Consent – A play by Nina Raine

BenChaplinEdwardinConsentbyNinaRaine.PhotobySarahLeeThe justice system is put on trial and the foibles of criminal barristers scrutinised in Nina Raine’s new play Consent, which opened at the Dorfman Theatre in London last week.

It uses the insecurities, inadequacies and infidelities of a group of fairly unlikeable middle class Londoners and the incredulity of a working class woman who says she was raped, to critique the impersonal nature of the law and its relationship with justice, and address big issues of truth, punishment, forgiveness, class, and relationships. All of which leaves the viewer pretty exhausted.

The set is minimal, with suspended lampshades giving the feeling of being in the John Lewis lighting department.

Four of the characters are criminal barristers, who on the whole do not come off well, portraying their profession as superior, arrogant workaholics with deeply dysfunctional relationships.

The question of whether they were always like that or whether a daily diet of rape, murder and violence has corroded them, is left unanswered.

Their behaviour is keenly observed in a play that has been immaculately researched. In the programme, which includes essays from Baroness Helena Kenndy, Alex McBride and Iain Morley QC, thanks are given to Matrix barrister and clerk, Jessica Jones and Alison Scanes, 7 Bedford Row’s Rachel Darby and Daniel Coombes and Helen Greenfield at Family Law in Partnership.

The characters speak of themselves as though they were their clients. ‘I’ve been raping pensionsers … I tie them up, I fuck them, and then I nick their stuff, says Jake, played by Adam James.

Two of the friends, who actually despise each other, are pitted against each other in a rape trial. ‘I raped this woman, London lady, no witnesses, she’s a bit of a drinker, so am I, her word against mine’, says Ed (Ben Chaplin) who sees his clients as an opportunity to hone his range of impressions.

Against him is the repressed and perpetually single Tim (Pip Carter), who read classics at university. For all his book-learning, he is hopelessly awkward when it comes to explaining the trial process to the frightened and angry complainant Gayle, played with real emotion by Heather Craney.

PipCarterTimHeatherCraneyGayleinConsentbyNinaRaine2She is baffled by the niceties of the process that mean her alleged rapist has a lawyer, but she does not, and that evidence of her mental health issues can be used to undermine her, while the defendant’s previous convictions cannot go before the jury.

Her question to the prosecutor ‘Are you on my side?’ turns to the plaintiff cry ‘But it happened to me’, when told she is merely a witness in the Crown’s case.

Later, she turns up at uninvited at Ed and Kitty’s (Anna Maxwell Martin) Christmas drinks party, indicting the ‘fucking useless’ prosecutor whom she only met five minutes before the trial. Her verdict on the system in which she watches two barristers ‘fight it out’ is that it’s a ‘fucking mess’.

AscenefromConsentbyNinaRaine.PhotographerSarahLeeDefending the process, Ed trots out the stock justification that ‘we presume innocence, because better a guilty man goes free than an innocent go to jail’.

Warming to this theme, he tells her: ‘The law’s not going to work according to your emotions, Gayle, because it’s got to be dispassionate, it’s got to be impersonal ‘.. it’s not about satisfying your personal sense of outrage, because if it was, it wouldn’t be fair and that is the whole fucking point’.

The cynic’s view of the barrister is given in two lines – Kitty tells her husband Ed ‘you tease people for a living’ and Rachel, vexed by Jake’s dishonesty, screeches ‘He says he’s a terrible liar. That’s a lie. He does it for a living’.

While Tim and Ed give a master class in the art of advocacy to their dippy actress chum Zara (Daisy Haggard), who is auditioning for the part of a criminal barrister with no home life, who speaks Mandarin and rollerblades.

They explain that advocacy is basically ‘a fight between two opposing narratives’ in which the defence’s role is to ‘pick your way through and convince the jury of one simple line’.

After the nice open questions by the crown to set the narrative, the defence ‘fuck up that narrative,’ bending perceptions to put an idea in the jury’s head.

As their oratory turns more personal and bitter, they deliver more tips:

  • Use spectacles –‘ Pick ’em up, put ’em down, they engage the listener when you’re about to speak…And they make you look cleverer’
  • Don’t be afraid of silence. Use it to create tension
  • Tell the witness they disagree with you, to close them down and box them in
  • get a rhythm going, play dirty, don’t look at the witness but straight ahead, and bounce your case off them
  • create an embarrassment or look for the ‘leaver’ For example:

EDWARD: Do you find my wife attractive, Tim?

TIM: No

EDWARD: You’re saying my wife is not attractive, am I right?

TIM: No.

EDWARD: So she is an attractive woman, my wife, you would say, Tim?

TIM: Yes.

EDWARD: And yet you don’t find her attractive, is that right? You said earlier my wife is an attractive woman. Then you say you don’t find her attractive. Which is the lie?

Ed explains: ‘It’s a sort of trapdoor. You ring-fence around, locking off escape routes. And then you pull the lever. You drive an unanswerable rhetorical wedge between the answers’.

  • And, ‘when you don’t know what the hell else to do’, ‘repeat their answer slowly, like they’ve fucked up, and let it hang in the air’.

As the play goes on, the characters’ seemingly perfect lives crumble, exposing their dysfunctional relationships and hidden grievances. In their personal lives, the pedantic legal language and adversarial techniques of the courtroom prove inadequate.

When Edward is accused of marital rape, he becomes as jabbering and hesitant, under the cross examination of his friends as any defendant in the dock, proffering similar defences – ‘I thought I was showing passion’; ‘she said no a couple of times, but so did I’.

Sticking by her accusation, Kitty says: ‘It’s my truth’. To which her husband protests: ‘It’s not the truth.’

Attempting to placate the pair, their friend Jake (Adam James) observes: ‘There’s a world in which you’re both telling the truth. But that’s not the law. In court, your narratives are oil and water. They can never mix. One of you will win. And one of you will lose.’

AnnaMaxwellMartinKittyBenChaplinEdwardHeatherCraneyLaurainConsentbyNinaRaine.PhotographerSarahLeeIt is Kitty’s turn to be exasperated by the law, this time the family justice system, when she is advised that the alleged rape is not relevant to residence proceedings because rape. Like pornography and prostitutes, is ‘not damaging to the child’.

Ed’s concession that ‘technically’ he raped her, poses the question of whether there can be degrees of rape.

Consent is a play very much de nos jours, touching on current polemics and trends, with wit and comedy moments, mostly of a sexual nature.

The somewhat clichéd line from Kitty that ‘You can’t legislate for human behaviour’ sums up the tension at its heart.

Consent runs until 17th May

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Legal Hackette Lunches with Sir Oliver Popplewell

Sir_Oliver_PopplewellOver butterfly prawns and stir fried duck at Fleet Street’s Wig & Pen, the former High Court judge who presided over the Jonathan Aitken and Mohammed Fayed libel actions, talks about the Aphrodisiac of Power, judicial appointments, being a mature student, and that ‘lunchbox’ question.

Sir Oliver Bury Popplewell, the son of a civil servant, was educated at Charterhouse School and Queen’s College, Cambridge. Called to the Bar in 1951, he took silk in 1969 and served as a High Court judge from 1983 to 2003, taking charge of the defamation list.

A nifty right-handed batsman and former president of the MCC, he remains a member of London’s Brick Court Chambers. He is a regular visitor to The Strand area of legal London, where his wife since 2008, Dame Elizabeth Gloster sits as a Court of Appeal judge. Law, it seems, runs in the family – his son Andrew is a High Court judge and his grandson fancies a career at the Bar.

He is the author of four books, two of which are about himself – Benchmark and Hallmark. ‘The great thing about writing an autobiography is that you can write what you like,’ he quips.

His most recent, The Aphrodisiac of Power, chronicles the affairs of a motley selection of politicians, media magnates and crooks, from Lloyd George and Edward VIII to Beaverbrook, Maundy Gregory and JFK. It looks at how they wield their power and how their hubris frequently leads to their downfall.

His inspiration for the book, which is cloaked in a bright red jacket, came from an article penned by Matthew Parris in The Spectator and David Owen’s book The Hubris Syndrome: Bush, Blair & the Intoxication of Power.

In The pathology of the politician, Parris wrote ‘power is indeed an aphrodisiac: but for the powerful, for the predator rather than his prey’.

Popplewell’s book, mostly about politicians and their mistresses, looks at where the power lay in their relationships and why men risked much for love.

He rejects the suggestion that High Court judges wield power. ‘They just try to decide things as best they can in accordance with the law,’ he says.

To my enquiry about who was the predator and who the prey when it came to his relationship with his now wife, who famously left her QC husband of 30 years, Stanley Brodie, for Popplewell, he replies with a smile: ‘I always say she chased me, but I think it was mutual’.

Contrasting his entry to the Bar with today’s competitive entry process, he says: ‘You could get into chambers, but there wasn’t any work, so we sat about earning two guineas a week.

‘You didn’t get paid on time either. When I became a judge I had fees out-standing from about 30 or 40 years earlier’.

‘I started very slowly at the Bar and never had a very big practice,’ he states – his work was mostly personal injury and general practice on circuit, something he enjoyed. ‘One became the barrister to certain solicitors on circuit. In those days it was good fun – the Oxford circuit was small and everyone knew each other’.

Now, he says: ‘The Bar is rather sad in many ways. The criminal Bar has really suffered, as have other areas of publicly funded law, as a result of the reduction in legal aid and so there isn’t so much work around.”

Nonetheless, he recommends it as a career, having never wanted to do anything else: ‘You’ve got to be lucky and you’ve got to be determined. When you win a case it’s marvellous and when you lose, it’s terrible’.

He and his first wife Margaret, who died in 2001, were chums with the parents of comedian and author Stephen Fry. In 1975 he was a character witness for the young Fry, in defence of a charge of credit card fraud. And when Fry went awol during the West End production of Cell Mates, it was to the Popplewells’ Norfolk cottage that he fled.

On the Bench, he says: ‘I thoroughly enjoyed being a judge. At the Bar you got led by a whole lot of leaders who you didn’t think were any good, so eventually you took silk, and then you appeared in some cases where you didn’t think the judge was very good…. So you felt that you had to progress!’

Appointed long before the Judicial Appointments Commission came into being, he recounts his tap on the shoulder moment, which came following a building dispute that had gone all the way to the House of Lords.

‘When they came to give judgment, one of the Law Lords repeated my written submissions. The next thing I found was a message in my chambers’ cubby hole that the Lord Chancellor’s office had been trying to get hold of me.

‘I’d been on circuit and got back to chambers on Friday. I rang his clerk, who asked if I could go down that afternoon. I had no idea what was in the wind, so I said “actually I’ve got a chambers party at 4 o’clock”.’

The clerk suggested he attend before the party, which he duly did. Much to his surprise he was offered an appointment to the High Court bench. He recalls: ‘Quintin Hogg said “I don’t know anything about you, but you’ve got good reports. When can you start? Have you outstanding work?”

‘I said “no”. He said “can you start on Monday?” to which Popplewell replied that he could.

‘That was just how it was done,’ he says – ‘Someone from the House of Lords had obviously recommended me’. And he reckons, it is not a bad way of doing things. ‘No system is perfect, but the view then was, if you had been at the Bar for 30 years, everyone knew you and knew if you would make a good judge or not’.

He is not a fan of the current process, which involves extensive written applications and interviews by a panel, including lay people. ‘It’s meant to be transparent, but the truth is nobody really knows why they don’t get appointed and rejection can be harder to face when you have wound yourself up to apply and gone through a tough interview process’.

The need for increasing diversity in the senior profession and on the Bench, he agrees is an issue that needs to be cracked. While he says there was, in the past, outright discrimination, he does not think that there is now.

Rather, he suggests: ‘The real problem for women is that if you have a family it’s very difficult to keep your practice going if you take extended periods of time off. You can delegate care of your children to others, if you can afford it, but if you’re away for five years, realistically you have to start all over again.’

For women looking to the Bench, the requirement to sit on circuit, he says may put off many able candidates because of family responsibilities. Turning to the vacancies at the High Court, he says the pool of sufficiently senior women, who actually choose to apply for appointment, appears to be small. “So there needs to be a real initiative to persuade women practitioners to consider the possibility of a judicial career and to apply.”

In any event, he adds the reduced pensions, as well as the application process, can put both sexes off applying.

‘I doubt whether I’d apply now. It’s meant to be secret, but if word got out that you’d applied – to be a QC who has failed to be appointed …’ he trails off at the fear of it.

One of the highlights of his career was presiding over Jonathan Aitken’s action against The Guardian and Granada TV. ‘I found it absolutely riveting. He was a very impressive figure. ‘I think, truth be told, he’d had a great row with the press. He’d been a stringer in Nigeria and was thought to have ratted on a story. Then, when in government, he arranged a great arms deal with the Saudis and was attacked by the press, The Guardian in particular, and I think he just got fed up’.

Aitken, then John Major’s Minister of State for Defence Procurement, had famously gone to Paris; he claimed it was to spend the weekend with his wife and daughter, not to meet business associates of the Saudi royal family to broker a dodgy arms deal.

Says Popplewell: ‘The Paris business was really stupid. Aitken had been to Paris for the weekend, it hadn’t gone in his diary. The Guardian asked what he’d been doing, he said something that turned out to be untrue and the pair pursued litigation by letter for about a year before the case. Aitken got more and more involved in fibs.

‘No one still quite knows what he was actually doing there’.

Popplewell was also the judge who presided over sprinter Linford Christie’s claim against John McVicar, the former armed robber turned journalist, over doping allegations. It was during that trial that he asked the question that has dogged him ever since: ‘What is Linford’s lunchbox?’

Putting his case, Popplewell says: ‘I’ve been rather unfairly pilloried. It was a jury trial in a libel action. The charge against him was that he was on drugs. In the middle of it, someone said it [Linford’s lunchbox] and the jury looked absolutely baffled.

‘So, I though somebody better say something and I asked what it meant — for the jury – I knew what it meant’.

No amount of telling he says, stops the references to it. ‘I’m sure when I die it will come out again’.

Controversy hit Popplewell in 2011 when in a letter to The Times newspaper he appeared to criticise the families of the Hillsbrough football stadium disaster calling on them to behave more like the relatives of he victims of the Bradford City disaster, the enquiry into which he had chaired.

Does he regret his words? ‘I’ve vowed I’m not mentioning Hillsbrough ever again. I won’t say anymore’.

On a more light-hearted note, Popplewell was involved in a case concerning a libel action brought by the wife of the Yorkshire Ripper, Sonia Sutcliffe, against satirical magazine Private Eye.

‘She was suing Private Eye for saying she knew about her husband’s activities. Before the trial, it published further articles repeating the allegation and adding others. The Attorney General thought it should be prosecuted for contempt of court’.

He continues: ‘Hislop came along with his backpack all packed with his pyjamas and toothbrush. I thought the whole thing was bloody nonsense. I refused to allow the prosecution to proceed. But the Crown went to the Court of Appeal, which said I had got it all wrong.

‘About once a year on Have I Got News For You, my name comes up and he [Hislop] says “that was a fine judgment”.’

In 2003, aged 76, Popplewell returned to the classroom as an undergraduate to read PPE at Harris Manchester college. ‘I was the oldest undergraduate at Oxford and caused a bit of stir’.

He was given no special favours and, like all other candidates, had to sit an entrance exam and undergo an ‘absolutely terrifying’ interview.

‘I shared a set of rooms with a nice chap – John White a retired senior partner from Cameron McKenna , who was a young 69-year-old’.

During the ‘three marvellous years’ he spent there, he was asked to stand in to cover some law lectures when the tutors went on strike ….but graciously declined.

Another time, he recalls: ‘I went to see the Principal, who was a bit older than my eldest son. He told me “the essence of this college is that we like to send our graduates out into the world to contribute to society”.

‘I told him “When I leave I’ll be 79 – I think I’ve made my contribution’.

The Disappearance of Miss Bebb — A play by Alex Giles

gwyneth-bebb-0071-1hd9z11On Sunday evening the Kalisher Trust turned the clocks backs 100 years to a time when the legal profession was exclusively male, presenting the world premier of lawyer/playwright Alex Giles’ play, The Disappearance of Miss Bebb.

It recounts the life and efforts of its pioneering eponymous heroine who, with three other women, in the test case Bebb v The Law Society sought to open the legal profession to women.

Having had their £4 fee to sit the preliminary exams returned, she sought a declaration from the court that she was a ‘person’ within the meaning of the Solicitors Act 1843, and was therefore entitled to be admitted. ‘When is a person not a person?’ asks Bebb, played with passion by Laura Main, Call the Midwife’s Sister Bernadette. Answering her own question: ‘When she’s a woman’.

thumbnail_IMG_1772The highs and lows of their campaign are interspersed by commiseratory teas at Simpsons on The Strand over ‘indifferent fruit cake’ rather than celebratory champagne and with a cameo performance by Lady Hale, playing Crystal MacMillan, activist and one of the founders of the Women’s International League for Peace and Freedom.

Bebb was the only woman in her year to read law at Oxford – a ‘wholly unsuitable subject for a young woman’ according to her hostile mother who constantly chides her for her ambition, and would rather she were more like her conventional sister who is content to be a wife, even of an abusive husband.

‘If you love the law so much, why not find a solicitor to marry. What’s wrong with being a solicitor’s wife?’ she tells her errant daughter.

Presented in the form of a radio performance, an all-star cast dressed in dinner suits or frocks, read their lines into old-fashioned microphones, complete with sounds effects of crying babies and trains created by members of the cast.

thumbnail_IMG_1769Martin Shaw, of Judge John Deed fame, plays Bebb’s barrister, Mr (later Lord) Stanley Buckmaster KC, who tries valiantly to persuade the court that just because there has never been a woman lawyer in England and Wales, the law does not prohibit it.

 thumbnail_IMG_1762The misogynistic, pompous and curmudgeonly judge, Mr Justice Joyce, was played by President of the Queen’s Division, Sir Brian Leveson. He returned to the company, having previously been called upon, post his great enquiry into the behaviour of the press, to play a newspaper seller in an Agatha Christie play.

Despite Buckamster’s efforts, Joyce rules that women were incapable of carrying out a public function in common law, a disability that must remain ‘unless and until’ Parliament changes the law.

The play also recounts the efforts of Mr (later Major) Hills MP, played by actor Hugh Dennis, to get the Sex Disqualification (Removal) Act 1919 passed by Parliament. Pre-war and with opposition from the Law Society, Bar Council and City of London Solicitors’ Company, his bill failed.

thumbnail_IMG_1770Reflecting the tone of the argument, one opponent, calling himself ‘A country Solicitor’ wrote in a letter to The Times newspaper: ‘If the Law Society does not oppose this proposal by every means in its power and block the Bill in Parliament as often as it appears, the society deserves to be wiped out of existence and a newer and more effective organization for the protection of our bread-and-butter set up in its place.

‘There is only one bright spot in the proposal to admit women as solicitors, and that is, that the public well know that there was yet a woman who could keep her mouth shut on other people’s affairs.’

After the war, once women, in the absence of male fighters, had run the family law firms, and the death of brothers meant father’s wanted to pass on their firms to their daughters, attitudes shift and the Bill finally made it onto the statute book.

It transpires that Bebb fancies life at the bar, prompting Buckmaster’s incredulous response: ‘If you think the Law Society is a tough nut to crack, the Bar Council is impregnable’.

Having been refused admission in 1918, successfully reapplies after the act, to be admitted as a student barrister at Lincoln’s Inn.

Recalling her first dinner at the Inn, Bebb utters words that surely pass the lips of all would-be barristers: ‘It was magical – one of the best days of my life. I felt a bit like a debutante enjoying my first ball’.

thumbnail_IMG_1775Bebb did fulfil her mother’s ambition for her — she married a country solicitor – Thomas Thomson, played by actor Ray Fearon. With patience, he woes the fiercely independent Bebb, giving her a brooch in the shape of the scales of justice and Mark Twain’s Personal Recollections of Joan of Arc.

Alas, she never fulfils her dream of becoming a barrister, dying aged 31 after the birth of her second daughter.

Her death certificate labelled her simply ‘wife of a solicitor’. Incensed by the final indignity served by society on her gal pal, her co-campaigner Maud Ingram amends it in thick black pen to read ‘OBE, MA Oxon, Barrister-at-law.’

thumbnail_IMG_1777One hundred years on, while many of the views expressed to exclude women may seem laughable today, the attrition rate of female lawyers, gender pay disparity and lack of senior female judges, shows there is still much for twenty-first century Bebb’s to fight for and much for the professions still to do.

Legal Hackette Lunches with Sir Paul Jenkins

VAOC0-i2_400x400Over fish and fizzy water at Lutyens on Fleet Street, the former Treasury Solicitor and head of the Government Legal Service, now at Matrix and soon to be patron of the Public Law Project and treasurer of Middle Temple, discusses his Brexit blues, prime ministers and his Leveson claim to fame, and defends control orders.

Sir Paul Jenkins was in sombre mood when I met him, minutes after Sir Tim Barrow had hand delivered Theresa May’s letter to Donald Tusk, firing the UK’s Brexit starting gun.

A consummate Europhile, as a schoolboy he belonged to the Young European League and since 2009 he has been in a civil partnership with a Dane – now one of Theresa May’s ‘bargaining chips,’ he notes.

Having worked at the heart of Brussels, he says: ‘I didn’t have to spend very long there before I slightly fell more in love with the project, because it just makes sense. It’s all terribly sad and a dreadful mistake.’

Jenkins joined the Government Legal Service in 1979 and for eight years, from 2006-14, was the most senior lawyer in Whitehall. Out of government, safely ensconced at London’s Matrix Chambers, his advice to Mrs May as she seeks to steer the UK through the choppy Brexit waters is to ‘start managing-down the expectations of her Euroscpetic right.’

‘If she doesn’t – and if she carries on allowing them to believe that we are going to leave the jurisdiction of the European Court of Justice (ECJ) totally and utterly, have tight controls on immigration, and have nothing to do with the customs union, we will get the hardest of hard Brexits — and that will be catastrophic.’

Still relatively new to the office of PM, he says, the party won’t want to kick her out yet, so she needs to start standing up to them.

Language

Watch out over the next year, he says, for a ‘softening of language’. Something he detected in the speech May gave to Parliament just after that letter was delivered. ‘Already she has started softening her language on the ECJ – very carefully. Instead of saying “we’re going to be out of the ECJ”, she said “we’re going to make sure the ECJ has no jurisdiction in Britain”.’

Her ‘carefully crafted words,’ he says, indicate that she sees the need to make the Euro-toxic right recognise that you cannot operate in a world of free trade or regulated trade without supranational courts, and the ECJ is going to be part of that.

Find an early compromise on the ‘bargaining chips’ and residence, and on the money, he suggests, predicting the UK will have to ‘pay quite a lot’ into the EU coffers before quitting.

‘It’s not just about [Nigel] Farage’s pension; there’s a lot of other stuff. There’s a lot of planed investment by the European Investment Bank into the UK. If we don’t pay our share, they can just say “why should you have the money?”’.

One of the difficulties, he says, is separating the ‘rhetoric and posturing’ from the reality. In the debate over the sum the UK will we’ll pay, different players, he says, are ‘just waving figures around’.

‘We go €5, they go €82 million – it’s just like any other negotiation, only it’s being conducted by megaphone’.

And if May refuses to cough up, while he says there is a ‘respectable argument’ that the EU may sue for some liabilities, he thinks it unlikely.

Timetable

Having pressed the Brexit button, there is a two-year deadline to agree an orderly exit. But, Jenkins points out, nothing much is going to happen before the French and German elections are out of the way. And then it seems to be accepted that there will be a six-month ratification process – by the British and European parliaments – which leaves about a year of ‘hard arguing in the middle’.

Explaining the process he says the two-year period will merely establish a framework, before the really hard stuff begins. Achieving a fully-formed, legally-binding articulation of our long-term relationship with the 27 states, he predicts, will take longer than two years.

And while so far there has been much talk about article 50, now comes article 218 – which, he explains, is the treaty provision that deals with agreements between the EU and third countries.

Using the clichéd analogy of a divorce, he states: ‘Article 50 is where you sort out who gets the house, who pays the maintenance and you get some fairly high level principles about what happens to the kids.

‘Article 218 is the really hard grind about which schools they go to, who has access this weekend, who has access the weekend after — the really difficult stuff.

‘If it is done as it’s done in the family court, you’d do it sequentially. But sequentially is a complete disaster for us, unless you get really good transition arrangements in the middle’.

He predicts that the other 27 are not going to give us a gentle ride from article 50 into the ‘new free world’. While the negotiations will be split into manageable chunks, all deals will stand or fall together.

And he points out it could all be scuppered over one issue, such as immigration, if May can’t rein in her right wing. ‘If we really annoy the Poles, Bulgarians and Romanians – three quite big players — and then Spain spots that it can join them and really cause trouble raising the issue of Gibraltar – they could bring the whole thing down’.

On whether no deal is better than a bad deal, he is emphatic: ‘No deal is absolutely catastrophic. No deal is at the end of two years you just fall out and you cease to be a party to every treaty including those with third countries.’

Provisions covering air travel are a useful example, he says: ‘If you fly to the States, you do so under the 2007 open skies agreement between the EU and the US. If we leave over the cliff edge with no deal, after two years and a day that treaty will cease to apply to the UK instantly. So they’ll be no legal basis for flying. Without a legal basis for flying, an airline would lose its insurance overnight’.

He predicts, with no degree of optimism: ‘The worst they will offer us is something that is better than no deal’.

Adding sadly: ‘One thing that people in this country really don’t get is how much idealism there is at the heart of the European project. So the idea that they’re going to be like us – looking for mucky compromises and economic deals, misses the point.

‘Our idealism is that we want to “take back control”. Their idealism is an ever-closer Europe’.

The hellish prospect of more litigation

The route to Brexit, he says, may go through a number of ‘hellish scenarios’ with further litigation by citizens and states.

‘The masters and mistresses of the art of negotiating compromise in Brussels may come up with a deal that looks quite good to everyone, except that it fudges the four freedoms so much that people who don’t like it go to Luxembourg with it, and suddenly you’ve got the court coming in and ruling on the vires of it’.

Or he, suggests there will be argument over the process for agreeing certain deals and whether an agreement is a ‘mixed’ agreement, and therefore requires national, as well as governmental agreement. ‘That’s when you get the Walloon-type issue,’ he says, adding: ‘Then, I suspect we’ll see the European Court at its most political because they’re not going to want to scupper this’.

The role of the civil service

While negotiations will be conducted on many levels, with some set-piece encounters with all the heads of government, much work will be done by the civil service, in London and Brussels.

The scale of their task, he says, is massive. ‘In my most hyperbolic moments, I’ve said it’s the biggest peacetime task facing the civil service in the history of the country’.

Three years out of the service, he remains a loyal fan and is confident that they are up to the task. Despite having shrunk under the austerity measures to its smallest since the second world war, Jenkins says the service is still large and has a huge amount of expertise, even in quite surprising subjects. ‘There’s a chap in the British civil service who has responsibility for bees,’ he says, by way of example.

‘And there’ll be the equivalent of that everywhere – real experts who will have been advising behind the scenes’.

So, on a positive note for lawyers who want to continue to practise on the continent, he reckons there will be someone in the Ministry of Justice who knows all about it, so while it won’t be high priority, it won’t be forgotten.

And he adds: ‘Lawyers are very good at special pleading – you don’t imagine that the European practitioners at Matrix and elsewhere are sitting there saying “oh dear, I wonder what’s going to become of us”. They will be raising the profile’.

But two areas concern him– the lack of expertise in trade negotiation and the capacity to carry out twin-track planning, preparing both for a successful deal and what to do if it all goes wrong. ‘They are two very different exercises and I’m not sure how you do them together’.

Strategically, he says, having Liam Fox, Boris Johnson and David Davis inside is very clever, though he fears all three underestimate the scale of the task ahead.

When Davis and Fox were appointed, he says, both believed that everything would be sorted after a short series of meetings and that the UK would get out with what it wanted because the Germans want to sell cars.

‘By all accounts Liam Fox still believes that and is therefore proving catastrophic. But, David Davies, everyone tells me, has been on an amazingly steep learning curve and gets more and more worried by the day. He gets it and knows exactly how complicated it is.’

And if it all starts to go really wrong and looks too much like a cosy deal, Jenkins is interested to see which of the three Brexiteers will go first. ‘If Johnson or Davis go that will be damaging, because they could be at the heart of a campaign against her [May] on the Tory benches. But I think most people regard Fox as expendable’.

In any event, he says it will take ten years before we have a clear idea of Britain’s place in the world. Some sort of deal will be done in two years, but it is the three to five years after 2019 that Jenkins says will be the ‘critical period in terms of forming our relationships with the EU and beginning to form our relationships with the rest of the world’.

And, he predicts, London will still be a ‘thriving, buzzing, great capital of the world’ – ‘it’s not just that it’s impossible to imagine it any other way; it’s inconceivable’. But, he says, a lot of the country will suffer.

However, there may possibly be an escape route. The process, he suggests, is not irrevocable and there is a case for leaving open the possibility of a second referendum if it’s all gone catastrophically wrong in two years. Though ‘we should never say never,’ he thinks the chances of a second referendum are unlikely.

And, he adds: ‘One of the things people underestimate is just how stubborn the Great British public is’ – a problem that he suggests Nicola Sturgeon is also up against in her quest for an Indy Ref 2. ‘There will be people who voted in favour of independence or against leaving the EU, but if you ask them again, even if it’s gone really badly, and you ask them again, they will say “go away, you asked me once, don’t ask me again”.’

Where does it leave the UK?

He is a ‘huge admirer’ of Sturgeon, whom he rates as a ‘far more cannier politician than Alex Salmond’. ‘If she’d have been in charge last time, they’d have won. If anyone can achieve an independence vote it will be her’.

But, he says, she has a difficult task. If she caves in to her hardcore wing and called a referendum now, he says, she would undoubtedly lose. And it is only Brexit that has given her the chance of another pop. ‘If they have a second referendum, they won’t have another, so she can’t afford to screw it up’.

While he says: ‘People will continue to neglect Northern Ireland – no one is terribly interested in it and it’s seen as a dysfunctional place’.

Although he predicts that once the demographic of the population alters, it will, in the lifetime of the younger generation, shift towards unification.

It was, he suggests, perfectly reasonable for Theresa May to fight the Brexit legal challenge. And, he notes, it filled time between the referendum and March, so gave the civil service, who had been forbidden from pre-referendum contingency planning, a bit of time to think.

‘One of the predictions I got right was that if Cameron lost, he’d go the next morning. But I assumed we’d have a Tory party election contest, which would go form June to the conference in October, during which time all civil service leave would be cancelled so they work out what to do’.

Does he wish he was part of it? ‘Absolutely not! If you’ve spent 35 years in and out of Brussels making it work, I can’t imagine being there now helping to pull it apart’.

The blame game

For all this mess, he lays the blame, as many others do, squarely at the feet of David Cameron, whom he nonetheless describes as the ‘best tactical prime minister I came across’.

‘If you were in a crisis and you need to get to the end of the week, he’d get you there. He was a safe pair of hands and was brilliant in parliament. But, if you tried to get him to think strategically about where something was going in six months or a year, he wasn’t interested’.

When it came to the referendum, he says Cameron acted with a ‘sort of arrogance’ and a ‘fairly typical, cavalier attitude’ believing everything would be fine.

‘I just don’t think it occurred to him that he was doing anything stupid. This was a way to shut the party up and we’ll be fine. And he got it wrong – massively’.

The behaviour, he suggests, epitomises the ‘failure of leadership’ in the Conservative party over recent years. ‘The last time we saw any serious leadership on this issue was with John Major, who many civil servants will tell you, and I’m one, was a much under-rated prime minister and one of the nicest people you could ever work for’.

Although, he says he does not know Theresa May very well, he says: ‘Her public image is very much what’s there. There a certain austerity and chilliness’.

One of the constant duties of his time as treasury solicitor, he recalls, was ‘ensuring that ministers stick within the rule of law’, though he fully accepts that they are entitled to push its edges and test the boundaries.

‘Both Dominic Grieve and I had terrible trouble with David Cameron, for example, on prisoner voting, where he was determined to push beyond what was permissible’.

But as home secretary, while Theresa May would ‘test you and test you and test you, when she was finally convinced that the law was what it was, she had absolutely no qualms about obeying it’.

Life as the Treasury Solicitor

Jenkins was treasury solicitor for eight years, serving under three prime ministers – Blair, Brown and Cameron.

‘I didn’t have much to do with Gordon Brown. We all used to have lots of contact with Blair and when Brown was made prime minister someone said to me “you’ll all start thinking you’re not getting as much access, and you’ll think that’s rather sad. But when you get access, you’ll realise you were quite lucky not having it”.’ Quickly adding that he never had any trouble with him.

Accepting that it is an ‘unfashionable view’, Blair, he says, was a ‘complete joy to work with’ and he would ‘work for him again tomorrow’.

‘Lots of civil servants still hark back to those days – he was clever, polite and focused, but made one mistake – and at the time most people didn’t think it was a mistake’.

He feels sorry for his former boss and the way the cloud of the Iraq war has hung over Blair, overshadowing his achievements and preventing him from playing a greater part in political life since leaving office. ‘Whatever the media was saying, he was one of the ones who wanted to get the [Chilcot] report out, because he knew that until then there was absolutely no chance of him moving on’.

Jenkins adds: ‘The way that he’s had to suffer since, and the way that the media has dealt with and continues to deal with Cherie is absolutely scandalous.’

The Leveson enquiry and the mediated settlement over claims brought by 12 British citizens detained at Guantanamo Bay, he reflects, are the defining moments of his time as Treasury Solicitor.

On the former, he recalls: ‘There was very little doubt that we had to set up the enquiry, because they’d hacked Milly Dowler’s ‘phone’.

But, he muses: ‘If David Cameron had known that Andy Coulson and Rebecca Brookes were having an affair, would he have set it up? I don’t know’.

While many journalists take a different view, Jenkins takes pride in what he describes as his ‘great claim to fame’ – he came up with the idea of a Royal Charter to set up a new press watchdog.

He recalls: ‘Cameron had said he’d implement Leveson if it wasn’t bonkers and didn’t require legislation’. While other lawyers suggested a statute would be required, Jenkins, who had been legal advisor to the Department of Culture Media and Sport in the 1990s when the Arts Council and Sports Council were set up by Royal Charter, suggested the same thing for press regulation.

On the Guantanamo claims, he recalls: ‘We wanted to try and draw a line under them. We thought we could probably defend them, but it would take ten years, cost a huge amount of money and, although we may have been able to win, we could have only done so by using intelligence material that would have damaged our relationship with the States. So we had to try and mediate’.

The lawyers went to Cameron and coalition deputy PM, Nick Clegg – the latter of whom Jenkins describes as ‘an awesome politician and a wonderful person’ – with a package for the mediation, an enquiry [the Gibson Report] into what went wrong and the introduction of secret courts, or closed material proceedings, by the Justice and Security Act 2013 — which they went along with.

‘Cameron and Clegg backing us on that was absolutely critical,’ he says, and while everyone thought the mediation would be the hardest part, it was concluded in two-and-a-half weeks.

‘Interestingly when one of the people who got compensation blew himself up in Iraq a couple of weeks ago, there was only a mild sort of media shit-storm. I had waited for this moment, thinking I’d be dragged in and there’d be a public enquiry. I was quite surprised how quickly it went away’.

One of his big achievements, he says, was bringing the fragmented government legal departments into a single organisation. ‘By the time I left it had around 1,500 fee earners, so it’s quite a big legal business.

‘The great thing about the job, is that if I was doing that in a magic circle, I’d be doing nothing else – I’d be the managing partner. Whereas with this 40% of my time was spent doing real work. I never had to let go of being a lawyer’.

Do ministers listen?

As you might expect, his answer to that is a big, fat ‘yes’. ‘Our job has always been to advise. One of the things you do as a lawyer in the civil service is try and deliver what politicians want – they are our political masters and mistresses and the elected representatives. If they want to do something, our job it to try and make it happen’.

Though, he says, that quite often they will want to achieve their aims in a way that does not work legally. ‘So part of the skill is to find innovative, imaginative ways of delivering what they want.

‘Good ministers will understand that and listen right from the start. Some just close their minds to it. In the end they suffer, because they end up not delivering what they want or what they could if they listened a bit more’.

When the government loses legal challenges, that is not, he says, a failure of the civil service. ‘It’s perfectly legitimate for government to test the law to its limits’.

For example, the government was right to test the law over control orders. ‘The government was perfectly entitled to establish where the high-watermark of the law was in relation to controlling suspected terrorists, who you can’t put through the normal justice processes.

‘We came out with what we thought we could do and the court said “no”. So gradually we got to the point where we had to give up on control orders and we came up with TPIMS – which never really worked.’

In defiance of critics, he adds: ‘I suppose this is controversial, but during those years what did the control orders do? Well they controlled actually – they worked – they may eventually have been found to be too severe, but for a long time they didn’t half work’.

He goes on: ‘The very hard-edged, campaigning lawyers think that’s an unacceptable approach, and that one has to be purer than pure about these issues. But you’ve got to have an element of pragmatism about this if you’re the government.

‘It’s easy for campaigning lawyers to say “This is outrageous” and for politicians to shout about it. But if you’re a government minister you’ve got a duty to try and do your best’.

Politics, he muses, is a ‘pretty unsatisfactory place to be’ and ‘very difficult’ for lawyers. ‘I’ve always said that lots of lawyers make really bad politicians, because lawyers are the epitome of normal logic and have the most rigorously logical minds.

‘Politicians have rigorously logical minds, it’s just that it’s political logic and that’s completely different to legal logic. What a politician thinks it logical, most normal people think it utterly irrational’.

On the subject of one lawyer turned politician, however is he effusive in his praise. Keir Starmer, whose time as DPP coincided for three years with Jenkins’ time at TSol, he says is ‘wonderful – absolutely one of the most decent, splendid human beings on this planet. He’s got amazing values and is a lovely person’.

While he does not want to give his political potential the kiss of the death, he reckons that the Labour party ‘could do a lot worse’ than have Starmer lead it.

Despite being so closely involved with politics for 35 years, Jenkins says he is not party political and belongs to no party. ‘One of the reasons I didn’t go into politics was that my political views are all over the place. And being a lawyer who likes logical thought, I’m not vey good at compromise, which most politicians are’.

Giving an indication of where he sits on the spectrum, he adds: ‘It is fairly rare to find a civil servant who’s far to the right of centre – it’s a sort of centre left profession’.

Life after TSol

‘I takes a while to get used to not being at the centre of things and not knowing what’s going on. But you get used to it,’ he says. When time away from advising on Brexit permits he does investigatory work from his base at Matrix.

Returning to the bar after an absence of 35 years has been an eye-opener. ‘It’s all so much more professional — you now do a lot of marketing and work with clients to help them understand what you’ve got to offer.

‘And that makes perfect sense, but 35 years ago you weren’t even allowed to have a drink with a solicitor. You certainly didn’t have a chambers party and, if you did, you wouldn’t invite solicitors’.

The son of two junior civil servants, Jenkins went to a state school – Harrow County School for Boys – and was the first member of his family to go to university. As a teenager he listened to the recreation of famous criminal trials on the radio and fancied a career at the bar.

At Manchester University, he found he did not enjoy much of his studies, but his legal aspirations were saved by one inspirational lecturer – Harry Street, famous as the author of one of the leading textbooks on tort.

Street developed a final year course on public law, which rekindled his interest and gave him an understanding the way law and politics work together.

Then it was off to 2 Hare Court, now Blackstone chambers, before joining 10KBW, where he had a classic knockabout practice doing a daily mix of crime, matrimonial and civil law.

As an idealistic 22-year-old barrister, he recalls: ‘I remember the first time I realised that a client was lying to me – it was the most terrible shock’.

After that, the disillusion set in pretty quickly and he fled private practice for the government legal service. That was in 1976 and, he since then he says, ‘I can count on the fingers of one hand the number of dull weeks I had there in 35 years there’.

‘If you want to do public law and you’re interested in politics, but don’t want to be a politician then working in the government legal department is just amazing’.

Jenkins, who is a bencher of Middle Temple and next year will be its treasurer, says he owes a lot to his Inn, which gave him a scholarship and helped him get pupillage. ‘It was very odd being a state schoolboy with no legal connections in 1976. If Middle Temple hadn’t looked after me, I don’t know if I’d have enjoyed it so much’.

As Treasurer, he wants to do all he can to encourage and support students from non-traditional backgrounds come to the bar. ‘I worry enormously about the future of our profession. I worry that it will slide backwards to the socially exclusive profession that it was when I joined’.

My Country Right or Wrong – A play by Nigel Pascoe QC

Inner Temple’s wood-panelled Parliament Chamber was the setting for a cast of 17 to present a thought-provoking evening of dramatised reading examining the legality of the Iraq war. picture-122-1424101221

The writer was Pump Court Chambers’ Nigel Pascoe QC, who has previously brought audiences his one-man show, The Trial of Penn and Mead. He had done a volte-face on his view of the war, initially supporting British PM Tony Blair and his reliance on the so-called ‘dodgy dossier’.

His change of heart prompted his own forensic analysis of the evidence – the result of which was the play – My Country Right or Wrong.

Pascoe, who narrated the story, had put together newspaper cuttings, minutes of meetings, parliamentary debates and other documentary sources, read by the cast who played the dramatis personae involved in the unfolding disaster, with a lone violinist striking up to mark the most portentous moments.

Among them 5RB’s Iain Christie (a former legal adviser to the Foreign and Commonwealth Office, who has acted for the government in high profile cases before the European Court of Human Rights) played a rather wet Blair, Gareth Frow brought to life US president George Bush, with a comedy Texan accent, before later doubling up as Geoff Hoon MP and Greg Dyke, while Simon Walters took the part of an excitable US reporter before flatting his vowels to morph into William Hague.

Seated in a wide semi-circle, the cast rose sombrely to their feet to deliver their lines, and positioned, as they often were, on opposite sides of the room gave the audience the feeling of being at Wimbledon.

The play is directed towards an imaginary jury – the audience, which during Friday’s performance included a tiny pooch.

Barrister and actor John Bromley-Davenport prompted the jury to consider the evidence, on occasion remarking, in the manner of Michael Dobb’s fictional chief whip Francis Urquhart, ‘You make think that, I couldn’t possibly comment’, before finally asking ‘How say you?’

And the verdict – an interesting run down of the events, recalling the big parliamentary speeches and key moments, that could have benefited from greater pace and a little editing – though not in the manner of the infamously ‘sexed-up’ intelligence report.

Legal Hackette Lunches with James Parry

Over a beef sandwich and glass of crisp white wine at Fleet Street’s El Vino, the solicitor who led the charge for a the vote of no confidence in the Law Society’s former chief executive tells how he turned from ‘terrorist’ to Chancery Lane insider and, as it reels from the resignation of its latest chief, points out how it needs to change to survive. He also predicts the death of the criminal bar in 15 years and widespread bankruptcy if further legal aid cuts are implemented. 

aaeaaqaaaaaaaaeqaaaajdrlmtq1mde4ltzjywqtndu5mi05zgjilwjlnmyyndzmmzi5naSolicitor advocate and partner at Liverpool firm Parry Welch Lacey, James Parry, is best know for the campaign he lead for a motion of no confidence in the Law Society’s leadership in the wake of its deal on criminal legal aid with justice secretary Chris Grayling in 2013.

Vote of no confidence

The motion declared that the Society’s members had ‘no confidence in the ability’ of Nicholas Fluck, president, and Des Hudson, chief executive, to ‘properly and effectively represent’ legal aid solicitors in the negotiations with the government.

It was passed by 228 votes to 213. Hudson resign the following March, but said that he made the decision to quit the previous year.

Parry recalls how it happened. ‘We were sitting in the office one morning – everyone was saying that something should be done, but no one was doing anything. So we said “why don’t we do it?”

‘The first thing that happened when we started the call for a vote was a call from Des Hudson’s secretary to say Des would like to speak to me. It turned into a bit of a haranguing – I was stood on the naughty step for 15 minutes while he gave me his opinion on what I was doing. We had to agree to disagree’.

Two local lawyers were delegated to keep an eye on him and persuade him to come to heel. Then he was invited to attend a round-table meeting with Grayling – which was the first time he had been to Chancery Lane.

Parry expected to lose and he, reckons, the Law Society expected him too. ‘If it hadn’t been for social media we wouldn’t have won,’ he adds.

The Haldane Society unexpectedly put on a show of support outside the Chancery Lane HQ and on arriving Parry says he was aware there was support for the motion.

During the ‘fairly-chaired’ debate he recalls a key moment: ‘A lady, whose name I can’t remember, said “here we are surrounded by pictures of all these dead white men”.

For Parry it seemed a visual demonstration of how out of touch with its members the Society had become.

From terrorist to insider

Since those revolutionary days, Parry’s involvement with the Law Society has changed – he now chairs it criminal law committee.

After the dust had settled, Richard Atkinson, the then chairman of the committee, suggestion to Parry that if he was going to criticise the Law Society, he should do it from the inside, if he really wanted to bring about change.

‘I think he had point. It’s very easy to sit on the sides and snipe, but that’s not terribly constructive,’ says Parry.

‘The strange thing about my transformation from terrorist to insider, is that when I started the vote of no confidence I had no idea that the criminal law committee existed. I knew very little about the way the Law Society worked. I think that’s part of its problem’.

Wither Chancery Lane

Contemplating the Society’s future, he more than most is aware of its needs to change. ‘It’s not a regulator nowadays; it’s just a members’ society, but it is seen as irrelevant to many of its members’.

Though he says it would be a sad day when it happened, he can imagine a time when the Society no longer admitted solicitors. He can also see it splitting up because the needs of its diverse members are so varied.

City solicitors, he suggests, are well served by the City of London Law Society, criminal lawyers have their own groups and family practitioners, who have seen their legal aid work disappear, feel failed by it.

One of its difficulties, he says, is that it ‘was designed for a different century’ and has a ‘very slow chain of command’. Looking to the future it needs to be more transparent and more reactive to its members.

‘It has got to put itself in a position where it can survive on the membership that it can keep with it’. To do this, he suggests, it should become a training provider and trade union that actively promotes the interests of its members.

‘But they can’t do that on the basis that everything happens in London, because the majority of us aren’t in London,’ he adds.

Advocates’ Graduated Fee Scheme

Like many criminal solicitors, Parry is concerned about the proposed reforms to the advocates’ graduated fee scheme, currently being consulted on by the Ministry of Justice.

‘My personal view is that it is grossly unfair to the junior bar and solicitor advocates. It restores an increase to silks, but juniors will suffer’.

And it is the junior bar, he says, who will feel the pinch the most. ‘Firms will take the financial hit for their junior solicitors who get paid a wage, but junior barristers will take the hit themselves’.

He predicts that many young barristers will go in-house with law firms or turn away from criminal practice, which will remove the senior juniors and prosecutors of the future.

Looking at the fees on offer for juniors, after taking into account chambers’ rent, travel, and tax, he says ‘it’s not far off burger-flipping money’.

If it sticks by the new scheme, which it helped devise, he suggests the criminal bar will do itself enormous damage and will cease to exist within the next 10-15 years.

Fee cuts

As criminal practitioners are being asked to consider the new scheme for Crown court advocacy payments and to sign up to new criminal legal aid contracts, uncertainty remains over whether the second tranche of 8.75% fee cuts will be implemented.

The new contract comes into force in April and the fee cut is written into it, although it appears to have been put on the back burner by the Ministry of Justice.

Parry suspects that pressure from the Treasury will see the further cut made. And if that does happen, he predicts ‘some pretty high-profile bankruptcies in the near future’.

While many firms will feel they have not choice but to sign the new contract, if the cuts come in, he cannot firms will survive as fees have already been cut to the bone.

His own firm is undecided about whether to sign up to the new contract.

Merseyside court closures

As the ministry presses on with its programme of court closures, Parry reflects on the changes that have taken place on Merseyside. ‘In the last five or six years we’ve lost three of our major magistrates’ courts.

‘When I went to Liverpool in 1990, the magistrates’ court had 21 court rooms – it now sits in the crown court, where it has eight court rooms and a youth court that sits only twice a week.

He doubts that the decline in courts and cases reflects falling crime. Rather, he suggests: ‘People are being cautioned, let off, given final warnings and are not coming before the court.

‘That’s troubling, not because I want to see people criminalised, but if you don’t bring people before the courts you end up with secret justice, which then becomes injustice’.

It also causes a loss of confidence in the criminal justice system, because people still see crime around them, but nothing being done about it.

Cases, he says, are not getting to court, because the police do not have the staff to do the necessary work – partly due to cuts but also because they have been increasingly focused on sex offences and anti-terrorism. In addition, he says, the Crown Prosecution Service is ‘badly under-funded’ and cases are either not being prepared properly or are being dropped.

Impact of mean testing

 Means testing for legal aid eligibility was reintroduced in the magistrates’ court in 2006. Since then, says Parry, it has worked to deny people access to legal representation and justice.

If a couple’s joint income exceeds £239 a week, he explains, they will not be eligible for legal aid, which effectively means that the scheme only covers those on state benefits.

‘Huge numbers of people have been stripped out of legal aid. Legal aid is dying’. And the result is that people are either paying privately at a much lower rate than the legal aid rates or are representing themselves.

Brexit

 On the impact that Brexit will have on EU justice measures, he hopes that the use of the European Arrest Warrant and other crime fighting initiatives will remain.

‘It would be a travesty for us to be kicked out of law enforcement measures at this time of increased concern over terrorism.’ Adding: ‘The biggest increase in criminal activity is online and the internet does not respect borders’.

Anonymity for rape defendants

Considering the impact that false accusations have on those accused of rape and serious sexual offences, and in particular looking at the high-profile cases involving Paul Gambuccini and Cliff Richard, Parry believes there should be anonymity for defendants.

While he acknowledges the counter argument that naming defendants can lead to other victims coming forward, he observes that subsequent accusations can be dealt with in separate trials, as has happened in relation to Rolf Harris.

‘If you make an allegation of sexual impropriety against anyone it ruins their career. Their reputation is gone and an acquittal is insufficient to restore it’.

Route to law

Recounting how he got into the legal profession, Parry says it was an accident. ‘I ran away to sea just after my O-levels, joined the Royal Fleet Auxiliary and trained as a marine engineer’.

He qualified just before defence cuts came in that preceded the Falkland’s war, so had to look for a new path. Seeing that all major industry was drying up, he had to find an alternative path.

After completing a business studies diploma he took a job in the fines and fees department at Sunderland Magistrates’ Court, which he found exceedingly dull.

Going into court one day, he witnessed a bail application and thought he’d rather enjoy doing. Fortunately for him the burgeoning CPS was recruiting court staff to its ranks and the courts needed to replace the lost labour, so offered staff the opportunity to become trainee clerks.

Parry was also given the chance to study a part time degree and was taught contract law by the soon to become transport minister, Stephen Byers. ‘Whatever his failings as transport minister, he was an absolutely excellent contract law lecturer’.

He did a stint at Liverpool Magistrates’ Court where he administered legal aid and was engaged by the then Lord Chancellor’s Department to train staff to carry out the interests of justice test.

Parry qualified as a solicitor at the expense of the court service and went into private practice in 1996. He set up his own firm seven years ago and has recently carved out a niche doing dangerous dogs work.

He favours a change in the law that would mean dogs did not have to be destroyed just because of their breed and is a supporter of the charity Born Innocent, set up by barrister John Cooper QC.

‘Pit bulls aren’t the most dangerous dogs; you’re more likely to be bitten by a dachshund,’ he notes.

And with that, he is off the Petty France for a meeting with the ministry.

Legal Hackette Lunches with Bob Neill

imgresOver tuna, chips and a bottle of white plonk at Adjournments in a bustling Portcullis House, the chairman of the justice committee discusses the ‘wasted opportunity’ caused by Brexit, the pressing need for prison reform and why the legal profession should not rule out fusion.

Despite being a Conservative, the MP for Bromley and Chislehurst, Robert James MacGillivray ‘Bob’ Neill, is far from uncritical of the government.

Without criticising individual ministers, the Ministry of Justice as an institution, observes Neill, ‘is much too blinkered in its approach to things,’ perhaps, he suggests, because of the ‘lack of lawyers there who can stand up against institutional resistance and trust the people who can make things work.’

But he adds: ‘It’s not our (the committee’s) job to be confrontational with Liz (justice secretary and lord chancellor, Liz Truss) and her team — I like all of them personally. It’s our job to help them overcome the obstacles’.

Boosting the magistracy

The influential committee has just published two significant reports. The first, on the role of the magistracy, proposed doubling the sentencing powers of magistrates, and the second, on young adults in the criminal justice system, called for 18-25 year olds to be kept out of adult prisons.

The former, he says, received ‘interesting’ responses. ‘It’s the usual thing with government – they are happy to go with the easy bits, but shy away from the tough parts.

‘Although they have no evidence, as far as I can see, they are not prepared to implement the increased sentencing powers’. The MoJ, he explains, is worried that the move will increase the prison population, because it thinks magistrates are more likely to send offenders to prison than crown court judges – a view he suggests is outdated.

‘They say they have done the modelling, which suggests it would lead to an increase in custodial sentences. But if that’s the case, why on earth don’t they publish the evidence’.

While the ministry fixates on the impact on the prison population, it is missing savings that would be made to the crown court budget, he adds.

The committee has some hefty pieces of work on its to-do list. It has begun work on prison reform – an inquiry that Neill expects to run for a couple of years, with reports published during that time.

He is adamant that there must be a ‘right of centre, Conservative case’ made for alternatives to custody. ‘Locking people up is not good for offenders, or for preventing people becoming victims of crime, and it costs a shed load of money. There are better ways to do it’.

Just what does Brexit mean?

The committee has issued a call for evidence on the legal implications of Brexit. It will consider the impact on the justice process and the legal sector, what the government needs to address in its negotiations and steps to mitigate any adverse effects. The committee expects to begin hearings before the year is out.

Linked to that, is an analysis of the implications of Brexit on the crown dependencies.

An ‘unrepentant Remainer’, Neill nonetheless says he respects the outcome of the referendum and will not vote against the bill to repeal the EU Act, if the Supreme Court upholds the High Court’s ruling that parliamentary authority is required.

He is not happy with the name of the PM’s Great Repeal Bill and suggests it should more accurately be called the ‘Necessary’ Repeal Bill.

While he understands that the former prime minister, David Cameron, had to call the referendum ‘for management purposes’, following the ‘muffed campaign’ that meant the ‘Remain’ camp lost, Neill is saddened by what he sees as the ‘wasted opportunity’.

‘We could have had a perfectly stable, left of centre, broadly reforming Conservative government that was doing some good work on social issues.

‘All that has been thrown up in the air for a concept. What’s the reality of sovereignty in a modern world? It isn’t going to pay anyone’s rent or mortgage or give any value to people’s everyday lives’. Rather, he complains, Brexit has ‘taken over the life of the parliament’.

Wither Gove?

He is disappointed by the loss of Michael Gove as justice secretary and lord chancellor. ‘On a personal level, Michael was the Brexiteer I respected most – he had at least always believed in it, albeit wrongly.

‘He was doing a good job at justice and could have been a major, reforming Tory minister on social policy, like Peel or Disraeli, and that’s been thrown away because of the concept of sovereignty’.

The current incumbent, Truss, he says is ‘thoughtful, clever, though not as articulate as Michael, and wants to get it right’.

He gives her credit for ‘getting it right’ by shelving (for now) the proposed reforms to personal injury claims, that would have increased the small claims limit and removed the right to claim compensation for whiplash injuries.

‘She is very much into method, process and evidence. She took away all the boxes, read them over the summer and formed a judgment’.

He adds: ‘Having Ollie Heald (Oliver Heald, courts and justice minister) there is a big plus. Having done that sort of work at the bar, he would have seen that we were going down a blind alley with it’.

The problem for Truss initially, he says, was that people felt disappointed by the loss of Gove, who had given the impression that he was willing to listen to the profession, and they still felt the loss of Dominic Grieve, the lord chancellor that never was, whom Cameron sacked as attorney general.

‘Dominic was ill-treated. He shouldn’t have been dropped as the attorney. The job of the attorney is to speak truth to power. Although I remain a fan of David Cameron, his treatment of Dominic does not resound to his credit’.

In praise of fusion

Also on the committee’s list is an inquiry into legal regulation, so he is tight-lipped on what he would like to see and whether there should be a single regulator. ‘I’m conscious of the arguments either side,’ he says.

Unusually for a barrister, Neill says the profession should be prepared to contemplate fusion, which he says works in a lot of jurisdictions without any significant detriment to the profession or the public interest.

‘People always think of it in terms of America, which I don’t think is a good example. They should look at those Commonwealth countries that have adopted a fused model,’ he says.

‘The profession would be unwise to rule out fusion – they shouldn’t take absolute or entrenched positions,’ he suggests. Indeed, he ventures, struggling junior barristers might welcome the security of starting out in a fused profession, before developing a specialism as a court advocate.

From the client’s point of view, he says: ‘Your brief is your brief and it doesn’t matter if it’s a solicitor or barrister’.

With solicitor advocates, public access barristers and alternative business structures, some suggest the profession is already moving towards fusion.

Doing so incrementally, says Neill, may be sensible, and he is keen that it is not imposed on the profession, but says: ‘We shouldn’t be scared to talk about it’. He adds: ‘I say it as a friend, because I want the profession to succeed’.

Embracing the digital

On other issues, he counsels the legal profession to be ‘cuter’ in the way it makes its arguments opposing government policy.

A case in point is the reaction to digital courts, which the profession sees as a move towards de-lawyering. ‘It’s not naked self-interest, as all professions are inevitably cautious about change. But, maybe there’s a challenge for lawyers to do their job differently’.

If every time change is proposed, the profession complains, there is a danger, he says, that it is perceived as crying wolf. It risks losing credibility with parliament and the media, and its arguments may be discounted.

‘It is not a criticism that can be laid at the door of the current leadership of the bar or the Law Society, but they (the professions) got so shrill and were perceived as being quite partisan,’ he says, adding that ‘the bar was worse’.

‘The good arguments got lost in the general perception that it was a bit of an old boys’ and girls’ club being a bit protectionist, which was a shame’.

He accepts that the professions were right to oppose some proposals, for example, some of Chris Grayling’s reforms that were ultimately ditched.

Getting legal aid right

The government, he says, got it wrong with the scale of the legal aid cuts. Some cuts were necessary, but the number of unrepresented parties, particularly in family cases, he suggests, indicates that they went too far. He would like to see a rowing back in the chancellor’s autumn statement.

As the committee’s report in June pointed out, the government also got it wrong on employment tribunal fees. ‘I’m not over-impressed with the MoJ on the fees stuff so far. The litmus test will be what they do to employment tribunals,’ he says, adding that the committee is ‘getting a bit impatient’ waiting for the outcome of the ministry’s fee review. Neill he is not against cost-recovery, but says the fees need to be scaled back.

He adds: ‘If you think there are too many cases being brought, the correct approach is to change the substantive law and the legal test for permitting cases. There’s a danger that we use the fee system as a rationing system, which is not what it is intended to be’.

On the second tranche of criminal legal aid fee cuts, Neill says Truss is not in a rush to bring them in, and is focusing on making savings in other ways.

From the profession’s point of view, he suggests that a kick into the long grass is probably the best they could hope for and advises that their ‘best bet maybe to let sleeping dogs lie’.

Anonymity for rape suspects

More widely, he reckons the law on the admission of the sexual history of rape complainants works ‘sensibly and sensitively’ and does not need to be changed, as some argued following the Ched Evans case.

He would support anonymity for defendants in rape cases — even after charge — with the ability for the crown to make an application for it to be removed if there are ‘compelling reasons’.

And he would like to see more perjury cases brought where rape allegations have been proved to be false. ‘Making a false allegation is a pretty dire thing to do – you put someone in jeopardy of losing their liberty, as well as being vilified, and it’s an abuse of the process’.

Working class lad

A working class lad, Neill went to Abbs Cross Technical High School in Hornchurch and the London School of Economics. His father worked on the production line at Ford, his mother ran a shop, and his grandparents were teachers and dockers.

‘A product of that part of the East London,’ he describes himself as ‘a lawyer first and politician second,’ but he says the two have always been part of his life.

On his transition to full time politics, he reflects: ‘You get to the stage where you apply for silk and it does or doesn’t come off. Then you think about going onto the bench, which I think I might have enjoyed. But ultimately you are implementing somebody else’s decisions, which would be a frustration’.

Neill still keeps up with issues at the bar and was ‘chuffed’ to be made a bencher at his inn, Middle Temple. Outside work he enjoys opera and supports West Ham United football club. ‘One Saturday you could see me at Covet Garden and the next at the Olympic Park,’ he says with a wink.