I was called to the Bar in 1994, the same year in which I first got involved in Bar-related equality, diversity, and inclusion (EDI) initiatives. I was a very junior member of the Bar Council’s Equality Code Implementation Committee which was responsible for adding sexual orientation to the code.
The Bar was ahead of the curve at a time when homophobia remained enshrined in criminal law. Although we faced little direct hostility within the profession, what we did face was a lack of appreciation that this was discrimination on a par with racism and sexism, rather than representing a general aspiration that people be more kind.
In 2018, I sustained a complete spinal cord injury and skull fracture in an accident. I returned to the Bar in 2019 as a full-time wheelchair user with a hearing impairment. My first appearance as an advocate post-accident was cancelled altogether by a broken wheelchair lift at the Royal Courts of Justice (RCJ). The fault was known but not publicised. This turned out to be a common theme.
Numerous rights that I had taken for granted now had to be fought for: the right to enter a court independently, to make submissions from an equivalent position to my opponent (if I was lucky enough to get into the court), the right to independent access to chambers, and to get between my room and an accessible toilet independently.
Dealing with disability discrimination in the early 2020s can feel like I have been catapulted back in time to my EDI battles of the mid-1990s.
Both the Bar and court system remain slow to recognise disability discrimination as on a par with other protected grounds. A failure to replace steps with a lift may be considered very embarrassing and unkind but is much less likely to be considered as discrimination which is unlawful and in breach of professional obligations.
The duty to make reasonable adjustments in chambers, as well as in courts, applies to all barristers. The Bar Council’s Disability Panel has had real success in engaging allies in the Courts and Tribunals Service (HMCTS), and the Judicial Office to tackle access barriers in the courts, but this work is in its early stages.
As more disabled pupils come to the Bar, more chambers are appreciating the structural obstacles and systemic discrimination faced by disabled practitioners. As they work to ensure a fair pupillage, they are confronting the sheer scale of access issues in the court system.
For chambers that have not already made their offices accessible, there is also a race against time to make sufficient adjustments, especially if they have awarded pupillage to a wheelchair user for whom the first barrier is physically getting through chambers entrance.
One welcome sign of progress: for the upcoming pupillage gateway, chambers will be required for the first time to identify an Accessibility Officer as a single point of contact for access and reasonable adjustment queries.
Even in Chambers that have done significant EDI work in other areas, disability discrimination often remains the poor relation. It is too easy to blame listed buildings for supposedly insurmountable access constraints and to publish the Bar Standards Board’s reasonable adjustment policy as if that is job done.
We have found, which is a surprise to some, that the Government’s Disability Confident scheme can really help. It provides three tiers of accreditation for employers: DC Committed, DC Employer, and DC Leader. The scheme was introduced in 2016 to criticism for not being demanding enough and, because the first two tiers were self-accredited, they could be achieved by doing very little.
Doughty Street announces its DC Employer (Level 2) accreditation this week following prolonged work by a committed group of staff and barristers. By asking how much we can achieve for disabled people under each criterion, not how little we can get away with to self-certify, we have embraced the Disability Confident framework to leverage real change. We are also treating DC Employer as a journey towards achieving DC Leader status based on external accreditation.
It is true that some requirements reflect what organisations are legally obliged to do anyway. However, the knowledge gap on disability discrimination means that guidance on the legal requirement to make timely reasonable adjustments for the workforce together with anticipatory adjustment for disabled clients is no bad thing. While some of the requirements are subjective, others are more concrete. A good example is the guaranteed interview for disabled applicants, which is one of the core commitments for DC Committed, and a more detailed requirement for Employer. Like other requirements, its importance in increasing disabled representation in chambers derives both from its direct impact and from the wider message it sends to disabled people about chambers commitment to equality.
The low bar, at least for the initial accreditation, was justified as reducing the excuses businesses can make not signing up. This has worked: it has gained real traction in business and especially public authorities, making the scheme widely accepted as a benchmark. The very fact that it is represents a basic, government endorsed benchmark makes it a valuable tool in fast tracking these concrete requirements that otherwise risk being shelved to await some overarching EDI strategy.
Published DC guidance unsurprisingly focuses on employees. For chambers, it is vital that the scheme embrace the entire workforce, pupils and all forms of tenants as well as staff, so complying with both our professional and legal duties. It therefore really helps to work with and learn from other chambers. There is a unique opportunity now to do that by signing up to the Bar Council’s pilot scheme, which will also enable chambers to benefit from specialist support.
About the author
Mark Henderson has been a member of Doughty Street Chambers since 1998 specialising in media, public, immigration and human rights law. Clients have included the Leader of the Opposition and bereaved, survivors and residents in the Grenfell Tower Inquiry. He is a former Legal Aid Barrister of the Year.
Mark sits on the Bar Council Disability Panel and the RCJ Accessibility Project Board, which brings together the Ministry of Justice and HMCTS, along with the judiciary and professional and lay court users. He is a member of the Bar Standards Board Disability Taskforce. Outside the Bar, he is Vice Chair of the Spinal Injuries Association.