I asked now what had surprised them since they had taken over. Baroness Deech was quick to note the good surprises: “the very high quality of people I deal with, and the Bar generally, even higher than I expected”, the huge amount of pro bono work that barristers do, and the “enormous number of very good young people who still want to come and practice at the Bar even though they know just how difficult it is, even more difficult than it was a few years ago”. We would return to the plight of young people later on.
A less welcome surprise is the changing personnel they deal with - “never the same people two meetings running at COIC”. Treasurers of Inns are only in office for a year. So, more pertinently, are Chairmen of the Bar. It means that every incoming Chairman has to learn quickly, and to engage in fire fighting because “every year has brought a different political onslaught”. In addition, because the Bar sees great potential in overseas work, the Chairman spends an increasing amount of time selling the Bar abroad and is not always in the country. Baroness Deech and Sir Geoffrey understand why a barrister cannot take off more than a year from practice; they wish it were different but cannot see how that can be achieved.
The role of the Legal Services Board
They were surprised at the level of micro-managing that goes on from the Legal Services Board (‘LSB’). “I thought we would have more scope to regulate as we wish, unless we were being completely unreasonable”, Baroness Deech notes. Instead there are a number of things which have been thrust upon the BSB, such as particular forms of equality and diversity monitoring (for example, the requirement that individual chambers publish their statistics on race, gender and sexual orientation); the overarching education review by all the legal regulators; and the recently introduced requirement that barristers must, on the very first occasion that they meet a lay client, hand over a document explaining how the client can complain. The BSB believed this latter action was unnecessary because the information is already accessible and because it gets the relationship off to a bad start. Members of the criminal Bar may meet their client for the first time in the cells when the defendant is in a vulnerable state but the requirement is no more welcome to the commercial Bar who fear that it could diminish confidence especially with foreign clients.
The next innovation from the LSB will be “outcomes focused regulation”(OFR). Instead of a prescriptive Code it aims to establish at the outset a set of principles. But “what is the outcome to be expected from this profession?” The SRA has introduced OFR for solicitors, but the BSB does not see this as readily transferable to the Bar. What is the right outcome for a trial other than doing justice? A first rate barrister might conduct the case impeccably and yet lose because it transpires that the law is not on his side, while his second rate opponent wins. “It is not enough to put the consumer in the driving seat for everything that happens”, Baroness Deech declares, “there is more to it than that: justice must be done”. The Bar should be regulated “in the public interest”. There are parallels with the provision of services like health and education, where marketisation and competition are not everything.
There does then appear to be a cultural difference between the LSB, which is an economically driven regulator, and the BSB which sees the public interest and the interests of justice as coming first. Sir Geoffrey adds that there are now many people who have influence over how the Bar is run but who have a very limited knowledge of how the Bar actually works. Beneath that is the problem, he says, that the public, who are represented in large numbers as lay members on regulatory Boards, may not understand the Bar’s values. He looks to the Bar to be more active in helping the public understand the Bar’s contribution to society. Baroness Deech points out that the regulators cooperate, she gets along well with the LSB chair, and she wisely ensures that her staff attend meetings with the LSB staff during the period of policy formation. In the end, the LSB has the statutory authority to insist on what they want.
Entry to the Bar
Then there is the task of trying to square the circle about entry to the Bar. The numbers of those doing the BPTC have not decreased, despite the burden of undergraduate tuition fees, the cost of doing the BPTC (now about £16,000), the relatively modest number of pupillages, and the frank letter which Derek Wood QC suggested in his report on the BVC be sent to every aspiring Bar student. The BSB’s overall aim is to encourage only those with the requisite skills to make the large investment needed in training. The remaining tool in the armoury is the pre-Bar School aptitude test, which Wood recommended in July 2008 with the aim of introducing it in 2010. The test has been thoroughly piloted, both for equality and diversity and for accuracy in identifying those most likely to succeed on the course. Subject to LSB approval, it is hoped that it will be introduced for those applying to start the course in September 2013. As Sir Geoffrey says, “it is part of the human condition to say, I’ll be all right”, but the BSB would prefer to introduce some assessment of skills, in the interests of the public and other students, rather than to leave everything to market forces.
“We can support the Bar through hard times because we remain the regulator of the Bar. The new entities regulated by the BSB will have a majority of advocates. If we successfully introduce the Aptitude Test, we will make sure the young people who are most fitted go to the Bar”. Sir Geoffrey has always been puzzled that barristers seemed to be structurally exempt from review of their performance as advocates. QASA will change that: “By focusing on the excellence of the advocacy the Bar does, which will be confirmed by QASA, I think we will be assisting the Bar to show itself in the best light even if it is a bit smaller”. They expect there to be some shrinkage though nothing like the mass exodus which others have been gloomily predicting for a long time. On QASA, “I stand shoulder to shoulder with the SRA”, Baroness Deech declares, having insisted that it be carried out by judicial evaluation. “[Barristers] shouldn’t lose their self confidence and faith in the future”. As far as the BSB is concerned, the Bar will remain independent and there will be no fusion.
We returned to some of the issues which we discussed in 2009. “I am really very annoyed that there is still no Bar Nursery”, Baroness Deech says, “I can’t believe the Inns cannot find the space. I think we could raise the money if we could find accommodation”. This is linked to the issue of retention. The Bar has in effect cracked the problem of recruitment: the percentage of BME barristers matches the percentages in the overall population and exceeds it in the percentage of pupillages. “I see nothing wrong with that”. The problem is what happens after that. I point out the under-representation of women amongst QC’s (11%): “Women don’t seem to have the confidence to put themselves forward; they may be just as good but it is possible that they do less advocacy in court and therefore feel that they don’t have the track record of male colleagues”. The question is getting them to apply - when they do, succeed.
Acting for the Bar
At the end, Baroness Deech says, “I wish the profession knew more about the BSB, what we are doing for it in providing tailored regulation within the Legal Services Act, to make it work in the interests of the Bar, its continued separate existence and the public interest.” “We are doing it because the public needs the Bar”. Sir Geoffrey adds that the benefits which the Bar brings to our society “may all disappear in a time of great change unless they are appreciated for what they are by the public, and here the Bar itself has work to do”.