"Social inclusion," as Frank Furedi, professor of sociology at Kent University notes, "is one of those fashionable concepts like transparency and accountability which everyone uses but rarely defines … social inclusion is generally accorded the status of a public virtue".

The Bar Council seeks to promote diversity and social inclusion and has established a working party to consider 'Entry to the Bar'. To measure legal institutions against the new public virtue of inclusion is assumed to be a good thing.

There are three particular dangers in seeking to judge the success of the Bar as a legal institution by how it promotes diversity and in trying to reform it if it does not.

The first is that standards will be eroded. It is quite clear that the educational system fails large numbers of people, particularly from socially disadvantaged groups. It is largely people from these groups which the 'access lobby' wishes to see included. The consequences of the pressure to include people from such groups should not be underestimated: the drive for 'access' in other contexts, according to Furedi, has meant that university lecturers find themselves "under pressure to mark positively to provide a climate of support where no undergraduate feels intimidated or offended". To accept the new public virtue of social inclusion as a touchstone for access to a legal career risks similar dumbing-down.

The second risk is that the autonomy of the Bar will be undermined. If our ability as barristers is not to be judged solely by our legal skills or our performance and integrity as advocates, non-lawyers and non-advocates can become involved in scrutiny of standards and in selection. This has happened to a limited degree in the new disciplinary structure of the Bar Standards Board and, more significantly, in the reformed silk selection system, which includes non-lawyers and non-advocates as a central part of the process. One of the objections to the old silk system was that the role of the executive in the system undermined the autonomy and independence of the Bar. To seek to quantify a barrister's performance by how much the advocate is seen as promoting an extra-legal standard of diversity (as judged by non-lawyers), is arguably no less objectionable.

Thirdly, the language of diversity may undermine the rule of law itself. The law provides a commonly accepted objective code by which we can order our affairs and regulate our lives. The language of the access lobby potentially undermines this. For instance, in seeking to justify the laudable aim of encouraging women into the judiciary in a speech to the Chancery Bar Association, Lady Justice Arden adopted the language of the access lobby. She wanted to see greater access for women because: "Women bring new perspectives to bear, as well as their intellectual skills and knowledge of the law. They have different life experiences. They have, in some respects, different approaches. Of course, appointment must be solely on merit, but merit should take into account the different but equal kinds of contribution that women can make. They challenge the white male majority about their views and assumptions. The process of decision-making and thus the development of the law are thereby enriched."

She applied this equally to ethnic minorities and to access to the silk system. Her language appears to assume that a judge's or an advocate's approach to deciding or presenting a case differs depending on gender or ethnicity. While this may make sense in sociological terms, it is a very unusual way to look at the law, which provides an objective code which should be objectively understood and applicable regardless of the gender or ethnicity of the person applying it or arguing it. If we are to approach the law on the basis that there are relevant differences to decision-making and advocacy based upon gender or ethnicity, why should litigants not demand that their cases be heard or their representation be conducted by people of a gender or ethnicity they prefer? Why not have different laws for different ethnic groups? If the differences, however, are irrelevant to the law as it is to be objectively understood and applied, it is difficult to see how they can be used to justify greater inclusion of women or ethnic minorities.

Jonathan Karas QC is a tenant at Wilberforce Chambers.

Talkback: Will the drive for a more diverse legal profession dumb down quality? Click here to have your say.