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 okay, 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 it recently, when it took it six months to draft a charge sheet of my online publications which it wished to investigate as offending against Core Duty 5 – not to bring the profession into disrepute. It withdrew in the light of Jon Holbrook’s successful appeal against the breach of his article 10 ECHR rights and I – naïvely – 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 it 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 it down a path it has 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 it 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 and 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 him or her to have. These are laws in the main created by a democratically elected Parliament which has consulted and refined the drafting, which has 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 his or her 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 we 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 inclusion”. 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 naïvely – 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 King’s 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 was 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 which has glossed over its power grab with sickly mantras about ‘being kind’, but there is nothing ‘kind’ about the world these people 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!”
First published on Sarah’s Substack page. Subscribe here.
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The Bar Standards Board claims that lawyers “…must act in a way that advances equality, diversity and inclusion”.
This sounds like bureaucrat-speak designed to hide a power-grab in the language of the madleft’s exquisite “moral superiority”. The facts are, of course, that “equality” doesn’t and cannot exist; “diversity” in practice means the imposition of conformity; “inclusion” means “excluding people and opinions we don’t like”.
And it’s an interesting coincidence that the great leftwing tyrants of the 20th century – Lenin, Mussolini, Stalin, Hitler, Mao – always justified themselves by reference to “equality”.
“…must act in a way that advances equality, diversity and inclusion”.
So thats’s Executive, Legislative, Judicial – all three branches of Government in union.
So much for separation of powers.
The Bar Standards Board in my experience [and consequent opinion] is as bent as a nine pound note.
AFAIK it protects the good ole boys. If you aren’t one then you have a potential problem.
And those good ole boys become judges.
Nice trick.
IMHO if it was not for the BSB there would have been no Post Office convictions scandal.
Hundreds were convicted – and not a single judge or barrister blew the whistle.
How did Lucy Letby get convicted if it were not for barristers and judges from the English Bar.
Let us not forget the ridiculous wrist slaps given to dangerous criminals whilst the supposed independent judiciary did exactly what Starmfuhrer’s government told them to do and gaol people for tweets and facebook comments for disproportionately long terms.
Surprising none of them were sent to Rwanda.
I am waiting for these cases to be heard, probably after 5 years on remand. It seems to me that those pleading guilty were treated unfairly before the law, and why they pleaded guilty after legal advice is completely beyond me unless there was duress all round. When these cases appear in the Crown Court (as they should) I suspect that Juries will find it difficult to convict of the alleged crimes, which sound like simple public order offences in most cases. If they get handed excessive sentences, serious examination of the Courts is needed because any response to the Governments edicts is failure of the separation of powers in our constitution. This failure has been happening for years, it probably started with Blair and the CPS.
And it’s an interesting coincidence that the great leftwing tyrants of the 20th century – Lenin, Mussolini, Stalin, Hitler, Mao – always justified themselves by reference to “equality”.
[Jeff Chambers, 2024]
It would me madness to base the value of people on their race, in other words, to declare war on the Marxist standpoint: All human beings are equal, without being prepared to carry this through to its ultimate consequences. The ultimate consequence of recognizing the importance of blood, of a race-based foundation in general, is judging individuals according to it. If different nations are to be valued differently based on their races, the same principle must apply to different members of a single nation. The notion that peoples aren’t equal to each other extends to individual members of them roughly in the sense that each of them has is own head¹.
[Adolf Hitler, 1927]
This guy doesn’t seem to have heard about your grand unifying theory. Maybe teach him about the error of his ways?
¹ Mein Kampf, vol 2, p 491. Hitler is real bitch to translate. The awkwarfd style is my fault. The German original reads quite well in German, as a German lecture.
It is very clear RW. Equality across everything is too difficult, and obviously foolish to attempt. We cannot all be PM, have identical opportunity, or equal abilities. Just human differences. The race card has become all powerful and has moved to race, ethnicity, colour, sex (all 70 types) etc. In other words if you are not the average human (doesn’t exist!) you must have special treatment. Surely this extract was Hitler trying to rationalise his treatment of foreigners and Jews?
So radical left wing ideologues are trying to capture yet another institution.
And there I was thinking that “the tide is turning”.
Obviously not.
Unfortunately, what we have begun to see and will continue to see, is that the principle that politics should be kept out of the court room is increasingly abandoned, not due to barristers being leftists, but because they are insufficiently intelligent to understand core legal concepts.
This is a result of a decline in intelligence and also an increase in mental illness that has progressed for many decades.
Of course, I’m sure many barristers still understand what the precepts of a fair legal system need to be, but it matters hugely whether those are 60% or 40% of the profession.
Same everywhere.
Also, I’m sure the type of people that like working in governing bodies are all very similar in nature and predisposed to nannying.
Thank you for reminding me of the “Man For All Seasons Quote”.
One would have hoped it was engraved on 2TK’s and any other person involved with the law heart!
Control language, especially that of the judiciary, and you control everything.
Well they don’t do jurisprudence and more, so I suppose they need something new to keep them entertained.
Equality Diversity Inclusion Tyranny
DEI. Didn’t earn it.
Well, here’s a news item about “equality” for women, for example:
Cold water swimming needs to be made safer for women, study finds (msn.com)
One commenter said,
“Totally agree, should be made safe for women, send them in first to check it is ok for us men.”
It’s not lawyers per se just the bar council which represents barristers not solicitors . Barristers are a small if vociferous minority in this he legal profession. As a solicitor I would not instruct any member of the bar who embraced this nonsense. Like the BMA the governing body had been captured by Marxists who have no real work to do .
As far as I can see DEI is an excuse (or whatever powers it is given) for discrimination on the grounds of race, creed or colour, all be it positive, in other words, anti white (white not being a colour, (art teacher: Black and white are tones not colours!) although I am generally slightly brown pinkish colour, largely beyond description. Of course it may be argued that I am wrong in all the above, that DEI included people need these extra rights (or whatever) because they are actually fundamentally different in intelligence or something else which cannot be discerned. I do however notice from the way that ghettos are developing in many of our towns and cities, that this DEI is very much a one way action, it is that I must do something which it is not necessary for other groups to do. As the above discriminations are all illegal, the Bar seems to be becoming positively dim, stupid, or perhaps permanently deluded, drugged or drunk. I would quite like to know which of these things is actually the problem, then I may avoid the said members at all costs. Are they really trying to include actions which are against the law in our legal system, or have they completely lost any notion of law? Of course it was the “protected characteristic” nonsense which started the whole thing in the first place.
This just goes to show that no system is exempt from growth.
The Law may have been made to do all sorts of sensible things, but you cannot stop it from growing, like my toe nails. It is the same with the progressive movement. It progresses.