Guidance for Chambers on Responding to Potentially Discriminatory Instructions

The Bar Council has received advice from Leading Counsel confirming that it is unlawful to use gender as a basis for selection of counsel. The situation in which the problem often arises is where solicitors make a request to barristers’ clerks for a female barrister to prosecute a rape case, or to advise/ represent female clients in immigration and asylum work where there are allegations of sexual abuse. Under the Sex Discrimination Act 1975 it is unlawful:

a) for a solicitor to give instructions to a female barrister on the grounds of her gender, when the effect of doing so is to treat a comparable male barrister less favourably;

b) or a female barrister to accept instructions, knowing that she is being instructed for reasons related to her gender and where a comparable male barrister is treated less favourably in consequence; and

c) for a barrister’s clerk or head of chambers/those responsible for the administration of chambers to permit a practice which enables female barristers to gain exposure or undertake a class of work which is denied to male colleagues.

It would be equally unlawful in relation to any of the above for the instructions to be given to a male barrister to the detriment of a female colleague.

Such requests by solicitors would be in breach of their professional obligations under the Solicitors Anti-Discrimination Rules 2004. Members of the Bar would be in breach of the Bar Code of Conduct, which prohibits discrimination. The new Equality and Diversity Code for the Bar provides, at paragraphs 1.36 to 1.47, for non-discriminatory allocation of work within chambers. Paragraph 1.47, repeating similar earlier guidance, provides “any solicitor who insists on a directly discriminatory allocation of work should be reported to his or her professional body. The work should be refused”.

Such requests are often justified by the claim that it is what the client/complainant wants. It may be, however, that a solicitor making such a request does not really have instructions to discriminate, nor does the solicitor wish to discriminate. It may be that the solicitor has a client who is very worried and anxious about the hearing and tends to burst into tears if not handled sensitively. It may be that the solicitor has chosen to ask for a female counsel when what they really want is a sensitive counsel. A sensitive counsel may be male or female. Similarly a solicitor may request a male barrister when what they really think they want is an aggressive cross-examiner. They may be under the complete misapprehension that that requires a man. Once the real problem is identified then a proper basis of selection may emerge and the matter can be dealt with amicably and fairly. Chambers who have adopted a positive approach to dealing with these issues have found that rather than creating problems for themselves they have been able to improve their working relations with solicitors and provide a better service to clients. The stages of dealing with this problem are, as they normally are:

(a) Ask why,

(b) Identify the problem,

(c) Share the problem (another person in the clerks room or in chambers may well be able to help to diffuse the position and identify the real problem),

(d) Keep a proper note,

(e) Be polite but firm, clear and fair.