Over Chinese noodles in the House of Lords’ café, the blogging, tweeting, former chairman of the Bar Standards Board discusses divorce reform, disability discrimination, the demise of freedom of speech at universities – and, of course, legal regulation.
Baroness Ruth Deech, former law fellow and Principal of St Anne’s College, Oxford, has had extensive experience of regulatory bodies, serving as chairman of the Human Fertilisation and Embryology Authority (1994-2001), a BBC governor (2002-2006), and as the first Independent Adjudicator for Higher Education (2004-2008).
In 2009 she was appointed chairman of the Bar Standards Board – a role she was to hold for six years, presiding over some of the most radical shake-ups to the bar.
She explains how she got the job after coming to the end of her time as adjudicator for higher education: ‘I was looking for a sort of portfolio part-time existence. I saw the [BSB] ad in the newspaper and I thought that looks boring and badly paid.
‘Then the ‘phone started going and all my legal friends started ringing up saying “Ruth, there’s a job. Nobody else wants it; it’s boring and it’s badly paid – you’ve got to do it.” I fall for that sort of thing, so I did it’.
But she reflects: ‘It wasn’t boring – sometimes very fraught, but never boring.
‘I felt it was very important and worthwhile, even though some of the barristers you had to deal with were a bit unwilling to be regulated’.
The former chair explains her two main aims during her tenure – to preserve the distinct nature of the bar through maintaining a separate regulator, and to cut through ‘the dreadful business jargon, unnecessary bureaucracy and interference’ in regulation.
The greatest achievements, she says, were ‘keeping the bar separate – we kept it from being crushed by the really rather ignorant Legal Services Board; we produced a new handbook, which was a mammoth undertaking; and we got alternative business structures done. We also managed to preserve the cab rank rule’.
‘Before I left, I looked back at the original business plan and we had achieved everything that was in it from reform of CPD to reform of pupillage’.
Deech is passionate about the importance of an independent bar, but rejects as ‘complete nonsense’ the accusation levelled at the BSB from some quarters, most notably the LSB, that the regulator was at times too close to the representative Bar Council.
‘We weren’t close to the bar. We were in the same building to save money. But if anyone thinks we were close to the bar, why would we have introduced QASA [Quality Assurance Scheme for Advocates], which the criminal bar practically went on strike about?’
And working to introduce QASA, despite strong opposition from the rank and file, she insists, was ‘the right thing to do’.
Every profession, she asserts, requires some form of feedback, appraisal and accountability. She was ‘baffled’ by the hostility to the scheme, which she says only ‘asks people to undergo a feedback regime every few years.’
‘I don’t really know what they were so upset about because I’m sure there are very few poor advocates. By the nature of the job you wouldn’t get very far if you weren’t good at it.’
She adds, if the complaints made by some at the bar about the inferior standard of solicitor advocates are right, QASA ought to help the bar. ‘If the solicitor advocates are really that bad, it would be a way of highlighting it and making them pull up their socks’.
In any event, she insists it was the LSB leading the charge for QASA as part of its ‘mechanical regulation model’, which was not tailored to the bar; rather a reflection of how it thought regulation is done.
‘Protector of the bar’
During her time at the BSB, Deech saw herself as a ‘protector of the bar, not for its own interest, but as the ‘real upholder of the rule of law’.
‘There is only one profession that will take any case that comes, under the cab rank rule, even if it’s for terrorists or against the government. Unless you have a cadre of people that are prepared to do that your legal system is not going to be fearless and you’re not going to have the rule of law’.
The reforms introduced under her watch, which included the first move towards ABSs, she insists, did not undermine the independent bar or create a slippery slope towards fusion.
Barristers, she insists, in whatever form they practise, ‘have a very strong sense of their own identity and their own mission’.
Deech, who is married to a solicitor, contrasts the two professions. ‘The solicitor’s ethos, as far as I can make out, is more business-like and about making money.
‘Some firms have ideas about what sort of work they’ll do – they’ll only do work for trade unions or whatever. So it’s a more limited range and it’s probably more dominated by overall earnings and marketing and so on.’
Adding swiftly: ‘I’m not saying that barristers aren’t interested in earning – you bet they are. But I think solicitors as a whole have more of that drive, while the individual barrister has something else to think about as well’ – defending the rule of law.
Praising barristers’ pro bono efforts Deech would like to see City law firms up their game, though she stresses it must not be seen as a way of filling the gap left by legal aid. ‘It’s the government’s job to fill the gap, not the solicitors’ firms’. And the proposed levy on City law firms to fund the justice system is ‘wrong’ she says, comparing it to getting doctors to fund A&E.
Bring back the old-style Lord Chancellor
‘It was a big mistake to have changed the role of Lord Chancellor,’ asserts Deech. Although it was a ‘strange role’ she observes: ‘The Lord Chancellor was both a judge, a member of the government and a legislator – somehow once in position and once they’d put on the wig and silk stockings and assumed one of the highest positions in the land, they turned into champions of justice and guardians of the courts’.
There is now nobody who serves that role, she bemoans. ‘There’s no one to champion at the highest level the rule of law and how justice is to work. That leaves a terrible gap in our government now. I regret very much the turning over of the job to lay people and to it becoming an ordinary ministerial post.’
She continues: ‘Mr Gove seems to “get it” more than Mr Grayling did. But the Lord Chancellor, even someone as intelligent as Mr Gove, is a politician – here to day, gone tomorrow and looking for the next job.’
She calls for a return to the ‘old-style Lord Chancellor’. ‘Only they have the overview of the court system, what’s going on and how it ought to be represented at Cabinet and fought for’.
The future of legal regulation
On this subject Deech is adamant, leaning in to the recording machine to ensure her views are captured: ‘I’d like to see the end of the LSB’.
She describes the Legal Services Act 2007, which created it, as the ‘worst Act I’ve ever seen, both in drafting and in structure’.
‘I have worked as a regulator under lots of different Acts of Parliament and that one is appalling – with its eight objectives in no particular order and its nightmare hierarchy of regulation’.
Deech continues: ‘I hope that the LSB folds its tent and goes. You could then leave the various professions within the legal system to regulate as they do now, with separate regulation and trade union elements.
‘You could have a forum where they come together and discuss things, but there is no need, and there never has been, for the LSB, the cost of which is horrendous’.
As indicated above, Deech is ‘certainly’ against the idea of a single legal regulator, insisting that small regulators are ‘cheaper, better and more in tune with what’s necessary’.
Pointing to the City to support her case, she says: ‘Look what happened in the financial world with the crash – one great big financial regulator – powerless.
‘And afterwards it was said that the one, big financial regulator was too far away from all the different parts of the financial market.’
Citing another example of a failing behemoth regulator, she turns to health and the Care Quality Commission. ‘The newspapers are full of stories that it missed this and didn’t see the other’.
Disability law review
A crossbench peer since 2005, since her second term of office with the bar’s regulator ended, the noble baroness has turned her focus to law reform.
She chairs the House of Lords’ select committee on the Equality Act 2010 and disability, looking at the experience of disabled people seeking justice against discrimination.
‘We are looking at whether disabled people are better off, or not, under the Equality Act 2010 compared with the prior situation where they had their own Disability Discrimination Act.
‘Now disabled people are treated together with all the other protected minorities – transgender, black, female and so on. And it may be that disabled people are losing out’.
Currently taking evidence, the committee, says Deech, has heard some ‘very sad stories’. Though whether they are the fault of the law or caused by a poor attitude and lack of understanding among employers and service providers, she is not certain.
‘The appearance is that employers don’t always understand what reasonable adjustments they’re supposed to make and service providers, like small shops and restaurants, don’t disturb themselves to make the right adjustments even when a disabled person turns up.’
And the legal aid cuts, she says, have made the problem worse, removing from the most vulnerable the ability to seek redress. ‘We are hearing that disabled people can’t afford to take the legal action they are entitled to and so they aren’t able to do it.
‘It’s no good having a decent law about disability if people can’t enforce it.’
Deech suggests that employers ‘must be tempted to behave in a more cavalier fashion’ knowing that disabled employees will be unable to afford to go to a tribunal to fight any discrimination.
Keen to reduce the costs and introduce more certainty into the process of divorce settlements, last year Deech began the process of steering through the Lords the Divorce (Financial Provision) Bill – a private member’s bill that would reduce spousal maintenance, introduce a formula for capital division and make prenuptial and postnuptial agreements binding.
Due to the peculiarities of the process, Deech must enter a ballot for the bill to progress, and she insists the need is ‘more urgent than ever’.
‘I want to make the whole financial structure cheaper and fairer. Every day there are stories in the press about couples who have spent three quarters or more of their assets on fighting each other, and in some of the richer cases, the legal costs amount to millions. It’s a terrible waste of assets.’
In her endeavour, she is boosted to have the support of divorce lawyer to royals and stars – the ‘Steel Magnolia’, aka Baroness Fiona Shackleton.
This was not her first foray into marriage reform. In 2013, she introduced an amendment to the Marriage (Same Sex Couples) Bill that would have extended its provisions to cohabiting family members and carers.
She has championed a long-running campaign on behalf of elderly sisters who have been living together for many years. ‘They tell me that if they were gay, they could get married and save on tax and inheritance duties.
‘I think they have a very strong case and I don’t see why sexual relationships should be privileged above others that may be much longer and much more co-dependent’.
Legal education and diversity in the profession
While Deech believes the diversity of those entering the bar is ‘absolutely first rate’, retention she accepts, particularly of women, is a problem. Though, she thinks it is no worse than in other professions. And she is proud that the Bar Nursery was set up on her watch.
Accounting for the lack of women in the senior judiciary, she explains there is still only a small number of women who in the profession who are of the age to sit in the Supreme Court.
‘I was in a class of 150 men and eight women. If you were a woman, doing law in the 1960s was almost like hanging a placard round your neck that said “I’m unattractive; I’m a blue stocking”’.
When it comes to the under-representation in senior legal and judicial roles by ethnic minority barristers, she suggests: ‘Maybe the way to the top at the bar is not to go for the altruistic areas like legal aid, but for commercial law’.
The former Oxford University Principal, who studied law, naturally believes a university law degree is a ‘very good education in itself even if you don’t come into the profession’. But she decries the cost of the Bar Professional Training Course. It is she says, ‘far too expensive – it’s actually a rip-off and it’s outrageous to pay all that money without even knowing whether you’ll have a job at the end’.
With a heavy heart, she says she is ‘not optimistic’ about any student’s chances, regardless of background, of getting one of the declining numbers of pupillages, especially in criminal and family law.
‘Maybe it’s cruel to encourage thousands of young people to come to the bar when you know there aren’t going to be jobs for them,’ she says, suggesting it will only result in a whole cadre of individuals unable to get into the bar, who ‘feel bad about the bar for the rest of their lives’.
Freedom of speech in universities
Deech takes an interest in university life. She is concerned that freedom of speech in under attack on university campuses, which she says, should promote and secure free speech.
Last month she tabled a debate on the issue and asked the government to consolidate the laws in relation to freedom of expression at universities and define many of the terms used in the Prevent Policy, introduced by the Counter-Terrorism and Security Act 2015 and which requires universities to ensure that where there are speakers with extremist views on terrorism or who preach non-violent extremism they should be challenged with opposing views at the same event, rather than banned.
‘There is a pincer movement – with on the one hand, students who for various reasons have become censorious, frightened, intimidated and intimidating, and have banned speakers and shut down magazines they disapprove of – and on the other hand, laws and the government’s Prevent Policy imposed on universities to control free speech.
‘People take offence at anything and feel they have a right not to be offended,’ she says and continues that freedom of speech is being curtailed to such a degree that there is ‘hardly any freedom of speech in universities at all’.
She is appalled at the trigger warnings that lecturers at universities across the pond are obliged to give their students, warning them where the content of the course might upset them in some way.
On the basis that universities are a ‘microcosm of the wider world’, Deech is concerned about freedom of speech more widely.
Deech is the daughter of historian and journalist Josef Fraenkel, who fled Vienna and Prague from the Nazis, and arrived in Britain in the day that the Allies declared war on Germany.
She gained a first class law degree from St Anne’s College, Oxford, where she went on to become Principal and has a building named after her.
After graduating, she says she was ‘not tempted by the idea of practicing law, but always liked the abstract idea of justice’.
She did toy with the idea of practice, but recalls thinking ‘you needed money and contacts to get ahead, which I didn’t have’. She was, she says ‘quite ready to be deterred and I fell into a teaching job instead, which was fine’.
Had she practised, Deech would have gone for the bar rather than the solicitor’s profession, as the latter ‘struck me as more mundane’.
Though she suggests, she would not have made a good lawyer for two reasons. ‘The first is that I’m always convinced I’m right; so I wouldn’t be very good at seeing at the other side. The second is that I’d lack patience for the detail or for long drawn-out processes in court.’
On further reflection, she reckons she would have been ‘quite a good barrister’, but insists she has ‘no regrets’.