Tenancy on the Line: Could Neurotechnology Decide Who Stays at the Bar?

By Nahed Hadid

Neurotechnology — such as brain–computer interfaces (BCIs) — directly interacts with the human nervous system. These devices record, store, and analyse neural data to understand, and potentially influence, the mind.^[1]

What if your future as a Barrister — tenancy, the defining threshold of a career at the Bar — were decided not by your advocacy or legal reasoning, but by a headset measuring your brain activity?

This possibility is no longer science fiction. BCIs are already used in medicine for conditions like Parkinson’s disease and epilepsy, and commercial investment in neurotech is growing. Major developers, including Neuralink and other firms, are pursuing both implantable and wearable BCIs; some systems are now in human trials.^[2] Regulators and policymakers are taking notice: countries such as Chile and Spain^[3] have started to legislate on neurodata, and the Parliament of Victoria has actively examined “neurosurveillance” in the workplace.^[4]

Dr Allan McCay has hypothesised that employers may one day monitor “billable units of attention” rather than billable hours.^[5] I take that hypothesis one step further: What if Chambers applied the same logic to pupillage and tenancy decisions at the Bar? That question tests the legal and ethical boundaries before neurotech ever becomes a gatekeeping tool.

Why tenancy is different

Tenancy is the Bar’s gatekeeper. Pupils are not employees; they occupy a precarious, dependent position where a single adverse decision can seriously hamper a career. Introducing neuro-monitoring at this stage would magnify existing power imbalances and risk replacing qualitative judgment with opaque neurodata metrics. A “neurotypical” benchmark could quietly exclude neurodivergent talent — such as those with ADHD or autism — undermining the Bar’s commitment to diversity.

Legal and ethical risks

If neuro-monitoring were used in pupillage or tenancy decisions, the risks would be serious:

• Privacy and freedom of thought. Monitoring neural activity engages Article 8 (private life) and Article 9 (freedom of thought) of the European Convention on Human Rights.

• Consent and coercion. A pupil cannot meaningfully refuse if compliance affects tenancy prospects; consent under such conditions is hollow.

• Equality. Using neurodata as a performance metric could amount to indirect discrimination under the Equality Act 2010, especially for neurodivergent candidates who require reasonable adjustments rather than enforced conformity.^[6]

• Manipulation. Monitoring could evolve into modulation: what starts as “focus tracking” may slide into attempts to influence or alter cognition, raising acute ethical concerns about cognitive liberty.

  
  

Emerging protections

Scholars (including Marcello Ienca and Roberto Andorno) have argued for neurorights: cognitive liberty, mental privacy, mental integrity, and psychological continuity.^[7] These principles are only beginning to influence international policy discussions (for example, UNESCO^[8] and the OECD)^[9]  and are far from widely adopted, but they indicate that groundwork for future safeguards is already being laid.

Conclusion — food for thought

Neurotechnology offers medical and workplace benefits. Yet its potential use in pupillage or tenancy decisions raises difficult ethical and legal questions about privacy, equality, and cognitive liberty. While there is no immediate prospect of such monitoring at the Bar, reflecting on these issues now can help the profession stay prepared for future developments. Rather than calling for urgent action, this piece invites debate: how should the Bar safeguard fairness and diversity if neuro-monitoring ever becomes a consideration in pupillage and tenancy decisions?

^[1] Australian Human Rights Commission, Protecting Cognition: Background Paper on Neurotechnology and Human Rights(Australian Human Rights Commission, 12 March 2024) 5.

^[2] ‘First Human with Neuralink Brain Chip Demonstrates Moving Cursor with His Thoughts’ (21 March 2024) <https://nypost.com/2024/03/20/us-news/first-human-with-neuralink-brain-chip-demonstrates-moving-cursor-with-his-thoughts/> accessed 10 September 2025.

^[3] Chile has amended its constitution to protect mental integrity and Spain’s Digital Rights Charter includes neurodata provisions; Australian Human Rights Commission, Protecting Cognition: Background Paper on Neurotechnology and Human Rights(Australian Human Rights Commission, 12 March 2024) 11.

^[4] Legislative Assembly, Economy and Infrastructure Committee, Inquiry into workplace surveillance (Parliament of Victoria, May 2025) 25-26.

^[5]‘Billable Units of Attention: Why Workplace Neurosurveillance Matters for Lawyers’ Law Society Journal (2024) < https://lsj.com.au/articles/billable-units-of-attention-why-workplace-neuro-surveillance-matter-for-lawyers/> accessed 5 September 2025.

^[6] Equality Act 2010; ACAS, Adjustments for Neurodiversity in the Workplace (2024). See also, Acas, 'Adjustments for neurodiversity' https://www.acas.org.uk/reasonable-adjustments/adjustments-for-neurodiversityaccessed 10 September 2025.

^[7] Marcello Ienca and Roberto Andorno, 'Towards new human rights in the age of neuroscience and neurotechnology' (2017) 13(5) Life Sciences, Society and Policy 10-20.

^[8] United Nations Educational, Scientific and Cultural Organization.

^[9] Organisation for Economic Co-operation and Development.

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