“I owe a great deal to the Bar, though I never practised,” Baroness Deech, the new chair of the Bar Standards Board (BSB), comments when I interview her early in March. Called in 1967, she was of the generation that saw the hurdles of starting out without connections or private resources and then looked elsewhere for a career. That “elsewhere” was 20 years as an Oxford law don, including 13 years as Principal of St Anne’s College, nurturing generations of undergraduates who went into both branches of the profession. She is as familiar with the Bar as anyone could be who has not herself appeared in court.
The Bar Council created the Bar Standards Board as its regulatory arm in the light of the Clementi Report and in anticipation of what became the Legal Services Act 2007, which confirmed the arrangement. The mere fact that there was now something called “a regulator” irritated some barristers, who pointed their collective finger at words like “diversity” and “customer” and at the plethora of “evidence based” consultations as the BSB took a fresh look at what they were now going to oversee. In fairness, the BSB paper which justified its decision to quash deferral of call compares favourably with the quality of the Bar Council debate on the issue.
Quality the watchword
She recognises that “the Bar is going through hard times, many sections are worried about legal aid” (she taught family law and recently spoke at the Family Law Bar Association dinner) and they may ask “why do we have all this regulation which we ultimately have to pay for?” She wants to reassure them that “we will be working with them on the substance and quality; we will try not to spend money on unnecessary governance and regulatory trimmings.” More than once she repeats to me the BSB’s theme of “enabling members of the Bar to flourish”; “quality is the watchword, quality in selection, quality in training, quality all the way along.” One can add that in the 75 minutes I spend with her, she uttered no word which anyone might label “jargon”. That will surprise no one who is familiar with her record.
With her background, she is “passionately interested” in education. As a fellow and as principal she had the experience of her students coming to her “sometimes in tears” to say “I want to go to the Bar, but I can’t afford it.” She therefore calls the decision that chambers would pay pupils “the most beneficial and life changing moment”.
It is through the aspect of education that she received a thorough grounding in the problems of entering the Bar. A dozen years ago she was a member of the committee that produced the Barrow Report. That arose from the complaint that black and minority ethnic (BME) students were failing the Bar Vocational Course (BVC) in unduly large numbers. After a year of taking evidence it was concluded that there was no discrimination at all in the marking. However, BME students were depressed: they had greater financial problems, a gloomier outlook for pupillage and generally carried burdens which other students did not, quite apart from some having gone to universities that may not have provided the most rigorous education. The report recommended a non-discrimination code and part-time study. Both were adopted. Today, BME barristers make up a similar percentage of the profession to the population at large.
Keeping the doors open
Taking over in January, Lady Deech inherited what might be called the ongoing “Wood process”: following the report of Derek Wood QC (a former fellow Oxford head of house) the BVC is being re-formed. He is now engaged in a further investigation into pupillage; after that, the BSB will look into the provision of further training through CPD, which she is determined will be available on days of the week when everyone can take advantage of it. She is a firm supporter of the proposed online aptitude test, to make sure “that those who go on the course have the linguistic and analytical skills they need to be a good barrister”. She knows that far more people read for the Bar than there are pupillages, but unlike some, she does not find that to be wrong in itself: the Bar should be in the forefront of “keeping the doors open” for people from a range of backgrounds, and she supports the principle that everybody should get as much education as they are capable of. As such she does not discount the value of the BVC course in itself: “I am one of those who got a Bar education and never used it at the Bar but how useful it has been throughout my life.”
Another work in progress is the revision of the Code of Conduct which she concedes is the “moral” side of the Bar. She spoke in the House of Lords last year in the debate on the then Human Fertilisation and Embryology Bill, not only as a former Chairman (1994–2002) of the Human Fertilisation and Embryology Authority but also, one suspects, as a former lecturer in jurisprudence: “The point of regulation is that people want to know that there are some basic moral principles that keep watch over scientific advances,” she said, and then: “Speaking as an academic lawyer, I think that moral principle in law is very important, almost regardless of what has happened in practice.” She tells me: “no one is more capable of keeping a barrister up to scratch than a fellow barrister”; they watch each other closely and know that they are only as good as their last case.
She foresees the time when the major consultations have been done and things will settle down. Once the relationship with the Legal Services Board (LSB) and the Office for Legal Complaints is sorted out, the ongoing work at the LSB should be less rather than more: “I don’t want the legal profession to be over-regulated, with endless bodies replicating themselves. I am also trying to learn from the failures of regulation in the financial industry.” She points out that the financial industry had a regulatory framework with well-staffed regulatory authorities with business plans and key performance indicators and meetings with stakeholders. What went wrong, I ask? “They didn’t actually focus on the substance and use their common sense.”
She returns to that later: “Our core business is to use our common sense, to make sure that barristers are abiding by the code of conduct, doing their CPD, and being properly trained”. At the same time, “we will fiercely maintain our independence of the Bar Council”—an independence which is now enshrined in statute.
Her career has taught her a great deal about how best to regulate. She learned committee work at Oxford (the BSB has a number of committees which carry out its business due to the commitment of its barrister members and she urges barristers to apply to sit on them). Committees met at family friendly times of day and “I found that I liked it.” Even when there were disagreements: “If you were rational about it and argued your case and you were right, they had to give in, because we were academics.” One of her proudest achievements, which took some years, was the establishment of childcare nurseries at Oxford University. As a working mother, “I wouldn’t be where I am unless my college had had a day nursery,” she recalls. The Bar Nursery Association has a firm friend in Baroness Deech; it may not be core BSB business but “I personally will do all I can to see one established in the Inns or nearby.”
As chair of the Human Fertilisation and Embryology Authority she had to balance the Department of Health’s desire for light touch regulation with the public clamour for heavier oversight when something went wrong—something which might well have been an unpredictable accident or human error. As the first Independent Adjudicator for Higher Education (2004–08) she and her team of lawyers and support staff had to deal with student complaints. As so often, there was a balancing act, not wishing to interfere with the academic judgment of the university while “making sure every student had a fair opportunity to show what they were capable of”, e.g. allowing them to re-sit an exam rather than just add a few marks to a disputed paper.
Hutton Report fall-out
As a governor of the BBC (2002–06) she learned that the governors should not be so distant from the executive in guiding them in common sense. She was there when the row broke out over the interview with Dr Kelly and the fall-out of the Hutton Report after Dr Kelly’s suicide. The real mistake, she says, was not treating Alistair Campbell like anyone else, that is, referring his complaint to the usual thorough investigative procedures rather than fast-tracking it as a VIP. She does not believe in treating VIPs differently. She wishes the BBC governors had slept on it before taking the decision to accept Greg Dyke’s resignation. She was in a minority of three who believed instead that the Corporation should sit it out and sack no one.
Speaking her mind
Having had two retirements and been feted through a large number of farewell dinners (and had a building named after her at St Anne’s) the BSB is her last job, unless one counts the House of Lords (average age: 68) where she sits on the Merits of Statutory Instruments Committee which goes through 1,000 statutory instruments a year, making sure that they are carrying out the policy that are supposed to and are generally fit for purpose. If one reads her speeches in the Lords over the last three years, one is not surprised when she says: “If you ask anyone who knows me, I speak my mind.” At that, the Bar should give a collective sigh of relief.
David Wurtzel is Counsel’s consultant editor