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Mishcon de Reya writes to the Equality and Human Rights Commission to block discriminatory reforms

Posted on 18 December 2020

Mishcon de Reya, on behalf of the Criminal Bar Association (CBA), has written to the Equality and Human Rights Commission (EHRC) requesting it to use its powers to assess whether the HM Courts and Tribunals Service (HMCTS) has complied with its public sector equality duties.

In the context of a heavy backlog of cases and the overloading of the courts, the HMCTS have put forward a proposal to extend the operating hours of courts, citing the pandemic as the apparent reason for this change. This is despite the fact that this backlog significantly predates the effect of the virus and has been more heavily affected by underfunding and reductions to the number of court sitting days.

Proposals for extended operating hours of a similar nature have been proposed and dismissed over the past 18 years, in recognition of the discriminatory effect they would have against junior practitioners in the Bar, particularly those who are;

  • female (and therefore more likely to be primary caregivers);
  • disabled;
  • of particular religious beliefs; and/or
  • from an ethnic minority background.

Indeed, reports from members of the CBA (particularly junior female practitioners) indicate that the introduction of the reforms would make them consider leaving the profession.

One of the stated core values of the HMCTS is to "protect the rule of law by upholding protections of equality under the law and of access to justice." Additionally, all public bodies have a duty to protect and uphold equality, with the EHRC possessing an express power under the Equality Act 2006 to assess whether these duties have been met.

It is based upon both of these duties that Mishcon de Reya has urged the EHRC to compel the CBA to suspend any implementation of said reforms. Given the initial consultation period for these reforms of merely nine working days, there is a clear need for engagement in meaningful consultation with representative bodies of those who will be affected, and consideration of alternative, non-discriminatory methods of reducing this backlog.

Both Mishcon de Reya and the members of the CBA await a decision from the ECHR, hopeful that the body recognises the importance of preserving diversity in the profession and chooses to exercise its power.

Related coverage:
The Evening Standard

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