Newsletters Professional Discipline 27th Feb 2018

Racial Discrimination by a Regulator: O’Connor v Bar Standards Board, 2017

The question of racial discrimination by a regulatory body was indirectly brought before the Supreme Court in O’Connor v Bar Standards Board, 2017 UKSC 78.

The context

The Bar Standard Board (‘BSB’) Complaints Committee had brought six professional misconduct charges against the appellant barrister, Ms. O’Connor. On appeal it was found that none of the charges in fact amounted to a breach of the Code of Conduct of the Bar.

Ms. O’Connor then filed a claim against her regulator, the Bar Standards Board, for violating her right to a fair trial under Article 6 and the prohibition against discrimination under Article 14 of the European Convention on Human Rights (‘the ECHR’).

A 2013 report by Inclusive Employers into the BSB’s complaints system (‘the 2013 Report’) had concluded that black and ethnic minority barristers:

  1. Were disproportionately over-represented in the complaints process
  2. Were more likely to have a complaint referred to disciplinary action
  3. Were more likely to have complaints upheld against them

Ms. O’Connor relied on the findings of this report, together with the history of proceedings against her, to support her claim that she had been the victim of discrimination by the BSB.

Proper operation of limitation

The core issue before the Supreme Court in this case was in fact the operation of a limitation period.

The BSB asserted that Ms. O’Connor’s claim was time barred under s. 7 of the Human Rights Act 1998 (‘the HRA’), which states that proceedings must be brought before the end of one year from the date “on which the act complained of took place”.

The Court of Appeal had held the limitation period ran from when the tribunal had found the case against Ms. O’Connor proved, rendering her HRA claim time barred.

However, the Supreme Court ruled that s. 7 HRA should not be given an overly restrictive interpretation. It found that the alleged HRA infringement related to the entire pursuit of the disciplinary proceedings against Ms. O’Connor, beginning with the original charges and only ceasing with the verdict of the relevant appeal court.

Significance of the decision

The operation of the limitation period was at the heart of this appeal. The merits of the discrimination claim were therefore not formally before the Supreme Court. For that reason, the Court did not consider the question of racial discrimination against Ms. O’Connor in any detail. Nonetheless, its brief consideration is highly significant in three ways.

Firstly, the decision raises the profile of this issue. Despite not being considered in any detail, the consideration of racial discrimination in a regulatory context by the highest court in the United Kingdom puts an important spotlight on the issue. This is particularly true given that the conclusions of the 2013 Report were included in the body of the decision.

Secondly, the Supreme Court approved the finding that there were reasonable grounds for bringing the claim of discrimination against the BSB, and that Ms. O’Connor’s claim had a real prospect of success.

Thirdly, the Supreme Court rejected the suggestion that a “statistical difference in treatment is the only way” in which a claimant can establish discrimination amounting to an infringement of Article 14. The judgment reiterated the decision of the Strasbourg court that indirect discrimination can be proved without statistical evidence.

Those practising in the regulatory field will surely be keen to follow the journey of Ms. O’Connor’s claim against the BSB following this decision.

 Grace Forbes 

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