Derek Sweeting QC is Chair of the Bar from January 2021. It is difficult to envisage a Chair taking on this role at a more turbulent time for the profession. I sit down with Derek in mid-November to discuss the challenges that the Bar faces.
Our new Chair is recognised for his work in personal injury and clinical negligence. Derek starts his tenure with fresh memories of victory in the Court of Appeal in the milestone case, Swift v Carpenter  EWCA Civ 1295. Now he turns his considerable energy and intelligence to the problems that are facing the Bar in the year to come. He couples his natural good humour with
an understanding of the serious nature of the
The pandemic is obviously the most urgent crisis that our incoming Chair will face. In May 2020, Derek commented that he felt ‘we’re in a large laboratory at the moment where lots of things are being tried on a timescale we couldn’t have imagined only a year ago.’ He feels now the question has changed: ‘It’s no longer what could we do online but what should we do online.’
Derek fears the impact that the pandemic will have, particularly on the publicly funded Bar: ‘What we have to make sure of, and what I am planning on doing next year, is to try and avoid setbacks from the pandemic determining the fate of the Bar.’ He continues: ‘We have to recognise that we have to start at the beginning and ensure that entry to the Bar is really open to everyone.’
Derek recognises that social mobility and diversity cannot involve a ‘hundred-year horizon’. He speaks of the need for real change now, recognising that ‘there are a lot of barriers and we must remove them’. He continues: ‘We need the government to look at how publicly funded barristers get paid, including timing and career pay structures.’ The silver lining that Derek sees is that the government will have to tackle the backlogs caused both by the pandemic and the decision to reduce sitting days in 2019.
It is clear that Derek takes a thoughtful and considered approach to issues of representation and that they are issues he has had to face during his own career. The challenges of making it to Cambridge University from an Essex, ex-grammar turned state comprehensive meant that from a young age, his path to the Bar was non-traditional. His father was the only member of a large working-class family before him to go to university, taking advantage of the post-war Education Act. Derek expresses some disappointment about the progress that has been made, saying: ‘I didn’t think when I was called in 1983 that the Bar would be where it is now; I thought it would be more widely inclusive.’
After his A-levels, Derek spent a year in the Army; first at Sandhurst and then in West Germany as a tank commander. On completion of his undergraduate studies, he joined a reserve commando unit, serving for nearly two decades as
a reservist and spending many weekends jumping out of planes.
This experience led directly to his being instructed by the Ministry of Defence, which was looking for someone with relevant experience. Derek reflects: ‘I hate to think what state my career would have been in if I hadn’t had the opportunities that arose from going places, doing things and meeting people entirely serendipitously.’ Derek links this experience back to the impact of the pandemic on those hoping to succeed at the Bar from non-traditional backgrounds, stressing the importance of ensuring that the current generation don’t miss out:
‘We can’t just repeat the old mantra that if you are determined enough, you will make it to the Bar. If you want to come to the Bar and are good enough to come to the Bar, we need to make sure that there are not artificial obstacles in people’s way.’
Momentum in society more generally draws attention to the Bar Council’s ongoing work around race and increases the visibility of the Race Working Group’s efforts. Derek pays tribute to ‘the impetus that the Black Lives Matter movement has given across society, and particularly in the professions, to do more, rather than just continue the work that is under way’.
Derek sees race awareness training as an important tool and considers that it ought to be something looked at by the whole profession, perhaps not just in relation to race but also in relation to unconscious bias against other, less-represented groups at the Bar.
The final challenge we discuss is relations between the Bar and the government, and the impact that this has on the rule of law. Derek hopes to build on the relationships established between the Bar Council and government during the pandemic. He expresses the fear that if the rule of law and access to justice are routinely encroached upon, our current, flexible, constitutional arrangement will prove unworkable and many of its advantages will be lost.
I ask Derek to expand on this: ‘We have a very important role in making sure that we have the rule of law and an effective avenue for citizens to challenge the government and assert their legal rights privately as well. I think the importance of doing that, maintaining the independence of the Bar and the professions and the rule of law, which depends on it, is something which has been absolutely underlined. We have seen attacks on that for short-term political purposes. The problem with that is that we have an unwritten constitution; it depends upon a shared understanding of, and adherence, to limits and protocols. When you see those being crossed deliberately I think it is actually quite sinister. We need to make sure we are calling that out and trying to ensure it doesn’t happen.’
Throughout, it is clear that our new Chair sees enormous value in the Bar Council’s representations to government, on the rule of law, on pay and on diversity. I ask Derek for his views on the Bar Council: ‘It would be very odd for a profession like the Bar not to have its own dedicated body lobbying the government. It’s important to have a body that can make the arguments we’ve had to make this year, to call out those trying to undermine the independence of judges and lawyers, who are just doing their job, and to do all this both behind the scenes and publicly.’
I look forward to hearing more about how the positive principles that Derek espouses will be put into practice in the near future as he launches initiatives to tackle the very real issues the Bar faces in 2021 and beyond.