A senior immigration tribunal judge has spoken out about the problems dealing with appeals from unrepresented appellants when Home Office caseworkers seek to defend ‘unsustainable’ decisions on appeal.

Speaking at a event organised by the Bar Council to mark pro bono week, Judge Nicholas Easterman, who sits at the Immigration Tribunal at Hatton Cross in London, highlighted the complexity of immigration law that unrepresented appellants are expected to navigate.

‘Immigration law is a total nightmare. I don’t suppose the judges know anymore about it than the appellants who come before them,’ he said.

Operating in an adversarial system, said Easterman, is ‘difficult’ when judges are faced only with Home Office presenting officers and appellants who are not legally represented.

Given the complexity of the law and lack of legal representation for appellants, he said: ‘We cannot manage in many cases without proper assistance and we rarely get it from the Home Office.’

While some presenting officers were ‘good and fair’, Easterman said others were ‘worse than useless’ and seek to support ‘impossible’ and ‘unsustainable’ decisions.

He criticised some Home Office presenting officers, most of whom are not lawyers, for being ‘obsessed’ with minor discrepancies in the evidence of appellants.

The Home Office, he said, suffers from what he called ‘Woolly Hat’ syndrome and is reluctant to see that in real life a person’s situation can change – and that while they might wear a woolly hat in the winter, they may want to wear a Panama hat or no hat at all in the summer. The Home Office mentality, he suggested, would not allow for that change.

Easterman also complained that the Home Office was too ready to appeal tribunal decisions. ‘If they don’t win, they will appeal’, he said and added that the Home Office even appeals in cases where it has made concessions in court.

On the flip side, he said: ‘There are just as many extraordinary arguments run by unrepresented appellants.’

The event, The Citizen and the State: Poor decision-making and the role of the pro bono Bar, considered the extent of poor decision-making by state bodies which forced members of the public to appeal decisions about their entitlement to benefits and other rights, to the courts, often without legal representation due to legal aid cuts.

Highlighting the extent to which civil servants make incorrect decisions, Sir Ernest Ryder, senior president of tribunals cited statistics on the number of successful appeals made against them.

He said that in 2016, 43% of immigration and asylum appeals succeeded, 61% of social security and child support appeals succeed and 89% of appeals before the Special Educational Needs and Disciplinary Tribunal succeed.

Two leading female solicitors share their views on workplace discrimination, why quotas are ‘deeply offensive and absolutely essential’, the effect women have on men’s behaviour, killer heels and kindness.

In the media storm over the unfortunate exchange between barrister Charlotte Proudman and solicitor Alex Carter-Silk, neither party came out terribly well, and the real issue of the challenges faced by many women in the legal profession got lost in favour of titillation and grand-standing.

The First 100 Years — a video history project documenting and celebrating the journey of women in the legal profession — hosted a discussion last week between two eminent female solicitors looking at the problem and how to improve things.

Dame Janet Gaymer, former senior partner at City firm Simmons & Simmons, and Rosemary Martin, group general counsel at telecoms giant Vodafone, agreed that the pace of change has been too slow, but said the legal profession was no worse than others, and was grappling with similar issues as medics and accountants.

The problem of discrimination

Gaymer recounted that when applying for articles in 1969 (six years before the Sex Discrimination Act came into force), she received a rejection letter from a firm stating ‘we are prejudiced against female articled clerks because of some unfortunate experiences in the past.’

She declined to name and shame the firm Proudman-stylee, but said she is considering sending the letter to the senior partner of the firm concerned for its archives.

Fast-forward to 2002, after she had become senior partner of Simmons, she recalled how after being introduced at a drinks party to a male solicitor as the senior partner of her firm, he responded ‘but you’re a woman’.

When coming through the ranks, Martin said it was often assumed that she was the secretary and, as a junior lawyer going into meetings with a male junior lawyer present, she was the one expected to make the tea.

Ironically, said Gaymer, when she was staring out, being female was helpful because there were so few women and she ‘stuck out like a sore thumb’.

‘On the switchboard at Simmons, clients would ring up and say “you have a lady who does employment law” and that’s how they used to find me.’

She recalled how when she became senior partner at the firm, it had to change the signage on the office lavatories. ‘They had were ladies, gentlemen, partners and secretaries’, she recalled, with the partner’s loos reserved for the boys.

While Martin said she has seen ‘clear’ and ‘overt’ discrimination against women when it came to appointment and promotion, more positively she said woman are more confident about their place in the world and that men are more aware of gender in the workplace.

Being a woman, she observed, can positively effect the dynamic of board meetings and transactions, bringing a different tone, mood and content. ‘Being a woman in a very male environment, I’m told by my male colleagues, changes the way men behave – they swear less,’ she added.

Because firms have come to the ‘women problem’ only comparatively recently, said Gaymer, they are still searching for the ‘wonderful solution’ that is going to fix everything. ‘And while they are searching, women are walking out of the door’.

The issue, she said requires a sustained, long-term concerted effort, led by those at the top who are leading organisations.

The impact of employment law

Employment law, indicated Gaymer, has been a mixed blessing. It has been beneficial and helped change people’s attitudes, but at the same time it has meant that ‘women have become a problem — they’ve become a difficult group because they are protected by the law’.

While Martin bemoaned how some laws to help women in the workplace have been applied half-heartedly. ‘Equal pay – where is it? It’s a law; it should be in place – what’s the problem?’

On the thorny issues of quotas to speed the pace of change, the pair disagreed. They are, said Martin, ‘deeply offensive – and absolutely essential’.

‘If you want to make change, you need a law. Don’t expect people to do it out of the kindness of their heart or because they thinks it’s the right thing. You need force,’ she insisted.

‘Because it’s change it’s painful, because change is always painful. So let’s not make it painful for many many more generations, Let’s make it painful for our generation to make it better for future generations,’ she added.

While Gaymer was not persuaded as to their effectiveness, and stressed the importance of appointment on merit.

The secret of success

According to Gaymer, the secret of success lies in the following: ‘You need to be very fit; you mustn’t be ill, you need to be extremely organised, have a good infrastructure and a good partner and above all you need a supportive environment in which to work’.

In addition: ‘You have also got to be ready to fail. Sometimes it doesn’t work and you see women lawyers who are so determined to make it work, when it’s not working. You have to find the right solution for you and your family’.

To that list, Martin adds: ‘You have to enjoy what you’re doing, because if you’re not, it’s so hard anyway to get the whole jigsaw to fit together that, if you’re not sure that it’s worthwhile, you won’t bother. You also need stamina, but don’t grit your teeth if you’re not enjoying it’.

She continued: ‘Be confident – you are better than you think. And take the opportunities — just keep saying yes — it’ll get you a long way.

‘Every step forward in my career has happened by accident, as a result of me saying yes to something that seemed very small and actually opened a door somewhere very unexpected’.

‘Above all be happy,’ added Gaymer.

Killer heels and kindness

 On facing the legal world, in what is still more of a man’s world, Martin concluded. ‘I put on my make-up and I put on my high-heeled red shoes – if I’m wearing high-heeled red shoes when I come to see you, be very nervous, because they’re my killer heels — there’s an element that you put on your tin helmet and you go out there and you fight – in a nice way.

‘It’s important to be kind to be people. There’s not much kindness out there and when you see those moments of kindness you never forget them when they’re done to you,’ she said.

Last Thursday witnessed the pomp and ceremony of the Opening of the Legal Year, or OLY, as it has become known.

The start of the Michaelmas term also marks the end of the Long Vacation for the senior courts – the longest summer holiday enjoyed by any institution – longer even than MPs or pupils at the most expensive and exclusive private schools.

For the two months from 31 July to 1 October, court activity in the High Court and Court of Appeal dwindles to a skeleton service. The Royal Courts of Justice becomes a legal and judicial ghost town, populated only by hoards of tourists struggling to find a court to bustle noisily into.

Throughout the hols the Court of Appeal and High Court do continue to sit for urgent cases, with judges working on a rota to hear cases. I am told that the lack of judicial presence in court, does not mean that all the judges are occupied watching the Test Match, swigging Claret or sailing round the South of France.

The vacation provides an opportunity for them to catch up with outstanding judgments, legislative changes and reading on cases.

I am also reliably informed that its length is merely ‘accident of history’ going back to the old legal terms – Hilary, Easter, Trinity and Michaelmas.

The terms and conditions of appointment of senior court judges are linked with the legal terms. And their conditions of service have deteriorated over recent years, due to pay freezes and pension and tax changes.

The salary of a high court judge is miles below the taxable earnings of a top commercial QC. It is likely that any change to their holiday entitlement would make service as a senior judge even less appealing than many view it now and may accelerate the departure of some sitting judges.

Life on the senior bench is highly pressured and hugely demanding and judges need a break. And a break during the summer holidays also allows for maintenance work to be done without inconveniencing court users and removes the need to juggle cases to fit in with the holiday plans of parties, advocates, judges and witnesses.

But in an age where money spent on the justice system is tight, to say the least, having so money courts standing empty for so long, appears ludicrous. Surely there is a better way of doing things – the courts could be used for some other purpose or the long vacation should be kicked into the long grass.

Gesture politics to compete with front-runner Jeremy Corbyn or something legal aid lawyers can take comfort from?

Labour leadership candidate Andy Burnham will pledge to review legal aid provision and scrap employment tribunal fees.

The former Health Secretary, who came fourth out of five in his party’s last leadership campaign, is set to publish what he describes as a ‘highly personal’ manifesto this week.

In it, he promises to ‘reverse declining access to legal advice for the low paid’ — a trend started by past Labour governments and continued by the Coalition and Conservative governments.

Ahead of the publication, very little flesh is put on the bones of his pledge, but Burnham says he will commission an urgent review of civil legal aid, to be co-chaired by the current Shadow Attorney General and former Legal Aid Minister, Lord Bach, and Yvonne Fovargue MP, former chair of the All Party Parliamentary Group on Legal Aid and former Chief Executive of a local Citizens Advice Bureau.

‘I believe that it is the hallmark of a civilised society that everyone can access justice, defend their rights and receive help in navigating the legal system, regardless of their income.

‘So under my leadership, a Labour government will commission an urgent review of civil legal aid and scrap the unfair system of employment tribunal fees to make sure that everyone can access quality legal advice on social welfare law problems,’ he says.

As you would expect he criticises David Cameron’s government for making access to justice ‘dependent on ability to pay’.

But is this  a rare piece of good news from the man who opposed further privatisation of NHS services, or empty rhetoric to compete with the left wing front-runner Jeremy Corbyn. And in any event, by the time a Labour party next forms a government, won’t it all be a bit too little, too late?

As the strike by criminal legal aid lawyers captures the media’s attention, they have a chance to put some real pressure on the government.

The casual observer may question if the protest action taken over the last three weeks by criminal solicitors over legal aid fees, and expanded today to include barristers, isn’t all just about money.

They may well ask.

After all, while legal aid lawyers are far from millionaires, most earn more than the average national wage. In truth, the strike is about money and it isn’t about money.

When solicitors stopped taking new police station and magistrates’ cases after the second tranche of 8.75% came in on 1 July, they did so stating that solicitors could not ‘properly discharge their professional obligations’ for the ‘derisory rates’ that the Ministry of Justice was prepared to pay.

They have warned for some time, that the cut, which comes on the back of previous cuts, coupled with the contracting reforms, will drive quality firms and lawyers out of business. As a consequence, the standard of representation given to those who need it will drop, increasing the likelihood of miscarriages of justice.

While they naturally need to earn money to pay mortgages, rents, wages, etc, they have argued that is not the size of their pay cheques that they are protesting about. If they give up now, observers may feel their argument has been disingenuous.

How could they be unable to provide a service to the standard to meet their professional obligations three weeks ago, and yet be able to do it now.

The profession should capitalise on the increased media attention that the strike has garnered since the bar has joined in. It’s nearly August – the ‘silly season’ for Fleet Street when news schedules are less full.

If the papers are given stories about the chaos caused in the courts, they will run them, which could ramp up the pressure on Gove to do something positive to stop the strike.

The profession should quit squabbling on social media over who was or was not invited out to play and stop second-guessing what different factions of the sector may or may be plotting, and remember what they all striving to achieve – justice for those who in one way or another find themselves in the criminal justice system.

In his first speech in post, Justice Secretary Michael Gove said he recognised there were two levels of justice in the UK – one for the rich and one for everyone else, and he articulated a desire to change that. I

f he is in earnest, now’s his chance to prove that. He must put his money where his mouth is, or he too may be judged disingenuous.

If he wants a quality justice system, he must be prepared to pay for that. And if he is only prepared to pay for justice-light, he should come clean and admit it.

To encourage him to pursue the right course, the profession must stay united and stay strong, despite the financial suffering that strike action is causing.

It is vital that the Criminal Bar Association in particular, which meets tonight to consider its next steps in light of the solicitor’s revised action, sticks with the action.

All must consider what price they are prepared to pay for justice?

Why the bar should be cautious about the justice secretary’s intentions and unite with solicitors

When newbie Lord Chancellor, Michael Gove, gave evidence to the Justice Committee last week criminal solicitors were almost two weeks into protest action over further cuts to their fees, which were introduced on 1 July.

But you wouldn’t have known that from his performance. In an appearance that lasted just short of 90 minutes, Gove mentioned solicitors once, having referred to the bar numerous times, and in glowing terms.

It is true that the session started 15 minutes after the Criminal Bar Association (CBA) announced the outcome of its second ballot on whether to join the solicitors’ protest. With a turn out of fewer than 50% of the membership, the vote went in favour of action by 55% to 45%.

Gove’s tone demonstrated a marked shift in narrative from that of his predecessor, Chris Grayling. Instead of painting barristers who oppose the cuts as fat cats, he accepted that it was not self-interest that motivated their ‘legitimate concerns’.

He expressed concern that talented young people see the criminal bar as ‘an increasingly unattractive route to go down’ and stressed the need to ensure a ‘healthy pipeline of future recruits to the bar’.

Ensuring a ‘healthy independent criminal bar’, he said, is one of his ‘top priorities’.

The former Times newspaper journalist expressed disappointment with the outcome of the bar’s vote, but put it down to ‘bruised feelings from the past as much as anything else’.

Though the vote indicated a ‘preparedness to take action’ Gove stressed his desire to continue to talk to the bar.

The previous week at his Mansion House, Gove spoke in equally fulsome terms about his determination to ‘take all the steps’ to ensure a ‘healthy and vibrant bar – and in particular a healthy criminal bar.’

Solicitors, who I am reliably informed, undertake 95% of all criminal work from the police station upwards, are understandably miffed by the brush off.

Their action in refusing to take new cases after the 1 July is starting to bite across the country with reports that hearings — including those involving murder cases — have been disrupted and police stations are in chaos.

Gove was not asked about their action and did not volunteer any thoughts before the justice committee. And the line from the Ministry of Justice remains that courts are ‘sitting as usual’.

Since the action began, duty solicitors have been covering police station work. But, following Gove’s failure to note their existence, the leaders of the solicitor groups have indicated they will consider ‘upping the ante’, which could see them stopping duty work.

But as things stand, it could take a while before the strike action causes major disruption. Though duty solicitors are feeling the pressure, there will be defendants who chose to deal with their case themselves rather than wait for the duty solicitor, and the police will doubtless not encourage them to do otherwise.

Unrepresented defendants appearing before the magistrates’ courts on minor matters may take the path of least resistance and plead guilty, leaving only the problem of cases that go up to the Crown Court.

But it will take a few weeks for matters that started after 1 July to reach the higher level. Judges may allow one or two adjournments for unrepresented defendants to get representation, before throwing their toys out of their prams and cases out of court.

Solicitors — as the first port of call for those arrested — should be in the stronger position to the call the shots than the bar. But as it is the bar that still does the majority of Crown Court work, it is they who can cause real trouble for the government.

And Gove will be aware that solicitors need the support of the bar to bring the courts to a standstill. It may be for that reason that he has been courting them so solicitously.

Following the vote, the CBA’s executive threw its backing behind the outcome, despite the fact that most of the association’s top brass oppose action.

However, CBA leaders agreed that the bar’s action should not start until 27 July (though some chambers are already refusing new cases), ostensibly to allow a protocol for how to strike in accordance with professional conduct rules to be put in place.

This leaves a fortnight for the continued talks that Gove wants to take place.

During this time, the bar must be careful not to get lulled into a false sense of security by the Justice Secretary’s flattery and apparent understanding.

It is vital that its leadership does not settle for short-term gain for its members at the expense of solicitors, in the belief that Gove will safeguard their interest in the long term. Don’t be too sure that he will.

Grayling was accused of divide and rule when he ditched cuts to barrister’s fees and pressed on with cuts for solicitors. A cynic might suggest that Gove is playing the game more subtly.

He has shown a common sense and compassion over prison policy that many did not expect. But those policy changes – over prisoners’ books and building a hideous super prison for young offenders – did not cost money.

A U-turn over legal aid cuts will. At the committee, Gove was clear that he has to act within the ‘budget envelope’ and that as the Ministry of Justice is an unprotected department he has to do his part to reduce the deficit.

The bar should be clear about something too – the contracting reforms coupled with fee cuts for solicitors will result in its own demise as firms are compelled to keep work in-house.

Regardless of that, barristers seeking to protect their own position should consider the driving force behind the government’s strategy for legal services – laid clear by the Courts and Legal Services Act 1990.

The agenda of the Whitehall mandarins — who many feel in reality steer government policy — is fusion of the two professions. That is the goal driving the reforms. The urgency to carry them through has merely been hastened by the financial crisis and need to reduce the deficit.

Gove is simply the instrument of the civil service behind him and he may yet need to take his iron fist out of the velvet glove he has worn thus far.