The Big Interview: Dinah Rose QC

Dinah Rose’s career as a barrister got off to an inauspicious start when she began her pupillage four days late. As we tuck into our lunch at Blackstone Chambers – the set Rose joined in 1989 and has been with ever since – she recalls her first day: a mooting tour in America with some Gray’s Inn students had postponed Rose's start date, and upon re-entry into the country she found herself “in a confused state of exhaustion” and heavily jet-lagged. “My pupil-mistress grabbed me and said ‘we’re in con with Stanley Brodie QC and you need to brush your hair.’ Those were her first words to me – which were not particularly encouraging. She had a point, as I did look like something the cat had dragged in, so she offered me a comb and took me by the scruff of the neck into the ladies.”

So began a career that Rose hadn’t always anticipated while she was at Magdalen College, Oxford, reading Modern History. “I was in my second year,” she says, “and I had decided that the Bar was too difficult for women.” She went to see a careers advisor, who after about ten minutes convinced her that becoming a solicitor was not what she wanted to do at all, and that a life in chambers was the right course to take. “I said, ‘It’s really hard!’ and he said, ‘Don’t be ridiculous, you’ve got to give it a go'.”

Reinvigorated by this pep-talk, Rose went on to take her diploma in law and set about looking for mini-pupillages in 1988. She obtained one at a leading commercial set, but once found herself asked to ‘be mother’ and pour tea for clients during a consultation. Recalling this moment, she smiles: “At that time, particularly in commercial chambers, they typically had one or two women, normally very junior, and there was a real perception that virtually all of the top advocates were men.”

In taking up a pupillage at Blackstone Chambers – or 2 Hare Court as it was known in 1989 – Rose joined an “unusual” set in that it was “a chambers that already had a number of women in it and not only women that were just starting out, but women who were demonstrably doing really well.” The presence of successful QC Barbara Dohmann and of Presiley Baxendale (Rose’s pupil-mistress) confirmed the potential for progression at this particular set.

 

Blackstone Chambers, Middle Temple

“The Bar should be an excellent profession for women,” says Rose. She compares it to the career paths of female solicitors in big City law firms, where “there is an enormous culture of long hours and a rigid career structure geared around applying for partnership at a time when most women want to have kids.” Her self-employed status has allowed more flexibility when it comes to deciding when and how much to work, meaning that “you have control, and you’re not at the mercy of an employer whose decisions on promotion are going to be affected by whether or not you have been on maternity leave.” There’s another very crucial element: some areas of the Bar pay very well, making childcare a much more viable option.

“It’s an impossible question: what would my career be like if I were a man?”

I ask whether or not being a woman has helped Rose's career. It gives a “slight advantage,” she thinks, “as people don’t necessarily see you coming, and I think that certainly early on there may have been people that slightly underestimated me – witnesses and so on. If you are a bit out of the ordinary then people will remember you better, male judges will remember you better.”

But are women sometimes remembered for all the wrong reasons? I use the examples of barristers Constance Briscoe and Aisha Bijlani, both of whom have featured in the press not for their legal skills and acumen, but for the more salacious aspects of their careers and private lives. Moreover, Rose has had her own brushes with the press, notably back in 2008 when the Daily Mail portrayed her as launching a ‘stinging attack’ on the family of barrister Mark Saunders, who had been shot by police. “I don’t know,” says Rose, “I think things like ‘sexy judge’ always make a good story whether the judge is male or female. Those stories will always get purchased.” Certainly, you don't have to look very far before stumbling across salacious stories of male judges and their extra-marital misdemeanors. Rose does raise the point, however, that there is a tendency to put female barristers “in a box where they are either a femme fatale or a ball-breaker.”

What's said in and around the courtroom is perhaps a more troubling concern. “I’ve heard things said about some very competent women judges that I don’t think I’ve heard said about men. You get circumstances where male barristers are readier to accuse a female judge of being stupid or over-promoted – that kind of thing.” It’s still unusual for Rose to appear in front of a female judge (“maybe one time in ten”), which has a lasting impact on the “way you are perceived and the way you perceive yourself, because you are always ‘other’.” On those rare occasions when there's a woman at the bench, Rose has the chance to “suddenly just relax a bit and think, ‘Oh, this is what it must be like for the guys all the time!’” She laughs, pauses, and then says, “It’s an impossible question: what would my career have been like if I were a man? I don’t know.”

One thing Rose has no need to speculate on is how “stressful and high-pressure” the job can be. “If you are involved in a long trial then you can’t do anything else really, so you need a supportive structure of some kind.” She tells me about a particularly rough patch, when a case kept her away from home for six weeks, consigning her to a hotel room with a mountain of paperwork and no one to talk to.

Fortunately, Rose has those support structures in place. The first is Blackstone itself, a set which has a reputation for retaining a loyal group of members, most of whom have remained there for their entire careers. “People stay here for often 40 years or more. Beverley Lang went on the bench last year, but she is the only person in living memory to have done so.”

Rose is no exception to the rule, and she likes the great sense of continuity at the set, which engenders close relationships. “Being someone’s pupil-mistress is a bit like being their mum, which means that their pupil is basically your grandchild – it’s a family environment, with aunts, uncles and mad granddads.” With this familial atmosphere around her, Blackstone has been “a safe place where you can let rip if you’ve had a terrible day, or equally open a bottle of champagne if you want to celebrate.”

Rose identifies her husband, former TV producer Peter Kessler, as another vital source of support. In 2005, after the couple moved house and left a nanny behind, he decided to give up work in order to help raise the couple’s two young children. “He just lifted a huge burden of anxiety from me and really liberated me to focus on my career, and that’s an enormous gift to give someone.” When asked what advice she has for aspiring female barristers, Rose jokes: “Marry a house-husband! A 1950s-style wife – someone to have dinner on the table!” Should women steer clear of male barristers then? “Marrying a male barrister is a disaster,” she quickly responds, still laughing. “They’ll always think that their cases are more important than yours and they’ll earn too much money and persuade you to give it up or go part-time.”

Jokes aside, Rose has noticed that many of the successful women she has known at the Bar have also been the primary breadwinners in their household. She tells me that having the pressure of supporting a family helps to propel barristers through the tribulations of their early career, a potentially uninspiring period when “you have to get up very early and get on a train to some godforsaken court in some miserable place to represent a drug addict – that’s not easy. That’s hard, stressful and isolating. Most of the women I know that have succeeded have done so because they had no choice. They had a family relying on them at home.”

Rose is talking from personal experience, and dates the take-off of her own career to the year that her husband decided to stay at home. Just one year later, in 2006, she made silk, an achievement which confirmed her status as a leading barrister, but one that also involved a week’s worth of some pretty arduous form-filling. “I mean a week,” she reiterates several times, the horror of the application process returning to her. “I don’t mean that I had the form on my desk for a week. I mean it was a full-time, every-day-for-a-week endeavour. It’s a nightmare!” The hard part, she asserts, is finding 12 judicial referees from the preceding two years, but there’s also the very jarring experience of self-assessment to contend with: “It’s something barristers have no experience of – that whole process of presenting yourself that way, like a CV. It doesn’t fit with the way most barristers are!”

“The current law is sufficient to protect national security.”

Prior to her elevation, Rose started out in employment and discrimination law, areas which she “fell into partly by accident.” The words ‘human rights barrister’ didn’t exist back in the late Eighties, and the ubiquitous ideal those words conjure up (mostly in the form of Bridget Jones' object of desire, Mark Darcy) was far away from entering the popular imagination. At that time, the stage for human rights law was being set by people like Anthony Lester QC (now Lord Lester of Herne Hill), who was “arguing points about the European Convention on Human Rights in cases like Spycatcher and Brind.” There was still a lot of public law, but even that area of the Bar was far smaller than it is now.

Many of Rose’s early cases revolved around issues of sex discrimination (an area again initiated by Lester, who was behind the Sex Discrimination Act of 1975). Her first case in 1990 involved fighting against Eastleigh Borough Council, who were allowing women over 60 to use a swimming pool for free, but not men, as they had not yet reached retirement age.

Skipping forward a few years, Rose arrives at another memorable sex discrimination case, representing the female boxer Jane Couch. Couch wanted to box professionally, but at that time (1997), the British Boxing Board of Control would not license women to do so. Their defence against Couch’s claim of sex discrimination was that women were too emotionally unstable to box professionally, precisely because they menstruate. At the employment tribunal where the case was heard, Rose cross-examined the Board’s expert witness: a doctor.

“I said, 'So women are emotionally unstable because they menstruate?' He said, 'Yes they are.' I followed with, ‘So it would be a bad idea then to put a woman into any kind of responsible position, say, an airline pilot, a very bad idea?' He goes, 'Yes that would be a very bad idea.' Then I say, 'And obviously it would be a very dangerous and a bad idea to leave a woman alone in charge of small children?' And he says, 'Yes, yes, yes,' and this laughter just erupts due to the ludicrousness of it. So yes, we won that case.”

With the passing of the Human Rights Act in 1998, Rose's experience with discrimination claims meant that she was ideally positioned to take on cases related to this emerging area of law: “It was a logical starting point because the right not to suffer discrimination is one of those fundamental rights.” One of the most notable – and controversial – matters Rose worked on involved the extraordinary rendition and torture of Binyam Mohamed, a UK resident detained by the US in Guantanamo Bay between 2004 and 2009. Rose classifies rendition as a euphemism for “abduction or kidnap – it is kidnapping someone across an international frontier.”

The case came to a head when the Court of Appeal rejected requests made by David Miliband (then foreign secretary) to censor material in the judgement which flagged MI5's complicity in the torture of Mohamed. The government subsequently settled out of court to avoid having to reveal sensitive information, but by that point certain details had already been made public. Mohamed was eventually awarded £1m in compensation.

The Mohamed case has left quite a legacy, though. Rose says that the court's order to disclose information during the case “upset the Americans,” and other reports suggested that intelligence-sharing between the two countries had been jeopardised. However, the case could provoke more sinister consequences, related to the government's Justice and Security Bill, which has recently gone before Parliament. In it, the government seeks to extend what it calls closed material procedures (CMPs) to ordinary civil claims for damages, a request spurred on in part by the Mohamed case. CMPs – or 'secret courts' as they have also been dubbed – could allow ministers, instead of judges, to control how evidence is used in courts, in the interests of national security.

Rose, unsurprisingly, is a vehement critic of the bill. “The intelligence agencies have been exposed to scrutiny in a way that they found very uncomfortable. I think that there is some frantic pressurising going on in Whitehall to prevent that from continuing. My own view is that the current law is sufficient to protect national security and that the laws of public interest immunity are perfectly adequate for the task.”

Concerns about the implementation of secret courts aside, there’s also the unsettling prospect of what government cuts to the legal profession will do to the Bar. “There’s certainly going to be a lot of problems,” says Rose. “Legal aid is being massively cut and there will be huge problems for people who can’t get a lawyer to represent them.” She goes on to describe the expense and delay caused by having litigants in person, but also the difficulties faced by those barristers operating in the family and crime sectors, who are now finding it much harder to earn a living from legal-aided work. On top of this are the reforms that are being introduced – via the Jackson Report – to cost recovery, which will “basically kill Conditional Fee Agreements. It seems strange to me to simultaneously destroy legal aid and to get rid of an alternative source of funding. It’s very worrying.”

Does the Bar have a future then? “I think that the Bar will survive, but I think it will be a lot smaller and perhaps more specialised.” For now though, the Bar is “significantly too big.” Rose estimates that it contains “something like 15,000 barristers holding a practising certificate, which is about twice the number there were when I came to the Bar 23 years ago. That’s a massive increase. It’s unsustainable. Times are going to get much harder for the Bar.”

 

This feature was first published in our December 2012 newsletter.

It was written and researched by Chambers' Paul Rance.