In January this year when Amanda Pinto QC set out the priorities for her Chairship of the Bar, including publicly funded fees and any fallout from Brexit, who could have known the impact that COVID-19 was going to have on all our lives?
As the effects of the virus began to bite, the achievements of successful female leadership took centre stage worldwide. Our very own Bar of England and Wales was no exception.
Prior to COVID-19, there had been hardly any correspondence from a Chair to the constituent members of the Bar. After March, it is fair to say that there was at least one email a week to members and occasionally more. This was extremely important during a time of confusion, great uncertainty, heightened anxiety and fear. No one knew precisely what was happening and how this would affect our ability to earn a living.
For Amanda, communication was always going to be a key part of her Chairship and she has delivered – regular emails have told us what was going on, what she was doing about it, and then what the results were. In short, what she had done about it. Bar Representation Fee (BRF) payments must have increased and if they did not, they ought to have done so. After all, one could see what one was getting for one’s money. Across the Bar’s rank and file there has been nothing but praise about how hard Amanda has worked on all of our behalves.
For four or five of the last six months, Amanda has worked more or less non-stop, from 8 am until 11 pm. Breakfast and lunch is in front of the computer and at about 8 pm her child asks for supper. Amanda says the Bar Council staff have been nothing short of amazing throughout this period. Going from Zoom meeting to Zoom meeting leaves very little thinking time. It is tough going and a typical day looks like this: 8 am – pre-meeting for the Attorney General and Lord Chancellor’s meeting next week; 9 am – meeting a barrister about abuse at court; 10 am – catch-up meeting with the two chairs of the Race Working Group; 11.30 am – media interview; 1.30 pm – meeting with Head of Crime at the Ministry of Justice (MOJ); 3 pm – Pupillage Fair briefing (2,600 students, at least 45% non-white and 650 barristers participating); 4 pm – legal professional bodies court recovery update (Her Majesty’s Courts and Tribunals Service (HMCTS)).
Inevitably, there has been less travel this year. As Chair of the Bar Council’s International Committee for four years, did she miss this aspect? Has it meant more time to focus on the domestic agenda? She highlights the important meetings she attended in Brussels in 2019 where she had some positive and crucial discussions with European counterparts on issues affecting not just the Bar, but the wider British public. It need not always be the Chair who does the travelling, she says, and sometimes another practitioner or senior member of the Bar Council can do so. She laments the fact that this year she has been unable to undertake many Circuit visits.
Another cornerstone of Amanda’s Chairship has been collaboration. She is rightly proud of her close work with the MOJ, Attorney General’s Office, Lord Chancellor’s Office, members of the senior judiciary, the Inns, Law Society and HMCTS; but also internally with the Specialist Bar Associations (SBAs) and Circuits. She believes that as Chair of the Bar it is her job to understand the issues faced by each of the constituent elements of the Bar.
Amanda says that she knew with great clarity, before COVID, that during her year as Chair she wanted to be collaborative. Amanda believes in ‘one voice with a clear message’. This very often means joining up with others and, as Amanda correctly points out, there will be a fear of giving up your voice: ‘You may lose some of the nuance, but we must be prepared to do that for the greater good.’
The example she cites is working with the 170,000 solicitor members of the Law Society to lend a stronger voice to the 17,000 practitioners of the Bar when engaging with the MOJ. (She points to the positive working relationship with former Law Society President Simon Davis and intends to continue with his successor.)
Our discussion moves on to the funding of the Bar Council. She clarifies that only 25% of the practising certificate is allocated to the Bar Council and what that money can be used for is set out in statute. Lobbying or representation work is not allowed. This is where the BRF comes in. A typical conundrum is this: is the Bar Council’s work on the Criminal Legal Aid Review (CLAR) ‘representation’ or is it in the public interest that criminal barristers are paid properly to ensure there remains a viable defender of public rights and access to justice? If the former, it cannot be funded by the income from the practising certificate. If the latter, it can.
Next up is the issue of criminal legal aid fees. Amanda started her year by continuing the work of previous Chairs on accelerated areas – namely cracked trials, payment for cases with increased reading material, and disclosure. As the consultation on this had stopped during the election, Amanda expected its prompt resumption, and that of CLAR soon thereafter. This long-awaited review, announced in November 2018, has yet to have terms of reference, a chair or panel and so it is easy to see why it was an immediate priority for Amanda. But for COVID, she believes that the accelerated areas would have been implemented in May and CLAR would have been well under way. Now this might not be in place by the time she leaves office.
As for Brexit, Amanda highlighted the difficulty in getting the government to focus on the approximately £32 billion a year that legal services bring into the country’s coffers. Amanda praised the excellent relationships which the Bar enjoys with its European counterparts, and consequently was able to be heard in Europe on important issues such as the mutual recognition of judgments, and other rights of the citizen. She speaks of the tremendous assistance the Bar receives from Evanna Fruithof, a seasoned and experienced operator who represents the interests of the Bar in Europe. She points to the unexpected Internal Market Bill which no one could have anticipated. A very sad feature of this hugely controversial piece of proposed legislation is its removal of the right to judicial review. I am reminded of Lord Neuberger’s comment at an IBA Human Rights Institute webinar on the Bill’s implications (7/10/20): ‘Once you deprive people of the right to go to court to challenge the government, you are in a dictatorship, you are in a tyranny.’
Another of Amanda’s stated objectives has been to ‘chip away at barriers to the Bar’ and wave a ‘long overdue goodbye to any perceptions of an old boys’ club at the top of the Bar’. I wonder how successful she feels she has been in tackling this?
She speaks passionately about the Bar Council’s Leadership Programme, an initiative that has gained life during her tenure. Amanda believes very strongly that in order for the Bar to best serve the public, it must attract the best, and that does not mean that those barristers come from a narrow section of society. Indeed, quite the opposite.
The Leadership Programme is designed to find talent wherever it is, get it into the profession, and nurture, retain and promote it. This, Amanda feels, is a road map for ensuring that the future leadership of the profession and, most importantly, the judiciary are representative of the society they serve. As Amanda says, ‘It is bad enough not to have a diverse Bar, but it is really, really, bad to have a non-diverse judiciary.’ She points out that the judiciary is, in effect, making decisions about people’s lives, contracts, guilt and innocence, employment rights, and a host of other issues that affect ordinary people day in, day out. ‘What we cannot have is a situation where people at the junior end of the profession are diverse, but then that falls away, never progresses and never gets to the top.’
Amanda sees the Programme as a place where people from diverse backgrounds can learn to value themselves as leaders of the Bar, including as heads of chambers, or chairs of a Bar Council Committee, SBA or Circuit. There were 118 applications for 36 places this year; a huge response, demonstrating hunger for the opportunity. The assessment process was rigorous, the quality of applicants was high, and Amanda is hugely excited about this first crop of participants.
An unexpected and exciting benefit of delivering the Programme remotely meant that barristers from all over the country and across practice areas could access and benefit from it. There is also the ripple effect, whereby this year’s graduates become the alumni who mentor and encourage the incoming crop. It remains to be seen whether future Bar Chairs will support the Programme, and not only from a funding perspective.
Staying with this topic, and in terms of initiatives undertaken in light of Black Lives Matter (BLM), Amanda highlights that the Bar was already doing quite a lot to encourage and promote access for prospective Black barristers. However, Amanda feels that what BLM did reveal, with absolutely clarity, was that not enough was being done by the Bar: there was a ‘galvanising of energy and commitment’, a ‘real sense that we had to move to a different level’.
A Race Working Group has now been set up under the Diversity, Equality, Social Mobility Committee and is chaired by Barbara Mills QC and Simon Regis. One of its aims is to recommend practical steps to address the issues faced by, for example, Black pupils who are 50% less likely to gain pupillage than their white counterparts. Amanda is adamant that this must change. The group’s membership is broad and covers the Circuits and cuts across practice areas. The group has already produced templates to assist chambers with a view to measuring outcomes.
For Black practitioners at the Bar, committees have been a mainstay of past action plans which sadly have produced no results. Hence we are where we are now. There is a sense that it is more than time for action. The word quotas may send shudders down some spines but I point out that quotas brought about the swiftest increase in the number of women parliamentarians in any ruling government. The BBC is now embracing quotas in order to move forward with change. It begs the question what is so special about the Bar and Bench that they cannot? Speaking at Temple Church as part of Black History Month on 21 October 2020, Shadow Justice Secretary David Lammy MP posed the question uppermost in our minds: ‘How can we move from conversation to action?’
I share this concern and this scepticism with Amanda. What happens if the issues raised by BLM are not a priority of an incoming Chair? Amanda is sympathetic. She stresses that her three priorities on coming in as Chair were all related to access to justice in the domestic and international context, but she took the decision to ensure that ‘diversity did not become an optional extra’. This enabled her to maintain diversity on the agenda during the pandemic and get, for example, the Leadership Programme off the ground.
Amanda also calls out the types of racist attitudes which we have recently read about in the criminal justice system. She is clear that we must all play our part – barristers, judges, the MOJ and members of the public, in rooting out this totally unacceptable behaviour.
She rightly makes the point that having a diverse Bar and judiciary where Black barristers are at all levels enriches the legal profession and ultimately benefits the public whom we all serve, in the same way it has been shown that having women at the table has changed and enriched organisations, resulting in successful outcomes.
Amanda reports some very encouraging conversations with the Crown Prosecution Service which is taking positive steps to review its data on counsel it instructs, and looking at ways to ensure actual equality of access. I suggest that it seems time that the Treasury Solicitors publish detailed data on the numbers of Black (not BAME) barristers who are instructed on the various panels and to conduct a review which focuses on implementing targets for increased access to that work which in turn feeds into the queens counsel system, and judicial appointments. This is, after all, taxpayers’ money we are taking about.
Amanda has had some tough calls to make during her leadership. Throughout COVID, she stresses, she made decisions on what mattered, trying to do the right thing at the right time, stepping back from the surrounding panic, putting out information in a calm and measured way, and not using extreme language unless absolutely warranted.
One of many brave decisions that Amanda had to make was to say to HMCTS that the courts ought to close. The government’s advice at that time was that members of the public should stay at home, but there was no guidance on the use of masks or on social distancing. Amanda was acutely aware that barristers were still going to court, and jury trials were still ongoing. She rightly took the view that the courts were not safe and acted swiftly with the MOJ and others to ensure that the courts were COVID secure before barristers could resume working there. Amanda’s call proved correct. We now know that the courts have since implemented a raft of measures to make them safe.
My time is almost up, so I end the interview by asking Amanda to tell me something which people may not know about her. She pauses, thinks about it, and says: ‘I have been filmed on the Great David’s shoulders at Glastonbury!’ David Bowie, I wonder? Neuberger? Lammy? The mind boggles. She has to go so I do not have the opportunity to ask more. What we do know for sure is that future leaders of the Bar will be standing on her shoulders; she is one of the true giants in the Bar’s long history of Chairs. In what has been an extraordinary year, Amanda has indeed been an extraordinary leader.