend to cross examination. (But this isn't what Mark Neale said to Joshua Rozenberg. He talked about this as the 'primary' purpose... so what is secondary and tertiary...)

BSB - we are not talking about equity, we are not expecting equality of outcome. It's not about positive discrimination and quotas. What we mean is set out in the equality rules, equality of opportunity in recruitment and retention.

AR but you say 'when practising or providing legal services' . This is extremely broad and likely to conflict with cab rank rule. You don't explain it.

BSB - we are not looking at barristers private life on social media. its about practice management.

AK - so why doesn't it just say that

BSB - interesting point and we will reflect on it.

(well, that's my second question answered BUT I was told that on social media I was still a barrister, and still capable of bringing the profession into disrepute)

KM - my concern that broadening this ideology has practical real world consequences. Issue of sex based rights for e.g. highly contested and those who promote women's rights are called transphobic bigots and can't be allowed to speak. One of problems of expanding this ideology into barristers daily lives is that people WILL rely on EDI ideology to attack others. I can see disputes arising on these ideological lines and they are entirely fatuous disputes that will take up time and money.

EXACTLY THIS WELL SAID SIR

KM - I will be complained about and enter a nightmarish hell of forms etc. I think that is a very dangerous road to go down.

AR - could the BSB comment on gender critical belief? Those who believe in gender identity think this is a threat to their identity and existence. So if someone is facing possibility of action for behaviour that goes against EDI, how are you going to manage those conflicts as agaisnt the protected characteristic of belief? Same thing could be said about Israel/Palestine issue where views are not merely contrary but seen by the other as a threat.

@SpeechUnion KM - David Pannick and I said Israel had the right to exist and got multiple complaints to the BSB saying we were promoting genocide!

BSB - these types of complaints are already being made and are carefully considered, looking at human rights and PSED. We don't expect this would increase the number of complaints coming through as under CD 5 these issues are brought (bringing profession into disrepute). We take risk based approach. The new duty clarifies the standards and expectations more. We dont believe it will increase number of reports. However we are very keen to hear if our proposals would have impact on those who have protected characteristics.

Bryn Harris - concern about vagueness of terms. Duty to promote. How far do you think a duty to promote goes. What degree of commitment is called for?

BSB - what we set out in the proposed rules. To collect and analyse data, look a protected characteristics, reflect and address disparities and set action plans

(SO THIS IS ABOUT ADMINISTRATION OF CHAMBERS - as AR says, why not just say so!!)

BSB - these are duties on individual barristers, not on Chambers as we don't regulate Chambers.

AR - the difficulty is that you are dealing with barristers. It doesn't take much imagination to see that if someone represents gender critical clients, there will be a complaint they are working against diversity and inclusion. With this kind of wording, its wide open. It doesn't say anywhere in duty or consultation that its limited to these kind of administrative practice management issues. The least you need to do is restrict it to practice management.

BSB - enforcement is last resort. We are looking to work with the profession. We would offer supervision to provide support for barristers to meet requirements. We would expect to see barristers taking a reflective approach. Some barristers will be more accountable than others depending on the roles they take in Chambers. But you can't just delegate to an EDI officer, it is an individual barristers obligation to consider delegation.

BH - you have these very broad duties, what are the safeguards that prevent the duties increasing to include the bread and butter of their legal practice? How do you ensure the duty only bites on what you want to capture?

BSB - we will take feedback that we need to clarify this relates to practice management. The safeguards are we consider if there is a need to take regulatory action. Is it proportionate.

AR - still interested in knowing the answer to my question about potential challenges to gender critical barristers. You say barristers will have to demonstrate appropriate commitment in their practice. WHY does it say that

BSB We will take this on board and clarify this

< This is astonishing. This would have been very easy to make clear at the outset. and doesn't fit with what Mark Neale said to JR>

AR - the PSED is a much lower duty 'to pay due regard' rather than 'promote' EDI or take 'reasonable steps'. So why is it set so high?

BSB - we weren't necessarily modelling around PSED. not sure its a higher duty than to pay regard. It requires thinking about what are the barriers and what positive action can be taken to address them.

KM - struck by point AR just made. To have due regard is clearly a lower duty than to act to advance something. It is completely wrong to put a higher burden on barristers in private practice than on the public sector.

BSB - continues to deny that the duties are different, despite now two KC's pointing out that they very obviously are.

KM - use of word 'advance' is very unfortunate as implies you have to be pushing it. You have to be an active propagandist and that's really problematic. I strongly disagree with it and object to being subject to disciplinary proceedings. A very unfortunate term.

AR and it is directly discriminatory against those who don't believe in EDI - that is arguably a protected belief.