Legal Hackette Lunches with Sir Henry Brooke

80ffb82e2b62fa9c35c88cb9f7e361ca_400x400A former Vice President of the Court of Appeal (Civil Division), retired mediator, and tweeter muses on the biggest disappointment of his career, and whether we can afford the common law system.

I meet the delightful Sir Henry Brooke at his Fountain Court Chambers, nestled discretely in London’s Temple.

Despite having been retired for nine years and stating several times how, at his wife’s insistence, he is trying to do less, he remains actively involved in overseas judicial training and several charities and NGOs, including the Public Law Project and the Prisoners of Conscience Appeal Trust.

His parents were Conservative politicians, Henry Brooke, Baron Brooke of Cumnor and Barbara Brooke, Baroness Brooke of Ystradfellte, and his older brother is another Conservative politician, Peter Brooke, Baron Brooke of Sutton Mandeville.

Despite this pedigree, there were no lawyers in his family, and he fell into law while thinking what to do with himself after completing National Service and a classics degree at Balliol College, Oxford.

‘I knew Tom Bingham (former Master of the Rolls and Lord Chief Justice, Lord Bingham) as a friend of my brother’s. He had gone to the bar with a history degree, so I went to see him. He introduced me to his former pupil master Owen Stable — I spent an evening with him and by the end of it, he’d offered me a pupillage in 3 years’ time..

‘I’m afraid that’s how things were done in those days’.

In fact, he became the pupil of Peter Webster and, after being called to the bar in 1963, he thought he’d give it a try.

‘If it didn’t work after five years, I’d do something else. But by that stage I’d got married, had two children and a mortgage and it wasn’t sensible to give it up’.

Says Brooke: ‘Although I’ve had a love/hate relationship with the bar, I think it’s probably been more love than hate’.

In the decade before his arrival at the bar, more people were leaving than joining. But the tide changed just before his arrival, due to the advent of legal aid, particularly criminal legal aid.

‘We did a lot of legal aid work and were paid the market rate less 10%, which was the contribution barristers and solicitors made to the scheme. It provided small but interesting work for beginners, which hadn’t been available before,’ he recalls.

Diversity is an issue that Brooke felt strongly about while in practice, and something he retains a keen interest in. He led the Bar Council on race relations, chairing its professional standards committee in 1987-1988 and, as a High Court judge, chaired its race relations committee in 1989-1991. His committee’s recommendation saw the bar appoint its first equal opportunities consultant, which led to the appointment of two equal opportunities officers a year later, under the chairmanship of the late Anthony Scrivener QC.

Brooke was also inaugural chair of the Ethnic Minorities Advisory Committee of the Judicial Studies Board (1991–1994), which introduced diversity training into the Board’s training programmes.

When he joined the bar, he recalls, it was a small profession — around 3,000. ‘It was heavily drawn from Oxford and Cambridge with a little bit from different parts of London University and elsewhere. One’s career depended fairly heavily on the links that one obtained at the start through one’s Oxford and Cambridge Colleges’.

‘It was a very slow-moving, traditional, self-confident profession. And like all traditional, self-confident professions, not always good at looking outwards and seeing itself as others see it’.

One serious problem, he notes, was how the Inns of Court treated overseas students drawn from the emerging countries of the Commonwealth – taking fees from hundreds of them and allowing them to retake the bar exams any number of times, but without giving them any significant support throughout their studies.

Lord Denning, he recounts, was shocked by the extent of the problem when told by overseas barristers and judges: ‘We remain very fond of your country, despite the way we were treated when we were bar students.’

With Brooke’s help Denning succeeded in getting each of the Inns, some of them reluctantly, to set up a residential weekend at Cumberland Lodge during 1962 to assist overseas students. And, notes Brooke, the Inns have continued to be active in supporting student barristers from wherever they hail.

There was also ‘serious discrimination against women’. ‘If you look at chambers in 1970 you will find very few women’.

‘I remember in the early 1970s being told that somebody had been offered pupillage by a good set of chambers in the Temple, but she needed to understand that it was chambers policy not to accept women tenants’.

His own set accepted its first woman tenant in 1978. ‘She had a 2:1 from Girton College, Cambridge and was the daughter of a High Court judge in Hong Kong and she couldn’t find a place in chambers anywhere – we eventually took her in.’

She subsequently became the chairman of the bar in Hong Kong, he recalls.

Brooke admits to being ‘disappointed’ with the slow pace of change with regards diversity — in relation to women, ethnicity and socio-economic background — and is ‘extremely worried’ about the effect of the slashing of legal aid on new entrants.

‘Things haven’t moved as quickly as I would have liked. It’s a bit like what the Red Queen said in Alice – one’s got to move extremely fast to stay in the same place’.

And, he adds, ‘it is an effort to keep things moving’.

‘One’s got to have political leadership, research, money and a willingness to go on and on and on proselytising about the problem and explaining the hang-ups which are preventing greater movement.’

It’s not that there is much deliberate discrimination; rather he suggests, it is unconscious. ‘People are comfortable with their own kind — whether they are white men, white women, black men, Asian women or whatever — that’s just part of the human predicament’.

He is not in favour of quotas to increase the pace of change, stating ‘quotas don’t work and they put people’s backs up’.

‘There is masses of American experience. If you get someone who is good, who feels that they have been deprived of opportunity when they see somebody who is significantly less talented than they are being given the job they hoped for, then you are going to get people’s backs up, and that’s going to put the cause of improving diversity backwards rather than forwards’.

Brooke’s assessment of the Proudman/Carter-Silk social media storm: ‘He [Carter-Silk] was pretty silly and if people, particularly the young [Proudman], get angry and go over the top, well good luck to them, if they are thick skinned enough to take what is likely to come their way’.

Technology is another issue that was close to his heart. The 79-year-old, who tweets from the handle @HenryBrooke1, embraced and championed the use of technology at the bar and within the judiciary.

As a barrister he chaired the bar’s first Computer Committee in 1985–1986 and was a founder member of the Information Technology and the Courts Committee. And from 2001-4 he was judge in charge of modernisation of the courts.

‘My biggest disappointment in my life was on the 15th July 2002 when the government refused to back the plans for modernisation of the civil and family courts’.

His committee’s work had the backing of Michael Wills, the junior minister in the then Lord Chancellor’s Department, the head of the courts service and the entire judiciary but, he laments, there was no new money available from the Treasury.

‘We had got plans afoot to put into action what they are talking about doing now, 13 years later. A huge amount of damage has been done because of that decision. It was absolutely devastating.’

Explains an exasperated Brooke: ‘It all goes back to the Treasury dogma of full costs recovery.

‘Because we don’t have a written constitution, there’s no constitutional right of access to the court spelt out. So the Treasury, going back to Victorian days, has always seen justice as something that, if provided by government, should be paid for in full by the persons receiving it.’

It is, he adds, difficult to demonstrate that if you enable judges to work more efficiently, they will be more productive and fewer would be needed.

‘The then [Labour] government was extremely keen to spend a lot more money on health and education. Now health and education are seen as protected elements of government spending and justice isn’t — and justice has suffered as a result.

‘It’s all down to the Treasury; it’s not the fault of luckless ministers in charge of justice. Although I disagreed very strongly with a lot of what [former Lord Chancellor] Chris Grayling was doing, he was simply complying with Treasury requirements, which were based on Treasury dogma.

‘There is no other country in the world that tries to produce justice in the civil and family courts on the basis of full costs recovery. Nobody else tries to make the customer pay for the whole thing, let alone over the top, which is what is going on at the moment’.

As a whole, Brooke reckons judges are comfortable with IT. ‘They are forced to be, so far as access to case law and statutes are concerned because of the slashing of the library budget’.

It was, he explains, the advent of the Human Rights Act that inclined more judges to explore the possibilities of IT in order to keep abreast of the decisions in relation to it.

Brooke, a fan of the Act, nonetheless flagged up, in advance of its passing, the potential danger that the judges would be criticised for making decisions on matters which had historically been seen to be political.

‘It’s been a pity that some politicians encouraged the right wing press in its antipathy to the Act,’ he says, but notes they have gone quieter since it is ‘becoming more apparent that, apart from some decisions on Article 8, there is very little in it to which they can reasonably take exception — apart from the rare decision by Strasbourg with which they disagree – a prisoner’s right to vote is the obvious example’.

So far as the case of radical cleric Abu Qatada, who for years fought against his deportation from the UK to Jordan, is concerned, Brooke insists that Article 3 of the Human Rights Convention merely applied the same requirements against sending someone to a country where there is a substantial risk of torture, as other international conventions.

And the saga, he says, has led to a great improvement in international law. ‘It was the latest Strasbourg decision which led to the courts of Jordan straightening its affairs out and refusing to accept evidence where there was a significant risk that the witness had been tortured’.

On the consequences of withdrawal from the European Convention on Human Rights, the former lord justice disagrees with Supreme Court justice, Lord Sumption.

‘He said that even if we have to leave the ECHR and the Council of Europe, it would be much better to have a British Bill of Rights even if that means we have less influence in showing other countries what a rights based system of law is concerned with.

‘But I’ve spent a lot of my time since my retirement in Eastern Europe and the work that I and others do out there would be significantly damaged if we withdrew from the Council of Europe, which is the logical consequence of what some of the ideas about the British Bill of Rights would lead us to’.

But, he adds, it remains to be seen what is proposed in the government’s consultation, expected later this autumn.

Looking to the future, Brooke would like to see ‘a greater spreading of what the Americans call corporate social responsibility’ across the legal profession, and particularly at the bar.

‘There are only three sets of chambers who go out of their way to make money available for NGOs working in interesting areas of what one might broadly call the human rights field.

‘Other sets of chambers say they are not willing or mandated to spend members’ money, although they seem perfectly happy to spend their members’ money funding professorial chairs at Oxbridge colleges in their name’.

There is, he suggests, a lot that could be done to ameliorate the shortcomings that have emerged now that the public sector is no longer willing for taxpayers’ money to be spent on legal provision.

‘That brings me on to another hobbyhorse – we have a very expensive system of law. If I were clever enough, I would write a long article called “Can we afford the common law?”

‘It would make me as unpopular as when I was campaigning for other not very popular causes’.

But, he states: ‘If you get five law lords all opining on interesting changes in the law, all saying different things and then you’re advising on the law with a low budget or no budget at all, how on earth do you cope?’

There is, he accepts, ‘no easy alternative’, because the alternative is a codified system of law and there are ‘huge disadvantages’ with that.

‘It is part of the Anglo Saxon make-up — we have always been pretty relaxed about having a system of law in which people can argue forever in fighting for justice, rather than getting their answer off the peg.

‘But getting your answer off a peg is greatly cheaper, especially if you’re also trying to run a criminal justice system that involves a jury system.

‘I’m not suggesting abolishing the jury system, but all these things in the present system of law are expensive and much more expensive than their equivalent on the continent’.

On that provocative slice of food for thought, we wander over to the Inner Temple’s Pegasus Bar for a light salmon lunch, washed down with a glass of crisp white wine.

And once again I come away with new reading matter — a copy of Now and Then: A Celebration of Sweet & Maxwell’s Bicentenary – a collection of essays about the future of the law, signed by my lunch companion.

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