Interview with Baroness Blackstone

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Grania Langdon-Down meets Baroness Blackstone who brings a reputation for blunt speaking from her formidable 50 year-plus career in education, politics and public service to her new role as chair of the Bar Standards Board


Google Tessa Blackstone – Baroness Blackstone of Stoke Newington – and your CV runs from lecturer at the London School of Economics, to deputy education officer at the Inner London Education Authority, to Labour peer, Master of Birkbeck College, education and then arts minister in the Blair government, vice chancellor of Greenwich University, while chairing arts and architecture trusts. Which roles have you enjoyed most?

I am a workaholic and I have enjoyed all my jobs. I loved being a vice chancellor. It’s the most interesting and challenging work because you are not at the top of a hierarchy. You are working with large group of individuals and you have to learn how to promote your vision and encourage everyone to sign up to it. You have to be persuasive – you can’t do it from a command, top-down position in the way the civil service or army work.

When you were Master of Birkbeck College (from 1987-97), you didn’t take a pay rise for several years because the university was struggling financially. What do you think of the current row over vice chancellors’ pay?

I’m shocked at what those vice chancellors at the top end of the salary range are taking home. It is a job that has a lot of responsibility and contemporary universities are complex institutions. I am not suggesting they should be paid a low salary but the role also has huge rewards of a non-financial kind and I don’t think people should be earning £400,000. They should accept that the publicity surrounding all of this has damaged the university sector and be more realistic about what is appropriate – and that has to be a lot closer to what their academic staff are earning.

As education minister (1997-2001) you introduced the first tuition fees of £1,000 a year and didn’t expect the amount to increase. What do you think of the current system?

Being a minister was an enormous privilege. In 1997, after 18 years of Conservative rule, it was very exciting to be part of a new Labour government – ‘new’ with small n – with lots of ideas and with education the top priority.

I never wanted fees to go in the way they have gone. When we introduced fees in 1998, they were means tested and paid upfront rather than as loans. The amount covered about 25% of the average cost of a course and the rest continued to be paid for by the tax payer. The fees then went up to £3,000 and payments were deferred through a loan structure. I could see where that was coming from but to go from £3,000 to £9,000 was completely wrong and I was totally opposed to that and said so at the time.

Now the whole system is beginning to crack. Half that money won’t get paid back and it is not a good system.

You once described yourself as ‘vintage Labour’ rather than new or old Labour. What did you mean and how does that sit with the current Labour party?

It was a joke against myself for having been in the Labour party since I was about 19. I never completely aligned myself with either old or new Labour so I was just trying to find another phrase. As someone who feels very strongly that Labour has to attract a wide range of people – which is where Blair had some genius – you have to reach out to middle England, for want of a better term. But you also have to be true to your origins and your commitment to people from low income families struggling to get jobs and survive in age of austerity. That is a difficult stretch but it can be done as 1997-2010 indicated. I am not sure we are quite there at the moment. I think that Corbyn has some valuable qualities – he is attractive to a lot of young people. He comes across as authentic and unpompous and with no side. But I don’t think he always gets it right by a long way.

So, what brought you to the BSB and how are you preparing for your role?

The simple answer is I was headhunted! The timing was good as I was just standing down from chairing Great Ormond Street Hospital and I wanted to take on one other big role.

I am not a lawyer. But that is actually a requirement because you are meant to be independent and not be carrying any baggage associated with being a lawyer. I am immersing myself in this world. I am learning about how the BSB works and getting to know the staff and board. I have spent time with the Inns of Court and sat in on a three-hour training course on how to treat vulnerable witnesses. I am going to spend time in many different courts to learn about the judicial system in which barristers operate – from the Old Bailey, to the Rolls Building, Wood Green Crown Court, a family court and the Appeal Court. If you don’t have a clear feel for the wider context, you aren’t going to be a very good regulator.

Baroness Deech, who chaired the BSB from 2009-2014, has argued that there are too many regulators jostling to be masters of the legal professions and the legislation needs urgent reform as it is badly crafted. What is your view?

It’s hard to look at the current structure of legal regulation and to think that we would choose to start from here. But the structure of regulation, including whether all the small regulators should be separate, is really a matter for the government to decide. What I would say is that regulating the Bar is a bit different from regulating solicitors – the Bar is still primarily a referral profession, for example, so most barristers deal with clients less directly and don’t hold client funds. So we think there will always be a need for specialist regulation of different parts of the legal profession, however that is structured.

Looking at the structure of the BSB itself, it costs barristers £439 each, compared with £202 for the Bar Council, with staffing of 81 compared with 35 at the Council. Does the BSB provide value for money?

You’re not really comparing like with like here. The Bar Council’s job is to represent and promote the Bar and ours is to regulate barristers. So they are very different tasks with very different costs. This year our direct expenditure for 2017-18 will be £5.2m and our share of the overheads and corporate provisions of the Bar Council will be £3m. So, our total cost of regulation will be £8.2m and we are responsible for regulating around 16,000 practising and 49,000 unregistered barristers. We are largely paid for from the annual practising certificate fees and, although we have a busy agenda, those fees will not be rising this year.

While our duty is to serve the public, we are very aware that we are funded by the profession, so it is vital we are cost-effective and transparent about our use of resources. Our annual business plan, published in March, explains in detail what our priorities are and how our money is spent. All our spending is carefully audited.

How do you see the relationship with the Bar?

We have to be independent and be seen to be independent. There will certainly be occasions when we do or say something that will irritate the Bar. That is the nature of the relationship. However, I am very anxious for us to work together in a way that is friendly, supportive and productive. I don’t think it will be one where we are constantly in an adversarial relationship.

The current chair of the Bar Council [Andrew Walker QC] is absolutely clear that, although he has some criticism of the Legal Services Board, he sees the importance of having an independent regulator for the Bar because it is in barristers’ interests, as well as the interests of clients and the nation. You need to have a very high quality Bar, with barristers who are respected, with the breadth of vision, the intelligence, understanding, knowledge and ability to be good advocates. If you have bad apples, you need to get them out. Any barrister working with one will want them out too as it is damaging to the profession.

With your background in education, how do you see legal education and training developing at the Bar?

Having such vast debts from undergraduate degrees is a huge problem for law students and is one of the reasons why training has to be addressed. There needs to be a system which is more efficient, where the cost is lower, perhaps with more online learning. It also needs to be a system where the pipeline for pupillage is clearer so graduates aren’t spending huge sums doing their BPTC but then don’t get a pupillage.

We expect there to be a number of pathways for training as a barrister but they all need to address this issue of affordability as well as accessibility, flexibility and maintaining high standards. The Inns of Court College of Advocacy’s proposal, for example, is to divide the training into two parts. The first would be an online course and only those who have passed that part could then apply for the second part and you’d have to pass both parts before you could begin pupillage. But the Inns argue that the first part of the course won’t be wasted – a student can decide to go on and train as a solicitor or go to work for a company or local authority.

More generally, we have reached agreement with our board that the Inns of Court will continue to play a big part in training. They will continue to be responsible for calling people to the Bar so student barristers will still need to be members and complete a number of qualifying sessions. I think the Inns are very aware of the need to reach out and they have moved away from the image of the Bar being Oxbridge, male, white.

I want us to start the reformed programme in the autumn of 2019 if we can. That depends on the progress of those devising the content of the new course but I am very confident we will be able to do it by then.

Recent changes to the BSB’s requirements that barristers undertake CPD puts more responsibility on individuals to develop their careers. Is this the right approach? Should there be a formal quality assurance or appraisal scheme?

I think it is better if we work with the Bar to encourage self-improvement rather than having prescriptive regulations which say ‘if you don’t do it, we are going to beat you up’. That isn’t a good approach.

Many barristers are self-employed, which is unusual among professionals. But that puts a lot of responsibility on them. We do require them to do CPD but they have to take personal responsibility and some are going to be better than others at doing this. I believe in life-long learning – my motto is you have to learn something new every day and that should apply to barristers too.

But we should be encouraging this to develop from below rather than imposing a formal scheme from above. At the same time, we need to set out the expectations that we have because what you learn in 2018 may not be what you need in 2028 or 2038.

There are issues around diversity across the legal profession and the judiciary. Should the BSB take a more interventionist approach or is there a danger of ‘mission creep’ into the role of the Bar Council?

My main concerns are not about the proportions of young women or black and minority ethnic (BAME) young people starting at the Bar because they are both pretty well represented. The issue is how fast they are progressing. Both are very underrepresented at the top end of the profession. This is partly due to the numbers coming in 25 years ago which were from a much smaller pool.

Those involved in the selection process at every point have to be very aware of the need to get this right. But we also have to be concerned about the attrition rates. Our job is to ask for data to be collected, to monitor it and then publish it. We expect chambers to have an equality and diversity policy – and many already do. Our role is to ask those responsible for recruitment and those responsible for mentoring and supporting members to provide a culture where both women and BAME barristers can succeed.

However, I go back to the idea of self-regulation and creating a climate where people do these things themselves rather than being subject to a top-down disciplinary approach. Where there is complete failure, there needs to be an element of naming and shaming so people are aware that they can’t ignore this issue. But I think you would be hard put to find people who say that it doesn’t matter a damn whether the people responsible for this part of our public life are all drawn from one section of society. That is no longer acceptable and I don’t think lawyers would find that acceptable either.

It is also important to monitor socio-economic backgrounds. Everything should be done to give young people the confidence that they can make it at the Bar, whatever their background – but that takes a lot of encouragement and mentoring. The role for the BSB is not to lay down instructions how to do this but to help talk through what can work and collect the data to see how we are doing.

The government rejected David Lammy’s proposal last year to set targets for the judiciary. Are you a supporter of targets?

I am not sure I am. I am a supporter of monitoring how we are getting on rather than saying our target is X. If you don’t reach it there is a hoo-hah and if you go over it, there is a danger of thinking you don’t have to do any more.

There have been recent reports about the extent of sexual harassment suffered by women barristers. What role does the BSB have in dealing with these issues?

It is the subject of the day. Sexual harassment is wholly unacceptable behaviour. But I don’t think a relatively small regulator like the BSB can be constantly trying to check up on how much is going on in chambers X or Y. What you have to do is to encourage chambers – and many do this anyway – to make it absolutely clear that this behaviour is out of the question and, if you are found out doing it, you will face the music.

This is about people misusing their power. Where it does happen, in the first instance it should be dealt with in chambers. If there is repeat misbehaviour, then it probably should be reported up to the BSB and it should become a complaint. But this is also about prevention. We have to encourage an environment where young women feel they can report it and it won’t damage their future. This is the real issue and this has to be done by chambers–that is the only way it will work.

The criminal Bar is challenging the way their legal aid fees are structured. Could that lead to regulatory issues?

I personally feel a lot of sympathy for the younger barristers at the criminal Bar who are struggling. Their levels of pay are extraordinarily low but this is a matter for the Ministry of Justice and the government to sort out. We have published guidance on our website.

In a nutshell, the position is this: if you are a barrister who has not already been instructed and you wish to refuse to work on a particular day, you are generally free to do so. But – and I’m sure this will be perfectly obvious to barristers – if you are already instructed to appear that day, or a case in which you have been instructed is subsequently listed on that day, you do need to consider your duties to the court and to your client as set out in the BSB Handbook.

As someone who will turn 76 in September, do you think judges should be forced to retire at 70?

Lowering the retirement age was a mistake. I can see why they felt that you could have too many very crotchety old judges wondering who the Beatles were. That is a caricature but we live much longer now and I don’t think there should be a cliff edge where one minute you are working 50 hour weeks and then nothing. There is also a shortage of judges, which makes it all the more sensible not to make them retire at 70. There could be some kind of review at 70 and if they have gone gaga or are very frail that will be apparent. But many are full of vim and want to go on and it is a waste of their talent and experience too.

I don’t want to retire but I recognise there will come a time when no one will want to employ me!

In your early career, you were tagged as a ‘dark-eyed evil genius’. What prompted that?

I have had a strange career. When I was a young member of the Central Policy Review staff, a government think tank in the mid-late 70s, we were asked to do an enormous piece of work reviewing all our overseas representation and how overseas policies were made in London. There was a team of us but it was the two women who got all the flak. Some wag in the Foreign Office described me as a ‘dark-eyed evil genius’ – I think that will go with me to my grave, I am afraid.

After such a varied career, what do you bring to the BSB?

I like to think I bring enthusiasm and a passion for high standards and efficiency and getting value for money out of what we do. I bring experience from other sectors but also a willingness to learn and to stand corrected if I get it wrong.

I am someone who is curious and wants to understand the world I am working in. I also want it to be fun and for all the staff to be doing a job we enjoy and find rewarding.

While it is early days, what would you like your legacy to be?

I would like to be able to say that the Bar is an even greater profession, that it is even more diverse and doing better than those other professions that these intelligent young people might have chosen.

Contributor Grania Langdon-Down is a freelance legal journalist

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Grania Langdon-Down

Grania is a freelance legal journalist. Former Press Association crime and legal affairs correspondent, Grania now writes for The Times law section, legal magazines and legal websites, including LexisNexis.