Legal Hackette Lunches with S Chelvan

Over pink champagne, fishcakes and shepherds pie at Inner Temple’s Pagasus Bar, the highest placed lawyer in the Indy’s The Independent on Sunday newpaper’s 2015 Rainbow List, LGBTI (lesbian, gay, bisexual, trans, intersex) activist and poster boy for the Joint Council for the Welfare of Immigrant’s ‘I’m an Immigrant’ campaign discusses the launch of a new group to promote LGBT+ issues at the bar, the need for greater visibility of gay judges and why heterosexual couples should be allowed to enter civil partnership.

High res Rainbowlist picIn a profession that in the eyes of many remains synonymous with pale, stale, conservative, public school chaps in dull suits, Chelvan stands out from the pack – loud and proud.

‘I will wear colourful shirts because it suits my complexion rather than dusky blue’, he states.

It is not just a sense of style that makes Chelvan stand out. In trendy parlance, he ‘self-identifies’ as a gay, black (international classification for non-white) Hindu, with a hearing difficulty – and if that doesn’t tick enough diversity boxes, he grew up in Worthing.

But first — an explanation of his name – his chamber’s website lists him as S Chelvan, but, as he explains, Chelvan is his ‘given’ name used to represent his last name, in accordance with Sri Lankan Tamil tradition. It is prefixed by the ‘S’, which is the first letter of his father’s last name.

He shares a modest room with two colleagues at No5 Chambers, tucked away off Fleet Street, far from its Birmingham ‘mother ship’.

Chelvan’s corner is super-organised, with bookcases bearing neatly filed cases, ordered on ascending shelves according to the tribunal level that each has reached.

Behind his desk a sketch by court artist Isobel Williams, done during his first case at the Supreme Court, AA (Somalia) v Entry Clearance Officer (Addis Ababa).  He was led by Manjit Gill QC in a case that challenged the lack of protection by the immigration rules in family reunion cases to cover non-biological children adopted by wider family members under the Islamic custom of kafala, often after a child has been orphaned.

Chelvan has developed an international reputation in asylum and immigration law, in particular in asylum claims based on sexual or gender identity. In many countries, he bemoans, ‘it is still dangerous to be gay’.

There are 80 countries in which consensual same-sex activity is a criminal offence, and it remains punishable by death in five countries.

As for the UK’s attitude to those fleeing persecution because of their sexual orientation, he recalls ‘the dark days of gay asylum law were 2004-10’. The Home Office operated a policy of ‘reasonable tolerable discretion’.

Where it accepted claimants were gay and would face persecution or death if returned to their home countries, it suggested they could avoid such threats by voluntarily exercising discretion and concealing their sexuality.

‘They could only get asylum if they proved that it was not reasonably tolerable to do so.’

A landmark judgment in July 2010 in HT (Cameroon) and HJ (Iran),  in the cases of two gay men, the Supreme Court unanimously ruled that the policy was wrong.

‘No-one would proceed on the basis that a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution,’ said Lord Rodger, delivering the lead judgment.

From there, the Home Office’s policy moved from one of discretion to disbelief, explains Chelvan. ‘Claimants would be asked degrading tick-box questions to prove their sexual orientation – such as did you wear a condom or did you ejaculate’.

The types of humiliating questions were revealed in a leaked Home Office document in 2014 in The Guardian.

To improve the process for determining the credibility of LGBTI asylum seekers and to make the interviews less like an interrogation, less judgmental and less intrusive, Chelvan developed a model of open-ended, non-adversarial questioning.

Its premise, is that there are several characteristics that are almost universal among LGBTI people that they will be able articulate – difference, stigma, shame and harm (DSSH).

He explains: ‘You realise you are different, you realise that difference sets you apart from the rest of society, which brings stigma and shame. And what makes you a refugee is that you face harm because of that difference’.

His model was endorsed by the UNHCR in 2012 and has been adopted around the world, which, says its creator, is ‘mind-boggling’.

‘The bar gives you the opportunity to do that, to change things – you are not just a litigator – you are taking a lead’.

Despite the strides made over recent years, says Chelvan, there is much still to do. To that end, he sits on two Home Office committees, advising on policy and helping ensure it complies with its international obligations and keeps in step with legal and other developments – although, he notes, it does not always heed his advice.

Immigration and asylum, he says, is ‘such a politicised area of law’ and the Home Office has a perpetual fear that people will abuse the system and too many article 8 – the right to family life — claims will be allowed.

The current moves to codify article 8, designed to restrict its application, he says, will serve only to increase the numbers of people forced to go underground and live in servitude, as the government is trumpeting its Modern Slavery Act.

The expanding lexicon of sexual identity, emerging in the population at large, is reflected in new asylum cases – moving from lesbian and gay to bisexual and, more recently, to address trans and intersex claims based on gender identity.

The latest buzz acronym – LGBTIQA – has the additions, he explains, of queer (Q) – either another word for gay, or questioning – and straight allies (A) – those who support and promote equal rights for the others.

If the world can still be an unsafe place to be an out LGBTI-er, what of the bar?

LGBTI campaigning charity Stonewall has just published its 12th Workplace Equality Index, which features a dozen law firms in its top 100 and at 13th, Simmons & Simmons, highlighted as a ‘Star Performer’ in recognition of its long-standing commitment to creating workplace equality.

Chelvan has been out since university and overtly so in practice – in his applications to chambers he was frank about his reasons for coming to the bar – ‘to change the law in relation to gay equality issues’.

Despite efforts made by groups including the InterLaw Diversity Forum and the Bar Lesbian And Gay Group, he says, prejudice remains and many do not feel safe to come out.

‘Only the other day I heard of someone taken on at a really right-on set, who only felt able to come out after completing pupillage,’ he says. ‘The bar should have been a safe place for them to feel able to be out from the start.’

He understands that for some, sexuality is private, but for others, ‘it’s not about coming out and making a statement that you are gay, but being able to tell your colleagues honestly what you did over the weekend and correctly identify the gender of your partner’.

‘We have an urgent crisis in relation to dealing with diversity, not just in relation to LGBT+ issues,’ he warns, citing the fact that England and Wales appointed only its second South Asian minority ethnic High Court judge last year.

‘We need to do something pretty quickly. I’m not patient enough to wait another 50 years – there are candidates with merit, but because of the message that is being sent out, they are not applying’.

To help hasten the change, Chelvan is involved in a new project to promote LGBT+ equality at the bar.

The forum – FreeBar – initiated by Matrix, Hardwicke, No5 Chambers, 5 Paper Buildings, 3 Hare Court and Stonewall, aims to work with chambers, employers and individuals, be they LGBT+ or straight allies, to promote inclusion and best practice and to celebrate LGBT+ role models and allies.

Its guiding principle is Stonewall’s tag line ‘acceptance without exception’.

‘We aim to work alongside other groups to ensure LGBT+ issues are at the forefront and people feel safe to be who they are in the workplace without discrimination or prejudice,’ says Chelvan.

The group officially launches on 17 February at an event hosted by City firm Travers Smith. For information about the forum and the launch, email info@freebar.co.uk.

Would he like to be a judge?

He can only think of two ‘out’ gay senior judges – Lord Justice Adrian Fulford and the Chancellor of the High Court, Sir Terence Etherton — and says: ‘Things would have to change in the judiciary before I’d feel it was a safe space to do that.’

He adds: ‘There are countless other people ahead of the queue who aren’t applying or getting selected. I want to see a change happening in visibility before I would even consider applying.’

In any event, he gets a ‘buzz’ from the work he is doing now – ‘advocating on behalf of your client’ – whether before the first tier tribunal, Court of Appeal or Supreme Court.

‘It’s not a job, it’s a vocation’, he says, noting that there are two types of barrister – ‘the first instance barrister, who just wants to go to court and win the case, and the appellate barrister, who wants to change the law.

‘I’m not here just to apply the law; I’m here to change it, to empower my clients and a larger pool of people.’

But changing the law can often takes years. ‘My mother used to tell me “God says three things – yes, no or later.” I’ve taken that as my litigation strategy. When the Court of Appeal says “no”, I think “ok, we’ll come back later”.

‘And I’ve found that to work. Sometimes you will lose, but at least you’ve put a mark in the sand that you can come back to later’.

Chelvan views his role as his clients’ legal interpreter. ‘Instead of translating their words from their mother tongue to English, I interpret the words from their narrative to the law.’

A cerebral chap, he regards the bar as being about ‘intellectual curiosity’.

‘One of my favourite philosophers, Francis Bacon, said “knowledge is power” and that applies to the law. If you know your case inside out it really does empower you.

‘I find the weakest point in my case and so long as I can address that, I can build my argument.’

Among the altruism and desire to change the world, inside the flamboyantly dressed advocate is, a bit of a show off.

‘One of my earliest memories is being asked to recite Goldilocks and the Three Bears when I was five years old at primary school.

What I loved about it was not just telling the story, but seeing my friends watching me and listening – and that’s the thrill you get as an advocate. It’s not just speaking; it’s the fact that people listen to you.’

‘I’m living the dream; this is my dream job,’ he says, quickly adding ‘though not the money; the money is horrific.’

Predominantly a legal aid lawyer, he says: ‘Every time there are legal aid cuts I worry about money and about my age debt and paying the bills, but I can’t think of doing anything else.’

He has started doing public access work, taking LGBTI asylum claims from application. ‘That’s been a wonderful insight about the part of the process I hadn’t known about. And it pays, thank God.

‘But, I’m still a jobbing legal aid lawyer and will continue to be a legal aid lawyer because the majority of my clients don’t have any money – they have lost everything’.

He and his junior are even taking one Court of Appeal case on a conditional fee arrangement.

Hailing the importance of the solicitor-barrister relationship, he says: ‘I’m very lucky to work with solicitors who, even with ridiculous slashing of legal aid, will go above and beyond the call of duty for their clients’.

During his pupillage, which he completed at Doughty Street and Garden Court, he went to Harvard to do a masters degree as a Kennedy Memorial Trust Scholar, after which US law firm opportunities arose.

He rejected the possibility of a $120,000-a-year gig to come back to the UK and be a legal aid lawyer.

He has no regrets about the decision. ‘I do the same hours as my friends across the pond, but I don’t have two apartments overlooking Battery Park’.

On the flip side: ‘My friends in the States are not doing work that they are passionate about and they don’t get cards saying “thank you for saving my life” – which is priceless’.

One of the reasons he his passionate about his clients cases is because he has experienced rejection and ostracism as a result of his sexuality, growing up knowing that he was different, but not being able to express it.

‘I realised I was different when I was a child. When my brother was seven, he had a birthday cake in the shape of a football pitch. When I was seven I had a cake in the shape of a number seven decorated with pale pistachio green icing with pink roses.

‘When he was nine, he had an R2D2 cake; I had a cake with pale blue icing and marzipan roses and butterflies. Did anyone think I was gay? No, but I wasn’t conforming to the hetero-normal narrative. Years before sexual awakening you realise you are different.’

Chelvan says he realised his sexual identity at 14. During his school years section 28 of the Local Government Act 1988 banned schools promoting homosexuality or teaching the ‘acceptability of homosexuality as a pretended family relationship’. Indeed, it was not repealed in England and Wales until November 2003.

‘I didn’t know about that law, but I knew there was something that I couldn’t speak to my English teacher about, but she guessed and recommended books for me, like those by Alice Walker. It was the first time I’d ever read about a same sex relationship and I was able to identify with someone.’

He led a ‘traumatic double life’, outwardly conforming to what was expected of him, but knowing inside he was different from that outward impression.

He came out to his family at 21. The following day his mother gave him an ultimatum – be celibate for five years and then they’d marry me off to some girl or leave the home.

‘So, I was kicked out of home. My stuff was sent in dustbin bags to my halls of residence and I received a letter via the family solicitors saying I was formally disowned.’

It was, he recalls, a ‘dark and difficult’ part of his life. But he had already come out to his friends at Southampton University, who were hugely supportive.

‘As Armistead Maupin says, you have two types of family – your biological family and your logical family. Thankfully, I definitely have my logical family who accept me and have always been there and who I love dearly’.

During his time at university, the age of consent for homosexuals was still 21, gay men and lesbians were banned from serving in the armed forces and there were no anti-discrimination laws.

‘I knew I wanted to do something to change my world.’ He even tried to get the armed forces excluded from the university’s careers fair.

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Born in Sri Lanka, Chelvan came to the UK when he was four. Being the eldest son, he was expected to follow his mother into the medical profession. But after doing work experience with a barrister when he was 14 he told his parents he wanted to become a barrister.

They suggested he qualify as a doctor and then switch to law. Ultimately he gained a first class degree politics and law and studied for the bar with a scholarship from Inner Temple.

Chelvan has achieved much success – he was voted barrister of the year in 2014 in the Legal Aid Practitioners’ Group’s Legal Aid Lawyer of the year awards and went straight in at position 43 out of the top 101 influential LGBTI individuals in the UK in the Independent’s Rainbow List (formerly the Pink List) last year.

At 41, he seems in a place where he is completely assured and comfortable in his skin. Such openness and honesty is unusual and appears to embolden and empower him.

Some may mistake his assuredness and tenacious advocacy for arrogance and he accepts: ‘I’m marmite – some members of the bar are not attracted to my personality and react negatively to me being overt and being who I am’.

But he is quick to pay tribute to those who have helped him, particularly his chambers and his ‘inner circle’, not least his husband, Mark, whom he describes as the ‘most wonderful man on the planet’.

They formed a civil partnership in 2006, and converted it to a marriage last year – both ceremonies taking place at Inner Temple –wearing Neru jackets embroidered with peacock feathers for the first (in Hinduism, peacocks symbolise immortality) and suits for the latter.

The extension of marriage to same-sex couples, ‘gave me goose bumps’ and he, says, he could not understand the opposition to it. ‘No one was forcing a straight person to get married to a person of the same sex. Just because I would have equality doesn’t discriminate against you’.

Making the upgrade was important to him as it gave him equality with heterosexual couples and removed the sense of ‘disenfranchisement’ he had felt.

‘When someone asks if we are married, we no long have to qualify the answer by saying “technically it’s a civil partnership”’.

He approves of extending civil partnerships to non-gay couples. ‘Equality is equality; you can’t redefine equality.’

What else does he want to do?

‘I want to have kids. I knew I wanted to be a dad before I knew I was gay. Mark and I hope to have kids one day through surrogacy – one fathering each. He will make the most amazing co-parent.’

Professionally, some might consider that a black silk jacket would be a deserved addition to his wardrobe.

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Legal Hackette Lunches with Dominic Grieve QC

Over slow-braised pork belly and sausage cassoulet the former Conservative attorney general now charged with chairing the Intelligence and Security Committee (ISC), discusses the legal justification for air strikes on Syria, his suspicions over changes to the ministerial code and why the government thinks lawyers are from the planet Fark.

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Having been unceremoniously sacked in David Cameron’s last reshuffle, Dominic Grieve QC appears to be embracing the freedom to speak to his mind and pleased to have found a new role chairing the ISC following Malcolm Rifkind’s departure amid allegations of cash for access.

Grieve is keen to stress the corporate nature of the nine-strong committee, which he points out is not dominated by government backbenchers. ‘There are only four Conservatives on it, three Labour, one SNP and a cross bencher from the Lords.’

It has, he says, a ‘very clear scrutiny remit’ and has identified three weighty areas of interest: the Draft Investigatory Powers Bill (on which it will work closely with the joint bill scrutiny committee); drone strikes; and the historical rendition and detention involving the UK with the United States.

‘It’s early days, but my impression is that we’re working together well. We’ve started off an induction period, getting to understand the work of the agencies, and that’s brought us together. And we’re just starting to take evidence looking into the Investigatory Powers Bill.

The Investigatory Powers Bill

The controversial bill, dubbed the snooper’s charter, and which allows the security services to intercept communications between individuals, has been significantly watered down from the original, to include the requirement for judicial authorisation.

Under Rifkind the ISC prepared a report on the initial bill last March. ‘We’re going to want to compare what was recommended with what the government is now proposing,’ says the new chair, adding that in many places, the government has taken up the recommendations of the previous committee.

‘Where it hasn’t, we’ll probably want to look if there was a good reason for not doing so or whether we agree with the original committee’s view, or whether things moved on’.

But he adds: ‘I detect, quite independently of the committee’s work, that some of the polemic over this piece of legislation has died down a bit. That’s not to say there isn’t a lot of detail to be looked at or that it isn’t controversial. It is controversial. Anything that gives powers to invade privacy and confidence is going to be controversial’.

He acknowledges the concerns raised by the Bar Counsel over legal professional privilege (LPP). But notes: ‘If you suspect that a communication is in order to further a criminal enterprise, whether it’s terrorism or serious crime, LPP doesn’t apply to you. If you’re using your solicitor or lawyer as a vehicle for committing crime, there is no privilege.

‘The difficulty has always been that if you strongly suspect that’s what is happening, the only you can find out if the privilege has been breached is by accessing the material’.

He suggests that a ‘whole series of safeguards’ have already been put in place, but accepts it is ‘an area that needs very close attention’.

Although, he adds: ‘The idea that some have put forward that you can simply treat this area as a no go area under any circumstances is unreasonable.

‘I’m afraid you’ll simply find that people find crooked lawyers or lawyers who share their ideological viewpoint in order to do their bidding, and in which case we’re going to be left poorly protected.’

He agrees that those who are likely to make confidential communications ought to have a special level of protection, but asserts that the current code guidelines for the intelligence agencies already make clear that that exists. Though he suggests: ‘It can be beefed up and the bill goes some way to doing that.’

Drone strikes

It is, he says, impossible to answer the question of whether, if he were still attorney, he would have advised the PM that the drone strikes were lawful.

But he is clear that Article 51 of the United Nations Charter provides a legal basis for taking action against individuals, be they British nationals or foreigners, who are operating out of ‘ungoverned space’ in a foreign country and are threatening you, your countrymen or your allies.

‘It’s absolutely crystal clear – you have a right to self-defence,’ though he suggests it is ‘desirable that you should try to get a UN Security Council resolution to deal with the matter’.

Explains Cameron’s for chief law officer: ‘The prime minister has made clear that the basis on which they were launched was the right to self-defence and the imminence of the threat.’

While accepting that, he says the committee is keen to look into the intelligence base behind the decision to make the strikes against the two men from Wales and the recent case of Mohammed Emwazi, aka Jihadi John.

‘I hope we will be able to do that and we will try to publish a report. But as with all reports by the ISC there is always the question about how much can be made public. But we will do our best.’

The legality of air strikes on Syria

As with the drone strokes, Grieve states: ‘I never thought that the issue of taking military action in Syria against Daesh/IS raises complex legal problems provided the factual basis is there for it.’

He is ‘comfortable’ with the legal basis, provided it is founded on the facts, which require that there is an ‘imminent’ threat and that the measures being taken to meet that threat are are ‘necessary and proportionate’.

Following the Paris atrocities, he notes that the UN Security Council has backed a resolution, authorising all necessary measures to deal with Daesh/IS.

‘That is in fact a lawful authorisation to take military action,’ he suggests, adding the caveat that it ‘doesn’t give you a blank cheque to do anything you like’ and raising the need of having a long-term strategy to follow any action.

‘We have examples in recent history of having a perfectly good legal base for taking military action, but at the end of the day the military action has not lead to some of the hoped for consequences.’

He cites the example of Libya. ‘There was never any question that the military action against Gaddafi to stop him slaughtering his own citizens had been authorised by the UN. But we also have to recognise fours years down the road that, although Gaddafi is gone and he’s no longer threatening his own citizens, Libya is not in a good a place.’

In insists: ‘That doesn’t mean that the decision taken was wrong. I still think it was justified. If we hadn’t taken military action against Gaddafi he would have killed several thousands of people. Unfortunately many thousands of people have been killed by others since.’

He will be supporting the government in the vote on taking military action, but stresses, that although such action is justified, it is not a solution to the problem of IS.

‘I think the House of Commons is looking for the prime minister to give some indication of a strategy for dealing with the problem. But in fairness to the prime minister that’s a very difficult thing to put together.’

Rendition

When considering rendition and detention, and the UK’s cooperation with the US, Grieve stresses the ‘historic’ nature of the issue.

‘In my time in government as attorney general I never had any reason to think the intelligence services were acting unethically. If anything, I was constantly impressed by their high ethical standards.’

But, he notes there is ample evidence already in the public domain that gives rise to ‘disquiet’ about what happened in relation to the UK’s involvement with the United States between 2001-07 and ‘whether in the process we may have allowed ourselves to participate in, or to be dragged into, practices we would have regarded throughout that period as being unacceptable.’

He is alert to the demand from certain corners for the matter to be dealt with by a judicial enquiry, which he states people are entitled to argue for. But he asks that they wait and see what the committee has to say first.

‘The committee’s been set a remit and I don’t think it’s one that’s improper for us to pursue.’

The chair is also conscious that some, particularly those who claim they were victims of the process, are reluctant to participate [such as British resident detained in Guantanamo Bay for 14 years, Shaker Aamer]. Accepting their position, he nonetheless encourages them to give evidence.

Taking part in the committee’s enquiry, he reasons, would not do them any harm or preclude them from seeking another form of enquiry if they are not satisfied with the committee’s conclusion.

Security services

The committee has also set itself the task of considering more broadly the role of the security services. Whether they have sufficient powers to counter the evolving threats, he says, is ‘a difficult question’.

But he has not formed the impression that they are hungry for extra powers, even after the incidents in Paris. And he notes the home secretary’s refusal to accede to Labour calls that the Investigatory Powers Bill be fast-tracked.

The rush to legislate to introduce oppressive pre-charge detention seen in the mid-2000s, he suggests, is absent at present.

‘Post 7/7, I was very much of the view that everyone lost their heads a bit. It’s understandable – governments feel they’ve got to be seen to be doing something and the easiest way of doing that is by legislating, but that’s not a very good idea.’

One area where the security services are keen for progress, he says, is the Investigatory Powers bill. And, he asserts, their desire is ‘with good reason’.

‘The Regulation of Investigatory Powers Act 2000 is out of date; it’s not transparent and it creates difficulties which shouldn’t be there. The agencies are immensely keen to have a new structure and I think they should be in a position to get it.’

The committee’s programme, he indicates, is likely to take keep it busy through to the next parliamentary session and possibly the summer of next year. But he says there are other things he would like to look at – ‘the services more broadly and what I would call good house-keeping, which tends not to be so interesting to people, but actually is part of the committee’s job – are we getting value for money, what are the diversity policies like and how are they shaping up?’

Human Rights Act/British bill of rights

The government’s desire to introduce a British bill of bights and alter the status of the European Convention on Human Rights (ECHR) is one close to Grieve’s heart. His strident opposition to the proposals cost him his job as top law dog.

A copy of the proposed bill was apparently leaked to The Sunday Times earlier this month. Where it came from, Grieve is unsure, but he says there are thought to be internal government drafts circulating.

The content of the leaked bill is much watered down from the withdrawal from the Convention originally mooted. In something of a fudge it proposes that the UK remain a signatory, but that domestic judges are not bound by decisions of the Strasbourg court.

‘I have the impression that the government has begun to realise that its proposals are fraught with difficulty.’

He identifies two key problems. ‘The first one is that if you are going to create a bill of rights, is it your intention to create incompatibility with the convention?

‘Of course you can create incompatibility with the convention, but if you do, then the international consequences of doing it are very considerable. And the government may be coming to realise that, for all its imperfections, the convention is very important.’

He points out that it was only last week, in response to a question from Jeremy Corbyn about putting human rights experts in British embassies, that the prime minister declared the promotion of human rights internationally to be a key strategic objective of the UK.

‘If you’re promoting human rights internationally, how do you do that if the UK is in persistent breach of an international legal obligation that has probably done more than any single other thing on our planet to improve human rights?’ asks Grieve not quite rhetorically.

The second, ‘more parochial’ issue, he suggests, concerns the devolution settlements of Scotland, Wales and Northern Ireland, which are all underpinned by the Human Rights Act and the ECHR.

‘How do you legislate to include those without breaching the spirit and, actually I think now, the letter of the devolution settlements?

‘I always thought that this was going to be a very serious problem. You either have to take them with you or you legislate against their consent.’

He is unsure how the government will overcome this. ‘You’ll have to ask the question of government ministers, but I doubt very much you’ll get an answer.’

He questions whether the government intends the Convention to be the basis for the bill of rights, with different ways of implementation.

It has, he notes, been suggested for example that the clause in the HRA about read-down should be abandoned, or that the Rome declarations of incompatibility should be changed.

‘Another  proposal is that you tweak or gloss the text of the convention in its entirety, like article 3 (prohibition from torture) or 8 (right to family and private life) – in which case you have to ask the question to what extent you can do that and stay compatible with the convention.

‘These are all possible, but they start making it much more cumbersome to work the system domestically,’ suggests Grieve.

The thorn in the government’s side, says he does ‘not quite understand’ what legislating for parliamentary supremacy – a proposal in the leaked document – means.

‘Parliament is already supreme. As we’ve seen with prisoner voting, if parliament doesn’t change the law, the law stays as it is despite the fact that the ECHR has said something should be done about it.’

But, at the same time, where there is an incompatibility, he asserts, the government has a duty to try to resolve it. ‘That means either pulling out of the treaty obligation altogether if they don’t wish to resolve it, or initiating a measure to bring about compatibility, by changing the law.’

He continues: ‘What I don’t like about what’s been going on is the hint that the government is trying to find a justification for failing to try to meet its international legal obligations.’

He is ‘a bit suspicious’ about the supremacy of parliament proposals and ‘a little bit puzzled’ by the government’s ‘completely inexplicable’ decision to change the ministerial code to remove the reference to international legal obligations.

The Cabinet Office has made clear that, despite the redraft, the responsibility to respect international legal obligations remains the same. But, says Grieve, ‘the fact that they played around with the wording does strike me as very odd’.

He suggests the change may have been made so that ministers are not reminded so frequently by civil servants of the need to respect international legal obligations.

‘Having it in black and white on the minister’s desk is not a bad thing.’

Some international legal obligations, he explains, are capable of interpretation by international tribunals, but once they have been interpreted, the government has an obligation to follow that interpretation.

Though he would not go as far as Lord Kerr, in his dissenting judgment in the benefit cap case, in which he suggested ‘rather startlingly’ that the court should give direct effect to international legal obligations on the basis that the government must have meant what it said when it signed up.

Grieve dismisses Kerr’s ‘pretty radical’ view that would ‘rather blow open our dualist system of international and national law’.

Shuffled out

Grieve told the BBC in July 2014 he was ‘sad’ to have lost the AG job that he had held for four years. Though he did not go into politics with the ‘intention of being niched in semi-legal roles,’ he said he was happy to have to had the job.

And if future ministerial opportunities came his way, he would be ‘happy to have them’, though he is ‘slightly sceptical that is likely to happen’, due to the ‘degree of variance’ between him and his colleagues over the ECHR.

Brushing off the suggestion that he is the only principled person in the Tory party, he states there are plenty. ‘All political parties can only operate by being, to an extent, broad-church coalitions of interest. You do have to adjust your views to accommodate your colleagues.’

But, he says: ‘There does come a point where, if you think they’re doing something daft and unjustified, that it’s a red line. For me what they appear to be doing with the ECHR is a red line.

‘The prime minister knew that and I think that’s why he got rid of me. Indeed his press officer was kind enough to say that was the reason – 48 hours after I left.’

He adds, with a hint of disappointment: ‘So I think we can be satisfied that that was the reason why I went, even if he himself [Cameron] never told me that at the time I went.’

With humility, he says: ‘I’m sorry for it. In a sense it’s an admission of failure – I have failed to persuade him.

‘But on the other hand it’s liberated me to say what I like’.

During his time in government, Grieve says, he never considered resigning despite differences of opinion. ‘We were never at a point where there was an issue over which I might have had to resign.

‘Clearly, it was apparent to me that there was a likelihood that we might end up with an insoluble conflict. I think I had perhaps rather thought that there might be some more discussion on the subject before we came to that point.’

The role of the Lord Chancellor

Grieve skirts the question of whether he would have liked the role of justice secretary and lord chancellor. The latter post he does think needs to be held by a lawyer, but by ‘somebody who has an understanding of how the law works’. And the present incumbent, Michael Gove, he believes has a ‘very instinctive understanding’ of it.

And Gove’s understanding makes him [Grieve] ‘optimistic’ that he [Gove] will be able to manage the relationship with lawyers who raise policy issues.

There is no ideological aversion to lawyers, he says, rather a lack of understanding of the law’s importance. ‘One of the difficulties he [Gove] undoubtedly has is that lawyers are becoming sort of aliens from another planet. We pop up and say to government “this doesn’t feel very good to us” and they look at us if though we’ve come from planet Fark.’

While there are ‘plenty of civil servants and colleagues’ who understand the importance of the law, he suggests that 40 or 50 years ago there were many more lawyers doing roles in government.

‘I sometimes worry that there is a great divide between people who have some understanding of the way the law works and the importance of operating within in a legal framework and people for whom, although they may be outwardly deferential, don’t always see the point’.

It’s not that he thinks there is any ‘great crisis,’ but he goes on: ‘Is there less understanding than there was 30 years ago? I think probably yes – because there are fewer lawyers in government and above all fewer lawyers who have experience.’

Harking back to the days of Margaret Thatcher – ‘a stickler about legal propriety’, he observes: ‘She may well have been frustrated and irritated and angry, but she understood legal principles had to be upheld. I’m not sure things are the same way now.’

Background

Born in 1956 in Lambeth, South London, Grieve was the son of barrister and Solihull MP, Percy Grieve QC, and Anglo-French mother Evelyn Mijouain. He went to Westminster School and read history at Magdalen College, Oxford before turning to the law, which he says was ‘a bit of a fall back’.

Uncertain what he wanted to do, though ‘pretty sure’ he wanted to eschew a 9-5 office job, the city or banking, he tried for Foreign Office, but after taking the exams, was not accepted.

The need to earn a living doing something that could be combined with his interests in politics and his father extolling the merits of self-employment, put law in mind.

After Oxford, he did a diploma in law at Central London Polytechnic (now the University of Westminster).

It was, he recalls ‘rather learning by rote in those days’ and while he ‘quite enjoyed’ his legal studies, he ‘didn’t get carried away with it’ and only really started enjoying himself when he started appearing in court.

Called to the bar by Middle Temple in 1980, he always had politics in mind and became a local counsellor within a couple of years of starting out.

Pursuing his political ambitions, he was selected to fight an ‘unwinnable seat’ in Lambeth at the 1987 election. Coming second served only to fuel his parliamentary ambitions and he tried, but failed, to get a seat for the 1992 election.

Despite disappointment at the time, he says, it was a ‘very good thing that it happened’ because the next five years at the bar were ‘rather transformational’.

‘My practice, which had been interesting – diverse, but I don’t think particularly punchy – suddenly started to take off. I had changed chambers and started to specialise in health and safety and environmental law – and I really started to enjoy myself.

‘I had a period from about 1993-97 were I was always very busy. My earnings were going up and I thought this is a new world.’

Things were going so well that when, despite his efforts to do so, he initially did not get a seat to fight in the 1997 election, he announced to his wife (barrister Caroline Hutton) that was giving up all ambition of going into parliament to concentrate on his legal career.

‘She was very relieved,’ but a week later he became the candidate for Beaconsfield and was elected with a majority of 13,987 votes.

Grieve is measured, courteous and assured in a quiet and understated manner. He is, he says, ‘interested in what makes human society successful’ and in community cohesion, chairing the Citizens UK commission on the involvement of Muslims in public life.

‘I think that goes back to my time in Brixton, which exposed me very much to the world of a diverse UK.’

Brought up in a ‘rather more compartmentalised environment’ he had not paid a great deal of attention to the issues that surrounded multiculturalism and what the increasingly diverse and pluralist UK needs to do be a ‘successful country’.

His Christian faith – he is a practising member of the Church of England – to a degree informs what is does and makes him ‘accountable’ though he is quick to state that ‘faith doesn’t give you a monopoly on wisdom’.

A busy politician, he still tries to make time for his other interests, which include running, walking, mediaeval architecture and collecting oriental rugs.

With that, our lunch in Portcullis House’s ‘Adjournment’ café is adjourned. He has to meet a constituent keen for civil partnerships to be extended so that she and her sister can enjoy the tax and inheritance benefits – a cause with which he has sympathy.

Legal Hackette Lunches with Sir Henry Brooke

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Legal Hackette Lunches with Gary Bell QC

mqnRrlXa_400x400Within sight of where he used to sleep rough, the convicted fraudster and former football hooligan, who became a criminal silk and hosted a TV series talks about his old chum Michael Gove, the lawyers’ ‘futile’ strike action and ‘venal’ solicitors.

An article about Gary Bell QC in The Spectator, penned by his friend James Dellingpole, described him as the ‘rudest man in Britain’ and ‘exceedingly fat’.

So I was pleasantly surprised by the not-so-fat and hugely courteous gentleman who pitched up for lunch at the Fields Bar and Kitchen in Lincoln’s Inn Fields.

His entry in Who’s Who at the start of his autobiography, Animal QC: My Preposterous Life, gives away a little of his background, listing his career as coalminer, lawnmower mechanic, forklift truck driver, fireman, pork pie production line worker and homeless drifter, before stating that he was called to the bar by Inner Temple in 1989.

Before what he describes as a ‘Kafka-esque metamorphosis’, Bell was born in Nottingham in the 1960s and destined to follow his father Terry into a life down the pits.

In a truncated, potted history of his early life (a longer and more entertaining version can be read in the pages of his book), Bell recalls: ‘We lived in a condemned slum in St Ann’s. When they knocked it down, we had to move to a village where there was a new colliery, with lovely housing. We had an indoor loo – it was a massive shock and a lovely pleasure.’

Despite being offered a scholarship to the private Nottingham Boys’ School — which he had to turn down owing to various complicated family reasons — Bell left school at 16 without taking exams.

He proudly highlights an extract from his school PE report — one of his best subjects – which is reproduced in the book: ‘Has succeeded in making a thorough nuisance of himself this year and has made no progress whatever.’

Bell received no career guidance from either his parents or school. ‘Everybody went down the pit, so there was no point dwelling on any other ambitions and aspirations’.

After leaving school, he scuttled through a number of short-lived jobs. ‘I was a coal miner for days; I was really crap at that. I became an apprentice mechanic and got the sack after three days for being really crap. I became a forklift truck driver in a pet food warehouse and I did that for two years. Then I joined the fire brigade, but when I was waiting for my training I got in a bit of bother with the police and ended up getting arrested for fraud’.

Working temporarily for a fruit machine company, the ‘enterprising, but directionless’ Bell sussed that he could earn more money playing the machines using a 10 pence piece attached to a wire.

Although not a hugely serious matter, he received a six-month sentence, suspended for two years after pleading guilty to conspiracy to defraud, the conviction lost him several jobs and could have scuppered his later ambitions for the bar before it had even begun.

Quitting his job at the pork pie factory, Bell bought a tent and headed for Europe in search of ‘fame and fortune’. Finding neither, he eventually returned home and, aged 20, went back onto education – to do his O and A-levels with the aim of becoming a barrister.

Pursuing a career in law was not something to which Bell had given a great deal of thought. ‘I just saw a bloke driving a Jaguar that I liked when I was young. He stopped outside an office that said ‘Solicitors’ and went in. That was a long time before I decided I wanted to be a lawyer. I just thought being a barrister sounded a good thing to be’.

He adds: ‘I still think it sounds good. It’s sometimes not that good, but it still sounds good. It’s a very good career and it’s been very good to me’.

His mother’s reaction to her son’s decision was: ‘A barrister? You? People like us don’t become bloody barristers. Just get yourself a steady job, and then you can settle down and get married.’

Undeterred, the young Bell gained three A-levels – B in history, C in law and C in communication studies, and successfully applied to study law at Bristol University (as with much of his life events, there is a story behind his getting in).

It was during the summer after his first year, that Bell’s metamorphosis took place. He consciously dispensed with his Nottingham accent, with its flat vowels and dropped ‘hs’ and ‘gs’, and swapped his stonewashed Lee Coopers and white socks for the de rigueur Sloane Ranger rig-out.

Challenged to mimic the voice of his past, he makes a fair fist before slipping back into the RP voice he intones today. ‘I ‘ave to fink abou’ every word I say and gerrit right. It’s ‘ard, ‘cos I’ve been not talkin’ like this for now for abou’ twenny-eight years’.

Gaining a 2:2 in law and after a period employed at a US law firm, the would-be advocate attended an interview at the Inner Temple to discuss his application for the bar – necessitated by that criminal conviction.

After being assured that his two referees were aware of the conviction, the panel of benchers welcomed him to the Inn, stating: ‘Everybody is entitled to a second chance.’

During his time at bar school and not for the first or last time, Bell found himself sleeping rough – one spot that he favoured was in Lincoln’s Inn Fields – he would return to it during his pupillage.

At times ‘bloody freezing’, sleeping rough, says Bell stoically, was not ‘the biggest encumbrance’.

‘Other people had absolutely no hope, but I was making my way up in life to become a silk hopefully.’ There was, he says, never a point when he felt he was not going to make it. And that drive and self-belief has not left him.

Having made it to the bar following countless serendipitous events on the way and no little endeavour, he has pursued a successful and eventful career and took silk three years ago.

On the posh-ness scale, he ranks himself ‘bog standard upper middle class’. But he doubts whether someone from his unpromising background could follow in his footsteps today because of the lack of grants and the need to pay tuition fees.

‘Opportunities have gone a great deal because paid pupillages have meant there are far less pupillages around and those that are will go to those who are the “right sort” — people who are connected.

‘It’s very difficult for anybody from my background to come to the bar,’ which, he laments, will result in the profession ‘losing its mavericks’ who tend to come from unorthodox backgrounds.

He continues: ‘The bar’s always been terribly proud that it has a bigger percentage of people from ethnic minority backgrounds than the other professions, but a lot of them are Sri Lankan maharajas and African princes. Show me some working class Indian and West Indian kids – there are some, but very few, and there will be a lot fewer now’.

To improve the situation, he would take a leaf out of Labour leader Jeremy Corbyn’s book and abolish tuition fees completely. ‘It [education] is a right and people should be entitled to education as far as they can go,’ he reasons.

But his advice to aspiring criminal barristers is ‘don’t – because the profession is very difficult and society is very different now.

‘So if you do come into it, don’t have the same expectations and aspirations that I had,’ he cautions.

It was during his Bristol days that Bell got to know his ‘mate’ Michael Gove – now justice secretary and Lord Chancellor. Recognising that he ‘stood as much chance of getting a first as of joining the Chippendales,’ Bell threw himself into debating as a way of demonstrating ‘outstanding ability’.

He often found himself up against Gove on the Oxford University team, and does not recall ever beating him.

On his old pal, Bell states: ‘He’s a very amusing fellow, he’s extremely eccentric – he just is, he’s bonkers, but he’s very clever. He’s quite unguarded for a Tory, but he’s lucky in that he’s a conviction politician so he’s prepared to repeat it anywhere’.

Bell was not surprised that his mate became Lord Chancellor. ‘I was more surprised he didn’t become prime minister,’ he says.

Gove, he says, is ‘pretty approachable’. They see each other ‘pretty often’ and Bell does take the opportunity to talk to him about life at the criminal bar. And he adds, he is sometimes ‘used as a bit of a conduit by the Criminal Bar Association’.

He has faith in his chum. ‘I have to – nobody else is going to help us.’

Gove, he says, ‘gets it’. ‘I think he’ll be very good, within the confines of the budget envelope. I don’t think he’s got any power to go to George Osborne and say “you can’t hit the bar or solicitors anymore; you’re going to have to take it off nurses pay.’

Whether there will still be an independent criminal bar in five to 10 years time, he suggests, depends on his old debating adversary. Naturally, he hopes there will be.

‘I hope under Gove it won’t end. I hope it will strengthen’.

The biggest threat to its existence, he asserts, is not the two-tier system for solicitors’ contracts, but a situation that has existed for some time — the increasing use of solicitor higher court advocates (HCAs), who, he says, are insufficiently qualified and ‘not up to the job’.

‘If I wanted to be a dentist and decided to set up as a dentist tomorrow, I should think that the government would have something to say about it, like “why are you a dentist; you’re not qualified?”’

HCAs, he rates, as ‘rubbish’. ‘I’m sure they’re nice people and are nice to their children. I’m sure they do their best for their clients. Just the same as, if you chose me as your doubles partner in tennis, I’d do my best, but don’t rely on me hitting any top winners.’

He also describes the HCA qualification as rubbish. ‘The higher rights course is just stupid. I know people who’ve conducted major trials who’ve done nothing other than a bail application’.

If you want to be a barrister, he stresses: ‘There’s a way of doing it – which is qualify as a barrister – go to bar school, do your pupillage, get tenancy and make your way up. It’s not easy, but if you’ve got the ability and the drive, you can do it.’

The majority of solicitor HCAs, he suggests, are ‘failed barristers – who either started at the bar, but never got pupillage or tenancy, and for good reason, or who did but then found that they couldn’t make a living because they were useless.

‘So they go and work for these solicitor’s firms as very low paid HCAs and because the solicitors have got the ear of the client they can always persuade the client that this absolutely crap person that they employ is the best person to conduct their case.

‘They are the best person from one perspective — it’ll optimise the earning capacity of the solicitor’s firm. And if that means that the client has to go to prison for a few years, that’s not really a problem for the solicitor – at least they can buy another Aston Martin.’

Bell hopes Gove will ‘do something to stop solicitors making decisions about people’s liberty and the quality of their representation based upon their own financial interest.’

His ire is not directed towards HCAs themselves, but the firms that compel them to do higher court advocacy. ‘It means that venal solicitors will earn a lot more money. It’s greed; it’s avarice, which adds to our public relations disaster –people can see us being venal and that’s a perfect example of it’.

He is pretty confident that his words won’t get him de-briefed by solicitors who instruct him. ‘If there are any solicitors that read this who employ HCAs, they can fuck off anyway, because they’re destroying both professions’.

The strike action, taken by both solicitors and barristers at a time when Gove was engaging with practitioner groups, Bell describes as ‘absolutely useless’ and futile’, particularly as it was during the summer — the quietest time of year for the courts.

Though he did join the picket line. ‘I know I’m from Nottingham and we’re traditionally scabs up there, but I stood firm alongside everybody else’.

But he says: ‘You’re not going to win the hearts of the minds of the public by saying “more money for barristers”. And all the stuff about commitment to justice – it may well be right, but it’s really about a commitment to make sure that barristers and solicitors are paid enough to do their jobs, which you can understand”.

He continues: ‘A few less Burberry handbags would have been good on the marches. I don’t think that the public get it at all, from the barristers’ point of view and I don’t think the Socialist Workers’ Party are going to dust off their banners and start marching down Park Lane saying “more pay for barristers”.

He had harsh words for the ‘venal solicitors’ who took advantage of the situation for their own gain and nicked others’ work. And the Public Defender Service, drafted in to help with case in a couple of areas, he characterises as ‘a fantastic retirement fund for some silks and juniors who can’t make a living at the bar’.

‘They can’t make a living at the bar for the same reason that I can’t make a living as a model – I just don’t get the engagements. I don’t understand why – I think I’d be fantastic’.

HCAs get a tiny bashing in his book too. Elsewhere it provides an entertaining romp through the highs and lows at the bar. From his first appearance before the Hampstead bench, when he was rendered ‘almost dumbstruck’ at the ‘awesome responsibility’ of his task – a mode of trial hearing — up to the point where he received the email telling him that the Queen had approved the Lord Chancellor’s recommendation that he be appointed a QC.

Showing the softer side of the fearless defence advocate, Bell states: ‘I am not ashamed to say that I burst into tears.’ In between, he has also been an award-winning stand-up comic and a TV presenter.

Finishing his diabolo pizza, Bell sums up his ‘preposterous life’ in the words of Mr Crocker Harris, in Terrance Rattigan’s The Browning Version: ‘I got what I deserved. No more, no less.’

Legal Hackette lunches with Jon Black

dqvCIt_webIn a hipster bar, a general in the battle against legal aid cuts and contracting reforms slams solicitors’ firms for offering cheap ‘McJustice’ law. But he’s convinced the fight with the government can be won

Jon Black, the wry-witted, straight-talking president of the London Criminal Courts Solicitors’ Association (LCCSA) and partner at BSB Solicitors, squeezes lunch in the middle of a four-hour meeting and a hearing at the Bailey.

The monster pow-wow is with sister organisation the Criminal Law Solicitors’ Association (CLSA) at Kingsley Napley, ahead of the second meeting in two weeks with the Ministry of Justice to discuss the legal aid cuts and introduction of dual contracts.

He texts to say he will be a few minutes late as the meeting has reached a ‘crucial stage’.

It’s no problem — I have a well-mixed Bloody Mary to keep me company and am enjoying the lounge jazz being pumped out by the Clerkenwell & Social – a trendy bar in St John’s Square with high faux leather stools and books suspended from the ceiling.

Black arrives. Despite his hectic schedule, he is breezy and unrushed, informing me the venue used to be a pub called The Bear before it got poncy-fied.

Dismissing a pretentiously-named dish that included ‘foraged spinach’ he orders a Blue Moon beer and a leafy concoction, described as a ‘social salad,’ before getting down to business with a report on the criminal lawyers’ strike action.

‘I am pleasantly surprised at the reaction to how it’s going, and at the huge demonstration of the strength of feeling,’ he begins, ‘which was underestimated by the MoJ and by those that said at the outset, before 1st July, that solicitors would never get their act together and would never take unified action.’

Recapping the events of the past weeks, Black recounts how the grass roots action began – starting in Liverpool, thanks to the efforts of local solicitor Zoe Gascoyn and the CLSA, then growing, after simultaneous meetings in Leeds, Manchester and London agreed to strike. That preceded a representative group ballot, which he notes, became a ‘side-show’, although members voted overwhelmingly in favour of action.

The protest evolved, he says, ‘like beacons lighting up around the country’.

Despite the MoJ playing down the impact and insisting courts were ‘sitting as usual’, Black argues it worried the ministry and prompted the initial meeting between the LCCSA and CLSA and Justice Secretary Michael Gove.

He recalls of that get-together last May: ‘It was a cordial conversation. We expressed our concerns about the proposed cuts and two-tier contracts’. But within a fortnight Gove announced the cuts would be implemented in July and the contracting changes would still happen.

Black explains passionately the context in which the CLSA and LCCSA has acted. ‘The issue for us isn’t just the cuts; we’ve always been vehemently opposed to two tier contracts.

‘We expended huge sums, not just through crowd funding, but our own resources into fighting it through judicial review, because we felt that it was shit or bust – it was the end of the line for the majority of our members and those that aren’t members, but look to us for leadership and guidance.’

Gove, he describes as ‘clearly intelligent and a strategist. He was a lot more personable than his predecessor [Chris Grayling], who didn’t really want to engage with the profession at all’.

Blacks gets the impression that Gove is none to keen on engagement either, though says current Lord Chancellor has asked ‘the right questions’ and appeared to be listening.

Explaining the change in tack that shifted the action away from police stations and magistrates’ courts to the Crown Courts – and which oddly happened after the bar voted to join the action — Black explains that the groups had under pressure from a number of firms in areas of the country where big firms could not hold out any longer and small firms were getting wobbly.

‘Firms had continued the action for three weeks; they’d held firm for much longer than we, the MoJ or the CBA had expected. We surprised ourselves at the ability to individually not attend police stations or courts, despite the financial losses we were suffering and despite the cruel nature of our competitors in a small minority of firms who saw this an opportunity to make hay while the sun wasn’t quite shining.

‘Firms, looking at their income stream and recognising that the lower work — in police stations and magistrates’ court — pays the bills on a monthly basis, took the view that they couldn’t continue.

‘They needed either to up the action, by conducting no duty work in order to bring the matter to a quick close, or do something which was more sustainable’.

The action had not included duty work from the outset, Black explains, because the groups did not want to put firms at risk of allegations of breach of contract allegations by the Legal Aid Agency. Indeed, that was a weapon the LAA had been quick to reach for in the past.

Similarly, Black insists, it would have been irresponsible to run a campaign to boycott the tender process, as it would have put firms at risk of losing out to those gliding in from neighbouring areas, as well as to new entities coming into the criminal defence market.

However, his position, he says, is changing on this as he sees it may be the last resort for many bidders who do not see how dual contracting can work.

Many firms, he says, bid ‘with a gun to their head’, facing extinction if they did not play ball.

Moreover, there was a great deal of uncertainty caused by both the outcome of a judicial review challenging the dual contracting proposals and a little matter of the general election.

After the High Court ruled that the tender process was lawful and proportionate, firms had five weeks to submit their bids in what was a lengthy process.

‘Bids take some firms two months using two fee earners to complete. It’s a big job. Not all firms have practice managers and consultants to do them; most run on a shoe string, with a skeleton administrative support, so it’s the fee earning partners putting them together,’ he states.

Deftly getting through his lunch and barely pausing for breath, Black moves on to consider the relationship between the bar — at which he practised — and solicitors.

He accepts there is ‘a lot of suspicion’ on both sides, fuelled by the fact that the bar avoided recent cuts while solicitors were hit with two, and by Gove’s overt courting of barristers since taking office.

Black says he understands the bar’s suspicion over the reasons for the change of focus in the strike action, which seemed to transfer the financial hit onto barristers. But, he says: ‘It was stirred up in corners that did not want to see a united approach to the MoJ’.

And a unified approach, he insists, is the only way ahead.

The 20-year-solicitor veteran is adamant that despite the ‘hysteria’ over higher court advocacy and referral fees, solicitors want to see an independent referral bar.

‘That’s at the heart of this campaign. The majority of solicitors’ firms and the majority of the junior bar will suffer as a result of duel contracting,’ he warns.

It is important to retain a quality service, Black insists. ‘Instructing the best advocates, whether they be independent barristers or solicitor-advocates, is in the interests of our clients. Good quality service and good results are in the interest of our reputations.’

Black insists that firms do not want to lose the relationship with the bar, which he says, provides ‘quality service on a shoe string’.

To that end, he says: ‘We’ve tried our hardest to build bridges with the bar and have been in constant talks with the leadership of the CBA [Criminal Bar Association], working hard and wanting to understand what is in our mutual interest’.

He expresses gratitude to those barristers who have campaigned for the no returns policy, as well as to those who were not in favour of it, but who have accepted the will of the majority.

Black accepts that the thorny issue of solicitors doing more higher court advocacy has caused tension.

‘There needs to be an open and honest discussion in this regard. The bar needs to understand that some cases are simply not viable unless solicitors conduct the advocacy.’

The fees paid to those providing the core service to clients in the magistrates’ courts, he states, can be parsimonious – as little as £180 to visit clients in prison, speak to family, appear in court and apply for medical reports. ‘The only way they can make that viable is to continue the representation as Crown Court advocates’.

‘Unless either profession wants OCOF – one case, one fee – then we need collectively to address it. We need all to be Atticus Finch’s — stepping into each other’s shoes and walking around.’

On the all important issue of quality, Black states: ‘There’s no way that we can provide the same service that we did before 2008 and make any form of profit.’ But he adds: ‘I’m afraid firms still do provide a service and make a loss, because we come into this job to enable our clients to have access to justice and access to quality justice.’

Rejecting the image that some of the public have of criminal lawyers being either ‘Rumpolians or wide boys dedicated to getting the guilty off,’ he emphasises: ‘There is so much we do that the public do not see. We have traditionally been legally qualified social workers for our clients.’

The criminal justice system, he reflects, has for far too long relied on the goodwill of the criminal defence profession. ‘As Paul Harris [his predecessor as LCCSA president] has described, we have behaved like a battered wife – been willing to take hit after hit and still come back for more because we are committed to the job we do.’

Though he is aware that some firms take a ‘McJustice approach’ – cutting corners, ‘piling clients high and selling them cheap’.

Black does not accept that there are too many criminal lawyers. ‘There are firms that have gone on for years about the market being too big. There were people in them who trained us how to bill so we could recruit more lawyers, who are now saying there is an over-supply’.

The market, he insists, will dictate the number of firms, without the ‘paradoxical’ interference from a supposedly laissez-faire doctrine Tory government trying to dictate terms.

The former Leeds Grammar School boy — who studied English and history at Newcastle Poly before completing the bar course at the Inns of Court School of Law — blames deregulation of the universities in the 1990s and the post-graduate legal education system for some of the problems created for aspiring lawyers.

‘Law faculties popped up everywhere and the profit-driven provision of education meant over-recruitment at universities. That has been coupled with irresponsible recruitment to the BVC and LPC without warning students that there is no guarantee they will be the next Michael Mansfield or Helena Kennedy,’ he observes.

Back to the strike. Black is optimistic about what can be achieved. ‘We think we can win the arguments. We need to continue putting them, not just in relation to the cuts, but to two-tier.

‘If two-tier does come in, it is a well known fact that it is likely to lead to a car crash in the market, which could take us back to the days when legal aid was introduced for this type of work 64 years ago,’ he warns.

Stressing the importance of high quality police station advice and need for proper payment for the anti-social hours the work involves, Black recalls the days before legal aid was available or accreditation required, which saw numerous miscarriages of justice.

‘When they started the police station advice scheme in the 1990s, there were two levels of representation – duty solicitor and own solicitor. The own solicitor didn’t have to be a solicitor or anyone who’d ever read a law book; you could send the receptionist to sit next to the clients in interview.’

He fears a backwards step to the days of those miscarriages of justice, since the fee cuts that started with the Carter reforms have meant the hourly rate is so derisory that experienced practitioners are unwilling to give up their time or weekends to spend hours at a police station.

Though he does not expect money to made available to increase the criminal legal aid spend, he observes that the ministry has already achieved its desired savings. And, he suggests, the court closure process will bring added savings without the need for dual contracting.

The government should not expect the determination of the LCCSA or the CLSA to fizzle over the summer. ‘We’ve spent far too long and far too much energy over the last two years — both the CLSA and LCCSA have worked round the clock — fighting dual contracts and PCT [price competitive tendering] and the cuts.

‘Despite our exhaustion, we’re not ready to give up,’ Black asserts.

He comes from a legal family. His father, Barrington Black, was a criminal solicitor and a judge and his sister is a barrister. ‘Growing up in a legal household put me off being a lawyer,’ he says. Politically active, it was not until Black was in his 20s that he saw a link between the law and his social ideals.

Persuaded by his sister that the law was for him, he trained as a barrister and practised at the bar, before making the transition to the other side.

As a solicitor-advocate, when Black first appeared in the Crown Courts, he was something of a rarity. ‘You’d see another solicitor-advocate like you might see another English person when travelling in a foreign city.’

When appearing in the higher courts, he generally eschews the horsehair. ‘I’ve always said that in a courtroom in 2015, where we have iPads and MacBooks, there is no place for 18th century court dress’.

Such has been the intensity of his stint as LCCSA president, admits Black: ‘I’ve forgotten what I do to relax.’

He can’t sit still to watch the telly or read a book and is permanently distracted by work, much, he quips, to the irritation of his wife and three children. ‘Even when I’m walking the dog I tend to be looking at my ‘phone.’

Black likes to cook, but says he makes too much mess to be allowed frequent access to the family kitchen. So going for the odd run with a mate is the nearest Black gets to relaxing, before revealing his ‘guilty pleasure’: a Sonos sound system. He is a fan of classic eighties bands The Stranglers and The Smiths, and his ultimate tune is The Jam’s ‘A Town Called Malice’.

Come November when he hands over the reigns at the LCCSA to Julian Hayes from west London law firm Hayes Law, Black may have more time to indulge his cooking and musical hobbies. His advice to Hayes is to switch off his ‘phone for a couple of hours each night.

With that, Jon Black shoots back to the CLSA meeting. But when the autumn rolls round, will he really take a leaf from the that Jam tune: ‘Better stop dreaming of the quiet life; Cos it’s the one we’ll never know …’

Unlikely.

Legal Hackette lunches with Francis FitzGibbon QC

attachmentOver a pub lunch, the man who next year will lead whatever criminal bar is extant, discusses why advocates should train as solicitors, the legal aid gravy-train and the curse of twitter

Francis FitzGibbon QC caused a stir this month, becoming vice chair elect of the Criminal Bar Association. The result was announced at the same time as the outcome of the CBA’s ballot in favour of joining the solicitors’ protest over legal aid fee cuts.

FitzGibbon had stood on a ‘no to strike’ ticket, beating Garden Court North’s man, Mark George QC, whose pro-strike stance seemed to resonate more with the rank and file membership, if not with the CBA generals.

Escaping the teeming rain, I meet him at his hostelry of choice, the Duke of York, on Roger Street, just round the corner from his Doughty Street chambers. The 1930s establishment boasts numerous art deco mirrors, shell-shaped up-lighting, abundant yukka plants and hearty pub grub.

Under a cycling jacked, the diminutive figure with closely-cropped salt and pepper hair is casually dressed in tight khaki trousers and a light cotton pink and white striped shirt.

After a ‘fairly intense’ few months, during which he has done four murders and a rape, juggled with CBA activity, he is winding down before heading of on hols.

We head for a booth at the back of the pub away from the melee and ordering a cool lime juice and soda, he tells me he has spent the morning being briefed on a new knowledge database programme.

‘I’m trying to go paperless,’ he says. ‘I do that a lot more now. It took a bit of getting used to. Like many barristers of my generation, I’m a bit of a caveman when it comes to the more sophisticated online stuff, but I find it incredible helpful to have everything on my laptop so I don’t have to shuffle round endless files.’

An avid cyclist, who pedals his way to court whenever he can, he is keen to reduce the amount of clobber he has to cart around and tries to have only file containing all core material.

Without messing around with starters, he goes straight in for the main course – cheeseburger and chips.

Fifty-four-year old FitzGibbon, studied classics at Magdalen College, Oxford before falling into law.

He recalls: ‘Coming to the end of university I didn’t have much clue what I was going to do. My father had died that year and I was feeling at a lose end generally. A very close friend suggested we study law.

‘I thought that would be a great thing to do. It was 1983/4 — you got a government grant and didn’t have to pay any fees. It was a way, I suppose, of putting off the inevitable day of having to find a job.’

They signed up to the Polytechnic of Central London (now the University of Westminster). His friend lasted a month before ditching the course, but FitzGibbon stuck with it.

Called to the bar by Middle Temple in 1986, he accuses the Inn of ‘coming close to destroying my liver’.

‘You had to do, not only do 24 dinners, but eat them in blocks each term. If you missed one, you had to start at the beginning again. Somehow I managed to not eat my dinners in the right slot so I had to start again. I think I had about a hundred dinners before I became a barrister.’

His family has no legal background. He quips: ‘The only lawyers that my parents ever came across were divorce lawyers – they both got divorced, from each other and from other people. So lawyers had a poor reputation in our house.’

A friend of a friend introduced him to the now retired Law Lord, Leonard Hoffman QC, who offered him a pupillage, which he accepted without knowing much about the work his chambers did.

‘It was so boring – they all did commercial leases and technical things. From day one, the work might as well have been in Chinese,’ he remembers with horror.

He got the criminal bug while squatting at Cloisters and more than 25 years later he doesn’t regret the choice.

Though, he adds, he would not recommend students follow in his footsteps. ‘The job is wonderful, but if you’re starting out now, there are too many obstacles.’

His advice to young people considering the criminal bar is ‘think very hard before committing to it’.

‘I tell them the truth about how hard it is to get started and suggest that if they really want to do it, the better start would be to get a training contract with a solicitor’s firm. Then decide if they want to do advocacy and if they can develop into that.

‘I’m sure that it would have made me a better advocate if I had done some training with a solicitor. It would have given me a greater understanding of the system,’ he muses.

Though he reckons it would be beneficial for solicitors and barristers to undergo a common training, in criminal law, he favours separate litigators and advocates, citing ‘good practical and ethical reasons’ for maintaining the split.

‘I can’t predict what shape the professions will take in the future, but I should imagine they’ll be a degree of fusion of barristers and solicitors. Whether that will just be at the training stage or throughout is hard to tell,’ he says.

Adding: ‘For the public interest, the key thing is to have specialist and properly motivated litigators and specialist and properly motivated advocates.’

There is, he accepts, no rolling back the trend for some barristers to move in-house. ‘That ship has sailed.’ But he suggests the extent to which it continues depends on the economic viability for solicitors to employ them.

‘Employees are very expensive and you’ve got to be able to forecast your turnover and profit to work out how many people you can afford to keep on’, he says.

He contrasts that with the ‘beauty of the freelance bar model, which doesn’t cost the solicitor a penny.’

With wry understatement, he observes: ‘These are interesting times. In the next couple of years there are going to be massive changes to the way criminal law is done.

‘Funding will be very different, as will the professional arrangements that will flow from whatever funding model they finally settle on.’

His plan for a quiet lunch is shattered as a boisterous party of eight select the next-door table. He is softly spoken and to catch his words above the din, I almost hover over his lunch.

Looking at the bigger picture, he says, falling crime rates mean there is less work to go round.

‘With the best will in the world there won’t be enough work to sustain the numbers of criminal lawyers that we have at the moment.’

Those who will lose out, he laments, will be barristers at the start of their careers, doing the smaller work.

‘As solicitors, either by choice or compulsion, do more advocacy, that will come away from the bar. While the more complicated, smelly stuff that they don’t want to do, they will farm out to the senior people,’ he predicts.

The position of silks, he says, is uncertain but overall the profession will shrink and recruitment of new good people will be a ‘huge problem’.

His mobile rings and he excuses himself to take the call. It is the man from Auntie — Clive Coleman seeking clarification about the bar’s strike action.

Returning, he paints a picture of the stasis that criminal lawyers have been in due to continuous consultations, policy and funding changes and uncertainty over the future.

‘For years now there has been a permanent planning blight over the whole profession. People have been very reluctant to invest money because they don’t know what the outcome is going to be because.’

He looks forward to the time that changes will develop into something permanent that the profession can ‘set its compass by’.

To a degree, he accepts the unpredictable. Life at the criminal bar, he explains, has ‘always been a totally insecure profession, like any kind of freelancing. Anyone coming in who thinks that they’ve got a permanent job and income is deluded — it’s just not like that and never has been.

‘I’ve tried to tell myself over the years that insecurity is my friend, because life in general is insecure and, if you start getting used to things and think you are entitled to them, when you don’t have them anymore you get into a bit of a pickle.’

He recalls: ‘During the golden years of legal aid there was masses of work. It was quite well paid — in some case it was probably excessively well paid. Some people thought it was going to go on forever. But I’m sorry, things don’t go on forever.’

FitzGibbon is naturally guarded over what he says about the current uncertain state of affairs, in advance of the CBA executive’s meeting.

He likens the MoJ’s desire to hasten the consolidation of the criminal defence market to ‘doing an experiment on live animals to see if they can force the pace of change’.

I ask who he thinks if winning the fight so far. He answers in a flash: ‘The government. They control the money.’

But, he is not at home to ‘the language of antagonism’. ‘Talk of winning and losing and battles, is unhelpful. What we should all be trying to achieve is a high quality standard of criminal justice for everybody,’ he insists.

On the twitter storm that followed the confusion over whether or not the CBA was due to attend a meeting between solicitor bodies and the Justice Secretary, Michael Gove, he is reluctant to regard it as a reliable bell-wether

‘Twitter is endlessly fascinating, but I don’t think you should take anything on it as representative of people’s feeling s in general,’ he asserts.

The explanation, as far as he is aware, is that of the ‘confusion and misunderstanding’ put forward in the joint statement by the solicitor groups and the CBA — the meeting was set up by the solicitor groups and, and although the CBA was invited to attend as an observer, that request was not followed up.

There are, he assures, ‘no hard feelings about this on the part of the people who are actually concerned’.

Rather he insists: ‘It’s all been magnified on twitter for reasons that I don’t begin to understand. Nobody on our side was remotely miffed about not being there. It wasn’t our show.’

He is reluctant to predict the outcome. ‘At this stage all I can tell you is that CBA executive committee will make an executive decision one way or the other to continue to support the action or to put the matter to another vote of the membership. What the actual decision will be I have no idea at all.’

He stood for election on the message that tactically now was not the right time to strike because of discussions in progress with the MoJ. ‘I couldn’t see how a strike now would advance the cause,’ he explains. But he understands why solicitors acted.

‘They’d been led to expect that the second 8.75% cut would be introduced in January [2016] with the new contracts, and they were then told at short notice that they would be coming in at the beginning of July. They faced a dilemma about how to deal with it and they decided they should strike.’

Whether their meeting with Gove delivers the concessions they want, he says, remains to be seen. ‘We don’t know about that because the statement issued afterwards was properly non-committal.’ That statement described the meeting somewhat opaquely as ‘potentially useful’.

His intel on the meeting is that Gove invited them to suggest alternative savings.

But he is doubtful whether doing so will result in a reversal of the cuts. ‘Unfortunately the MoJ has a history of doing that and then just pockets the savings and carries on cutting,’ he observes.

His view on Gove?

‘I’m regularly accused on twitter of being a fan of Gove, which I’m not. I’m entirely ambivalent to him, but it seems to me that the announcements he’s made early in his job, in not building a new children’s prison and ending the prisoner book ban, are pretty fundamental shifts in policy. Whether you like him or not, I think he and his department deserve some credit for that.’

He is doubtful whether the Secretary of State’s openness to reversing policy extends to increasing legal aid spend. ‘They [the MoJ] are not masters of their fate — they are led by the Treasury,’ he explains.

But, he notes: ‘Gove has said all this stuff about having a two-tier criminal justice system in which poor people get a bad service, and said that he wants that to change. He needs to be helped and shown how to do it.’

His continues: ‘The fact that he’s had discussions with groups may suggest that he’s in earnest. I’m not a cynical person and I’m not inclined to write people off immediately before I’ve seen what they’re like.

‘I’m not enough of a politician to know if he would feel sufficiently threatened by the solicitors’ and barristers’ action for it to make any difference, but I rather doubt it, because ultimately he holds the cards.’

His advice to Gove is: ‘Keep listening to the judiciary and to the leaders of the professions, who understand how the system works from the inside. Decide if you want quality and, if so, whether you’re going to pay for it.’

And crucially, he recommends penal reform to cut the number of people going to prison.

FitzGibbon however, does not altogether buy the line that no more money can be found. Rather he suggests: ‘More money can always be found. It’s a question of where it comes from.

‘If we’re going to persuade the MoJ to divert money into paying lawyers, you’ve got to show, first that it’s value for money and, second where they can get the money from.’

He observes that the Treasury found a ‘significant amount of money’ to prosecute big financial crime. ‘That tells me a case can be made for money to be put into the system, but it’s got to be a very powerful case and one that carries weight politically.’

Criminal lawyers, he notes, while good at putting other peoples’ cases, have been bad at putting their own and have struggled to shake of the ‘fat cat’ image pedalled by the government in the past.

‘It’s difficult for lawyers to say “I’m a lawyer, pay me more money.” It’s not a very attractive message,’ he accepts.

On the solicitors’ decision to go back to work in the police station and magistrates’ court, FitzGibbon understands why many felt they could not continue with the action.

‘They need to keep the money coming in — they have businesses to run and commercial obligations — rent and wages to pay.

‘There is a time limit on how long they can stop earning money. The question was always when the action would hit the buffers. I don’t think anyone should be surprised that the action didn’t last indefinitely; it was never going to.’

Next autumn when he takes up the reigns as CBA chair, who knows what the landscape will be. With his tongue firmly in his cheek, he promises utopia.

On that note, his ‘phone rings again and it’s another call he must take.

Legal Hackette lunches with Sir Ivan Lawrence QC

medium_Copy_20of_20SIR_20IVAN_20LAWRENCE_20QC_20022Over lunch at Inner Temple Hall, the veteran silk who defended the Krays and is the former Tory politician responsible for the National Lottery discusses the demise of the criminal bar and why he voted yes to strike action

Sir Ivan Lawrence’s chambers at 5 Pump Court are in a quiet, shady corner at the heart of London’s Temple. The waiting room is homey with canvass prints on the wall and two bright red sofas. A hardback copy of his memoirs, ‘My Life of Crime’, sits alongside magazines and newspapers on a coffee table.

The dapper 78-year-old is wearing a striped shirt with a starched white collar, paired with a flowery tie in shades of purple and yellow, the button of the order of chivalry of knight’s bachelor in his lapel and gold House of Commons cufflinks.

He greets me warmly and sinks into the opposite sofa, lamenting the state of the criminal bar, which only days before had voted to support action being taken by their solicitor colleagues over fee cuts and proposed contracting arrangements.

Lawrence, whose party battled the miners during their strike against pit closures in the mid-eighties, voted in favour of protest action in the recent Criminal Bar Association ballot. Indeed last year, at a meeting of the Tory Reform Group, he called on barristers to strike over the ‘total madness’ of the government’s legal aid policy.

The £220 million savings the cuts are designed to achieve, he says, are ‘pitiful’ and will only serve to make an already inefficient system worse.

Citing the decline in fee rates, Lawrence notes: ‘When I do a murder or a fraud trial now, my clerks tell me that I get less than half what I was being paid 20 years ago.

‘And there are juniors who have been at the bar for years who are paid £50 a day. How can people work for that and why will people want to come into the profession for that? They simply can’t and won’t do it. The result is that people won’t come to the criminal bar.’

Since taking up his post as Justice Secretary and Lord Chancellor after the election, Michael Gove has overtly courted the criminal bar in his speeches and performance before the justice committee, stating that it’s preservation is one of his ‘top priorities’.

Lawrence says he does not know Gove personally, but he credits the former journalist with greater intelligence than his predecessor, Chris Grayling. ‘He can see further ahead politically, and is more forceful and principled. So the bar is in with a better chance.’

But, even with the new, more conciliatory broom, Lawrence does not hold out much hope. ‘The [publicly-funded criminal] bar’s fees are set by civil servants who have an agenda – fusion of the solicitors and barristers professions,’ he explains.

He acknowledges the obvious – there will still be a need for criminal advocates, maintaining there will continue to be both barristers and solicitors doing that work. But, predicts Lawrence, aside from a couple of large sets with senior silks, crime specialist barristers will be working in-house in one-stop-shops rather than independent practice.

He fears that the professions have been heading towards the civil servant’s dream of fusion ever since the Courts and Legal Services Act 1990, which sought to break the monopoly of the bar by giving solicitors rights of audience in the higher courts. And that is the direction in which things will inexorably continue.

At the time that the bill went through Parliament Lawrence was MP for Burton. He spoke against it. Hansard records his warning that it would be ‘the beginning of the end of the independent bar’ and lead to a ‘fused profession’.

To arrest the cuts and contracting reforms, he states: ‘Industrial action is the only thing that the government will listen to. I’ve been saying it for a long time, but people haven’t been listening.’

Bar strikes last year saw off the government’s planned advocacy cuts. Lawrence takes a modicum of modest credit for that change. During the action that saw bewigged, placard-waving barristers chanting outside courts, he attended a reception at Number 10.

Lawrence took the opportunity for a word in the PM’s ear, warning him that the cuts, which would affect around a quarter of a million voters – lawyers and their families – could result in the party losing key support and marginal seats to UKIP.

A few days later, the cuts were cancelled. ‘I like to think I did my bit,’ says Lawrence.

On that note we stroll in the sunshine across the court and under the cloister to Inner Temple and into its wood-panelled dining room, festooned with the crests of benchers gone by.

The high-ceilinged hall with light pouring in through stained glass windows, laid out with rows of long wooden tables, would make any Hogwart’s pupil feel at home.

With charm and exquisite manners, Lawrence guides me in and explains the canteen style – there are stations from which to select starters, salads, mains and pudding and the special today (Friday) is fish and chips.

He has abandoned his usual place at the high table with the masters (of which he is one) to sit with the rank and file and his guest. The hall is surprisingly full and although most of the lunchers are male, there is no air of machismo or exclusivity. The atmosphere is convivial and banter good-hearted but reserved.

We both prefer the chilled sweet potato and cumin soup to the green pea and parsnip alternative, with a generous portion of deliciously greasy croutons. We carry our bowls, bearing the inn’s Pegasus crest, to a table at the side of the hall. It is strewn with flyers – one for a performance in the Inn of A Midsummer Night’s Dream, another for a fundraising concert at the Temple church and the third and most interesting for the ‘Inner temple Hendrick’s Pop-up’ – the ancient Inn has teemed up with gin makers for a mixology master class and cocktail events.

Tucking into the creamy, delicately spiced fare, the only child of working-class Jewish parents explains why he opted for a ‘life of crime’.

‘No other reason than when I was a schoolboy I liked reading about famous trials. When I was in the air force thinking about what to do with my university place, I went to watch a few trials and I thought “I’d like doing that”’.

And the rest, as they say, is history. The grammar-schoolboy studied jurisprudence at Christ Church College, Oxford. He was called to the bar by Inner Temple in 1962 and took part in some of the 20th century’s most infamous murder trials, including those of the Kray twins, serial killer Denis Nilsen and Russell Bishop, wrongly accused of the Babes in the wood murder in 1986.

Having been at the bar for 53 years and taking silk in 1981, he is more qualified than most to profess what makes a good advocate. ‘You have to be able to speak and be understood,’ which he asserts ‘is not really compatible with having too strong a regional accent’. A glass smashing at the next table accompanies what some politically correct types might regard as bit of a clanger.

He continues: ‘You need self confidence and a wish to be independent (a theme he will return to) rather than getting a weekly wage from an employer who tells you what to do all the time.’

In addition, he points to the attraction of working in a world ‘where every day is different and where you’re dealing with people’s lives in difficult situations and, as a defence lawyer, trying to help them’.

With characteristic humility he adds: ‘As time goes on I realise something that I hadn’t done before — it is actually quite a privilege to be invited into somebody’s life with a view to improving their situation.’

He relishes the freedom from the drudgery of a 9 to 5 job that the independent criminal bar brings, but stresses ‘you have to be paid’.

Dispelling the myth of the fat cat barrister that successive government’s have been keen to sell to the media, Lawrence states: ‘Nobody could ever earn a fortune at the criminal bar. A handful of people do or who say they do, but that is only ever for a limited period.’

In more than half a century of practice, he has seen ‘massive changes on every front’. Indeed, he reflects, ‘little is the same’ and reckons that the rest of the lunch hour would be insufficient to cover all the changes.

By way of illustration, he indicates with thumb and index finger that when he came to the bar, the Crown court practitioner’s bible, Archbold was about an inch and a half thick printed on very thick paper and containing a limited amount of law.

Now, he gestures, it is twice as thick, printed on very thin paper and with three supplements each year that double its size.

‘The criminal law is so complicated and has seeped in to every aspect of a person’s life’. Society too has changed, which he says, is reflected in the cases that come before the courts.

‘There were no money laundering cases and few sexual abuse cases – it was simple burglary, rape, a bit of murder, a bit of fraud’.

On the competing rights of the parties involved, he says: ‘The impetus has gone towards the prosecution, but that is not to say it has gone too much that way. The right to silence has been diminished, but to some extent that may have been necessary.’

We break off to go up to the counter to get our main course, but have to wait for a refill of the popular battered fish.

Lawrence excuses himself to catch up with one of his chums. Having selected chips, old-school style cauliflower cheese, a large pickled onion and a healthy dollop of tartar sauce, he returns, stopping on his way to greet fellow diner Rob Rinder.

The barrister and star of ITV’s reality show Judge Rinder was in chambers with Lawrence’s only daughter Rachel, whose death of lung failure due to cystic fibrosis two years ago devastated him and his wife of almost 50 years, Gloria.

Glancing round the room, the inn’s sub-treasurer, Patrick Maddams, is at the other end of our table with a young lady member from Hong Kong who had just finished her PhD. And solicitor-blogger David Allen Greene has slipped in on the next table.

On his return, Lawrence explains apologetically that he needed to arrange the handover of a bottle of the Inn’s finest port to a commercial silk who had won it at an auction in aid of a cystic fibrosis charity. ‘I’ve been carting it around in my car for weeks and it won’t do it any good.’

After a run-down of the bigwigs on the high table, which include the treasurer, Lord Justice Moore-Bicke and reader, Judge Cryan, Lawrence returns to his earlier subject of the future of the profession.

‘I fear the criminal bar will go – there won’t be a criminal bar in the future,’ he predicts with considerable regret.

He won’t forecast how long the death throes will last, but laments: ‘It’s happening and it’s happening to a substantial extent.’

Lawrence paints a picture of an inefficient, bureaucratic criminal justice system, characterised by the falling standards of defence solicitors and the prosecution, and waste. Swinging fee cuts have meant criminal law firms have had to increase their volumes of work to survive.

This has had a knock-on effect on the quality of work, suggests Lawrence. ‘They pile it up and do not do a proper job. They tie papers with rubber bands instead of tape – always an indication of slackness – briefs are not prepared, proofs are not taken and the work that solicitors used to do in advance is being left to the advocate to do in conference with the client’.

Returning to the bar’s independence, Lawrence explains there are two reasons why it is important. ‘You have to be independent of your boss and independent from the judge.’

He moves on to the rasion d’etre of the criminal bar – advocacy. He is not anti-solicitor and naturally relies on them for instructions. But, he is not happy with their encroachment on what used to be the preserve of the bar.

‘We are trained advocates whereas solicitors have to combine it with other things. Advocacy is putting your best points forward persuasively in the shortest available time. It’s an art that has to be learned and practised. Solicitors can’t do it if they are doing other things.’

Recounting the story of a crown court judge, not born when he was called to the bar, and who angrily challenged his line of questioning only to return apologetically after the luncheon adjournment, Lawrence expresses his concerns over the judiciary.

‘There is too much pressure on judges – they don’t know what they’re doing – they have to tick boxes, be on top of the latest changes in the law, control trials, be available…the pressure is great and some who have come from a more 9 to 5 background can struggle.’

He adds in the interest of fairness: ‘Of course everything I say is a generalisation to which there are always exceptions.’

The indefatigable advocate, whose time at the bar was for 23 years coupled with being an MP, remains busy. Among his caseload, he has a couple of murders and cases listed at the Court of Appeal.

Over strawberries and cream, and a glass of cold coffee, I ask if he sees himself retiring? ‘I don’t see why’, he retorts, ‘ unless something intervenes.’

Lawrence claims that he does not really relax. ‘To keep fit I used to play squash, but I have run out of partners – they have all either died, had strokes and got Parkinson’s, he laments, so now he engages in the more solitary pursuit of swimming and ‘tries to play the piano’.

‘I have my fingers in a lot of pies,’ he adds, rattling off numerous societies and organisations he remains actively involved with. He is on the Board of Deputies of British Jews, involved in his local synagogue, lectures at the University of Buckinghamshire (from where he has an honorary doctorate) and BPP Law School, is president of his school old boy’s association, trustee of the Holocaust Education Trust and president of the Spelthorne Conservatives, to name but a few.

On that note our lunch has to end as he is taking a local counsellor and her family around the Temple Church.

We pop briefly back to chambers, where he shows me his narrow room crammed with papers and books. Among the numerous pictures on the wall, is one of him with Margaret Thatcher.

The signed picture of a house painted by Ronnie Kray after his murder convictions, that used to adorn the wall, is no longer there. Lawrence sold it for ‘a fair amount of money’.

But the picture entitled ‘Head of Girl’ drawn by Stephen Ward, osteopath and one of the central figures in the 1960s’ Profumo affair, remains as Lawrence was unable to persuade the National Portrait Gallery to buy it.

On my way out he hands me a paperback copy of his memoirs, with the instruction to come back and get it inscribed once I’ve read it.

Marked by courtesy and good manners rather than political correctness, Lawrence is a gentleman from another age. There are fewer and fewer advocates of his kind or with his tales to tell — and that is a great shame.