Legal Hackette Lunches with James Parry

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

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

Vote of no confidence

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

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

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

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

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

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

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

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

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

From terrorist to insider

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

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

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

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

Wither Chancery Lane

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

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

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

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

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

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

Advocates’ Graduated Fee Scheme

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

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

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

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

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

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

Fee cuts

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

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

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

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

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

Merseyside court closures

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

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

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

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

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

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

Impact of mean testing

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

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

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

Brexit

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

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

Anonymity for rape defendants

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

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

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

Route to law

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

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

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

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

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

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

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

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

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

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

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Legal Hackette Lunches with Bob Neill

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

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

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

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

Boosting the magistracy

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

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

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

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

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

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

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

Just what does Brexit mean?

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

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

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

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

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

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

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

Wither Gove?

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

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

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

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

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

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

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

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

In praise of fusion

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

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

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

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

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

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

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

Embracing the digital

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

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

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

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

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

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

Getting legal aid right

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

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

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

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

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

Anonymity for rape suspects

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

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

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

Working class lad

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

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

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

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

Legal Hackette Lunches with Sir Anthony Hooper

38f2555bab6a63d8536bd907dd69fbad_400x400Over fish and chips in Fleet Street’s El Vino, one of the country’s most respected and well-loved former Court of Appeal judges explains why he is a ‘complete remainer’, and shares his doubts about revenue-raising DPAs and his concerns over the ‘bureaucratic’ judicial appointments process.

Sir Anthony Hooper was called to the bar in 1965, practiced criminal law from 5 Paper Buildings and took silk in 1987. Appointed to the High Court in 1995, he was elevated to the Court of Appeal 2004, where he shared a corridor with two like-minded and similarly out-spoken and pragmatic colleagues Sir Robin Jacob and Sir Alan Moses. ‘We were called the naughty boy corridor,’ he recalls.

He remembers the time that new style High Court judicial robes, resembling those worn by ‘an evangelical choir’ where introduced. They were not widely liked, but says Hooper, pleased one member of the bench. ‘Because they were so large, you couldn’t see what someone was wearing underneath, so he didn’t need to wear a suit and went into court in just his shorts’.

Having reached the mandatory retirement age, Hooper hung up his robes in 2012. He reflects: ‘It is very hard work being a judge. I enjoyed it very much, but as with so many things, you move on. The government hasn’t asked me to be a security commissioner or an intelligence overseer’. But he has found other pursuits to occupy his brain.

‘As a retired judge there are restrictions on what work you can do – you’re not allowed give legal advice or appear as an advocate anywhere in the world. I’m quite happy not to give legal advice, but sometimes I wouldn’t mind being an advocate again,’ he says.

He continues: ‘There’s an argument for saying judges should be allowed more leeway – they are in the United States. But one doesn’t want a situation where a former judge of the Court of Appeal becomes an advocate in Southwark Crown Court’.

Since leaving the bench, Hooper has been an associate member of Matrix. ‘I really love it; it’s a wonderful home for me’.

And he has been no slouch. He has recently returned from East Africa where, on behalf of the United Nations and the World Bank’s Stolen Assets Recovery Unit, he has been training judges handling corruption cases, in particular dealing with proceeds of crime legislation.

He spends a large amount of his time investigating corruption for the International Association of Athletic Federations (IAAF).

‘I’ve been appointed to investigate individuals against whom the Ethics Commission has found a prima facie case. Last year I did a report on four people and following that report all four were suspended – three for life and one for five years. It’s public knowledge I’m looking that I’m looking at other people’.

He explains that he is not concerned with doping, but with corruption, although doping is the background to the investigations.

As the country prepares to go to ballot box over the UK’s continued membership of the European Union, Hooper shares his strong views.

‘I am a complete remainer. I have followed many of the arguments that have been raised, and I know it’s a very complex issue. But, I start from a very personal standpoint.

‘I was born in 1937. In February 1942 my father, part of Bomber Command, was killed on a raid on a German naval base in France. His plane was shot down and eventually crashed.

‘Six months later my grandmother was dead, as a result of a loose bomb dropped by a returning German bomber. He presumably decided he didn’t want to take his bombs home, so just dropped them. That literally took out the house in which my grandmother lived in a small village in Dorset.’

Then as, an eight-year-old boy he recalls seeing the horrific pictures of the liberated concentrated camps of Belsen and Auschwitz. ‘Those images are seared into my memory’.

The EU, he explains, gives two freedoms – freedom from and freedom to. ‘The freedom from is the freedom from Western European armed conflict. There have been no armed conflicts within Western Europe since 1945.

‘The freedom to is the freedom to exercise the great fundamental rights of the EU – freedom of movement of persons, goods, capital and services’.

For him freedom of movement is particularly important. ‘Some people today don’t remember what it was like when one had border controls. Now one can drive across Europe without any reference to border controls.

Withdrawal from the EU, he says, will mean fighting for the freedoms that we have hitherto enjoyed, and will necessitate, at huge cost, the ‘bureaucratic nightmare of re-establishing government controls over people moving’.

Under EU provisions Hooper was able to appear as an advocate in the French Court of Appeal. ‘That could be inconceivable in the future, unless we manage to negotiate new terms. And if we negotiate those terms, we might as well be back in the EU anyway’.

He does not want the right to work abroad to be dependant on a ‘bureaucratic machine’ in the Home Office or foreign equivalent.

In the event of a Brexit and the consequent break-up of the EU, he fears ‘a slow process, aided and abetted by Mr Putin, to break off Hungary, Poland, Lithuania’.

‘All those countries have border issues and people from other nationalities living round their borders. It’s not impossible to imagine a situation where rabid or ultra-nationalism comes back in and persuades people to kick out the foreigners from their country, followed by outside intervention.’

Parts of the Brexit campaign, he says, have been ‘absolutely outrageous’, and he accepts that the remain campaign has ‘overdone the fear factor’. But, he insists, there will be significant economic consequences to Brexit.

His next point, he concedes is ‘not a good argument to put forward for remain’, but nonetheless observes: ‘Look at those who want us to leave – Mr Putin, Donald Trump, the chameleon-like Boris Johnson, Chris Grayling (who managed to destroy the criminal justice system in his short tenure in office), Nigel Farage, George Galloway, Michael Gove. I’m not sure that I want to be in the same camp as that lot. They are an unsavoury lot’.

Another factor in the EU’s favour, he notes, is the fact that it has been one of the only organisations to stand up to the large American companies, like Microsoft, Google, Amazon and Apple, and examined their practices from the point of view of anti-competitive practices or tax avoidance.

Like most, Hooper, is uncertain which way the vote will go. Adapting Harold Wilson’s comment, he observes ‘a day is a very long time in politics’.

Given his work with the World Bank, he says about the Bribery Act here. ‘It’s probably the most stringent bribery act in the world now, of which I am aware’.

Unlike the American legislation, it does not have exceptions for so called facilitation payments, under which payments are permitted for enabling things to which you have a legal right to have done.

Though few companies have been prosecuted under it, he expects the Act has given many cause for concern due to the ‘failure to prevent provisions’, which enable the prosecution of companies that do not in place proper anti-corruption procedures.

Last year saw the first deferred prosecution agreement (DPA) this side of the pond. Hooper is not a great fan of the American export. He observes that prosecutors state-side have taken billions off companies, often only remotely linked to the USA, and returned only a small percentage to the countries where the bribery took place.

‘When I talk about DPAs I sometimes give this apocryphal and slightly tongue in cheek example.

‘I’m a French company and I go to Africa. I want to do a deal with their Ministry of Defence, but am told that no one gets a contract with the MoD unless they pay 10% to the Minister – that’s just the absolute rule. You either pay or you don’t get the work. The company decides to pay.

‘The Americans or the British get to hear about it and investigate – and they say that unless I pay $1bn, they’ll prosecute me. I ask the audience to contemplate those two scenarios’.

Hooper has doubts about the Prime Minister’s desire to expand corporate liability to a failure to prevent to money laundering and fraud, observing ‘it’s a wonderful way to increase revenue – it’s a tax on companies – maybe that’s a good thing’.

Adding with a chuckle: ‘It’s also wonderful for lawyers.’

Appointed to the bench by Lord Mackay, he is concerned by the lack of progress made towards increasing judicial diversity and unimpressed with the new system of judicial appointment.

‘I’m far from certain that I would be appointed under the modern system of interviewing and role play’.

He questions how you can decide if someone is suitable for the Court of Appeal on the basis of an interview, and voices concern that ‘we have lost something by this very bureaucratic method’.

‘I’m not saying the system under which I was appointed was any better; it no doubt had huge problems. But now you have someone who wants to be a recorder having to take a written exam.’

The concept of making a recorder, seeking a circuit appointment, go on a course and undertake role play to determine if they are suitable, he finds ‘extraordinary’ and suggests people will learn only to give the answers they know are required.

Looking at the transcripts of their trials, he says, will tell you all you need to know about what sort of judge they will be.

He recalls an account relayed to him of the role–play exercise of one wannabe circuit judge. ‘He was told that someone would come in to get him in 10 minutes for him to hear an application.

‘After eight or nine minutes someone came in and said “I’m sorry, we’re not ready for you; you can’t come in to court.” He said “rubbish, I am coming in” and strode into court’.

The fellow had assumed it was part of the role-play, and that he was required to show robustness in ensuring that the court ran efficiently. But, arriving in court, he found that the assessors really were not ready for him and were still dealing with the previous candidate.

Selecting judges, he accepts, is tricky, but ‘all this role-play stuff and answering questions, is looking only at what someone has achieved’. Rather, he says: ‘What you need to look at is potential, and that is hard to assess’.

On the future of the criminal bar, Hooper is ‘very depressed’. ‘It has so radically changed in my lifetime. Anyone charged with a serious criminal offence could have top quality advocates, but they have been driven away by nickel and diming them on the money and by a propaganda campaign by Grayling and his predecessors.’

Now, he fears for the quality of representation and laments the destruction of the legal aid system, which was ‘Attlee’s great legacy’.

Speaking of things not being what they used to be, El Vino has recently reopened following a refurbishment, after being sold to wine bar chain Davy’s. It is lighter and brighter, but much quieter than in its heyday.

‘I remember this place when it really was the place at the centre of the two worlds – the bar and the press’.

He gestures towards tables behind him: ‘The 27-stone James Crespi QC [injured in the 1973 Old Bailey bombing] regaled everyone with his stories from there, and over there they’d be journalists like Alan Watkins and Peregrine Worsthorne.

‘Women were not allowed to stand at the bar. The owner’s defence to the discrimination case fought against him by members of the bar was that it was the only way to protect male barristers from women – he lost’.

If he hadn’t done law, Hooper imagines that he would have like to direct films, like his Nephew, Tom Hooper, who lists among his credits The King’s Speech and Les Miserables.

‘I gave Tom a 16mm Bolex camera and he made his first film with it. So I feel a little link there,’ he says with fondness.

But reflecting on his life, he says: ‘I have absolutely no regrets. I’ve made choices, I’ve enjoyed my life and I’ve been hugely fortunate’.

 

Legal Hackette Lunches with Sally Smith QC

imgresOver a light lunch of lobster and prosciutto croquettes and a small sauvignon blanc at J Sheekey’s, the clinical negligence silk whose biography of eminent Victorian barrister Sir Edward Marshall Hall is out this month, consider what makes a great advocate, the stress of taking capital cases and the changing legal times.

Sally Smith QC established a medical law practice at London’s One Crown Office and has worked on some of the most high-profile cases, including the Alder Hey hospital child organ retention case, leading the prosecution of the doctor who sought to draw a link between autism and MMR and representing the strategic health authority in the Mid Staffs public inquiry.

And she met her cardiologist husband, Professor Roger Hall, who was her expert witness during a long-running clinical negligence case.

But she fell into law by accident, in the first term of a history degree at the LSE under the tutorship of the, then unknown, David Starkey. ‘I went to a lecture thinking it was going to be on the Tudors, but it turned out to be on the law of contract. I felt too shy to clamber out over all of these denim-clad knees, so I sat it out.’

Finding that law floated her boat more than history, Smith told Starkey that she wanted to swap subjects. ‘He said: “It’s entirely up to you, but you’ll be terribly, terribly bored”’.

Smith has always been passionate about biographies. ‘I don’t care who they’re about. I’ve always had this preoccupation with the nature of truth,’ she says, apologising for sounding ‘terribly pompous’.

‘It ties in very well with being a lawyer. I’m interested in versions of events and have leant there’s no such thing as truth’.

Pointing out that law and biography are about looking at evidence, she says: ‘This sounds really nerdy, but if I read a biography or a diary, where the subject has been to a dinner party, I’ll go and look up somebody else who was at it and read their account of the same dinner party.’

Marshall HallFor years, she says, she had fancied penning one herself, but struggled to find an appropriate subject. She read the first biography of Marshall Hall, written by barrister and Tory politician Edward Marjoribanks and wanted to find out more about the man behind the myth, from a modern perspective.

‘Because it was written in 1929 it’s very restrained about his personal life and quite uncritical. I thought it would be interesting to see what he was really about. I began some Googling and it sort of turned into a project’.

Her internet sleuthing turned up an auction house selling artefacts that had belonged to him, including a desk and smoking jacket. Pursuing the trail, she wrote asking the auction house to pass her details on to the seller.

‘Two weeks later the phone rang and it was a lady in Wales. Her father had been Marshall Hall’s daughter’s executor. Marshall Hall’s daughter had never married and left everything in her house to this woman’s father’.

The lady had boxes and boxes of his papers, which had been gathering dust in her loft for years. Smith drove down to have a read and was then on a roll. From the papers, she found a close friend of his at the bar and contacted his family.

He had prosecuted Marshal Hall on many occasions and his family had kept a lot of the briefs. ‘I was literally undoing the pink ribbon on briefs which hadn’t been undone for a hundred years. It was extraordinary’.

Marshall Hall was involved in some of the most famous trials of his age, including the Camden Town murder, Seddon the Poisoner, the Brides in the Bath, the Green Bicycle Murder and the Murder at the Savoy.

Finding out about them, did not require much detective work. ‘He was the most consummate self-publicist you could possibly imagine and kept every press cutting from his first case, when he was totally unknown. They’re all in Inner Temple library – 38 volumes.’

Hall, born in 1858 and died during a trial in 1927, notes Smith, saved more people from the hangman’s noose than any other barrister. A combination of his moving and passionate oratory, charm and good looks saw him achieve a level of fame that no other barrister has, or will.

‘He was absolutely adored by the public, who felt that he was a saviour of the common man. He was a film star figure and showman. The newspaper headlines called him the handsomest man in England.’

‘When he died, the King sent a telegram to his wife, all the shops along the funeral route closed, cars and buses stopped and the working men in the street doffed their caps and stood in reverence as the cortege drove passed’.

Explaining the secret of his success, she observes: ‘He was six foot three, when the average height was five foot eight. He was said to be impossibly charming and he was famous for having the most beautiful voice.

‘This may not be what people like to hear, but if you’re a man being very tall and, whatever sex you are, being exceptionally good looking, is inevitably going to help’.

She adds: ‘He had the raw material – a mixture of real emotion and technique. In the end, you’ve just got it or you haven’t, even now. You can train anyone up to a point, but the extra bit that makes someone exceptional is innate’.

Advocacy then, says Smith, involved a lot of theatrical technique and would seem ‘ridiculously over-dramatic’ nowadays, but it determined the outcome of cases more so than today because people were tried on so little evidence.

‘Forensic evidence was at an embryonic stage. It wasn’t until 1901 that they were able to distinguish human blood from animal blood, finger-printing evidence was not used until 1903 and there was no court of appeal until 1907.’

‘People were hanged pretty soon after being convicted. I don’t think we realise what an extraordinary pressure that was on the bar. To have a healthy man whose entire fate was resting on what you happened to say on a particular day, is a very odd thought’.

Marshall Hall, says Smith, was haunted by the people that he did not get acquitted and he would write to them afterwards saying ‘may God have mercy on your soul’.

His private life, she notes, was just as sensational as his public life – with two turbulent marriages and mistresses.

‘He married his childhood sweetheart with whom he had a terribly miserable marriage from the word go’. Teasingly, she says: ‘You’ll have to read the book to find out why’.

But she does give away that it ended in tragedy after she had an affair with a French officer in the Indian army. ‘He sent her off for an illegal abortion in the most sordid of circumstances and she died after the most dreadful botch-up. The abortionist was charged with her murder and tried at the Old Bailey while Marshal Hall was a very young barrister’.

After her death, says Smith, Marshall Hall ‘went into complete decline and was desperate with unhappiness for years’. But the experience, she says, made him acutely aware of the suffering of women and he became famous for championing women throughout his career.

‘In the day when prostitutes were regarded as absolutely disposable and judges described them as brazen and wanton, Marshall Hall stood up in front of an all male juries and said these women were what men had made them’.

She quotes the line from the speech that made him famous: ‘As a prostitute sat in the dock weeping, he said: “look at her members of the jury – God never gave her a chance, won’t you?”’

Former barrister and broadcaster, Clive Anderson, wrote the foreword to the book. ‘He said that Marshall Hall had emotional intelligence. I think that’s true, and that’s why people loved him,’ says Smith, who admits to wishing that she had made the observation herself.

Having recently become engrossed in The Archer’s storyline of Helen who, after a slow burn of emotional abuse, snapped and stabbed her controlling, manipulative husband Rob, Smith is sure Marshall Hall would have been fighting Helen’s corner. ‘I’m sure he would have done it beautifully’.

She is equally as confident that he would not have had much time for the dreaded Quality Assurance Scheme for Advocates (QASA). ‘One of the things Marshall Hall was famous for was being indescribably offensive to judges. So I don’t think he’d think much of the idea of being assessed by judges. I think he’d treat it with contempt’.

Marshall Hall, says Smith, paid the price for his contempt of the establishment. ‘He was never made a High Court judge, and people have always questioned why’.

Smith thinks she has unearthed the reason – contained in a handwritten footnote in parliamentary archives. But she is giving nothing away. ‘You’ll have to read the book to find out.’

Having got her first book under her belt, Smith is keen to write another. She is not going back to practice, but will remain an associate member of her chambers, while she works on it. ‘I feel really in need of a change and I’d like to try to reinvent myself before it’s too late and I just retire’.

The next biography will be another legal personality – someone who is ‘interesting and also dead’.

‘My perfect period is the Marshall Hall period. He spanned the late Victorian and early Edwardian era, which was the beginning of a system of recognisable English law.

‘The law courts in The Strand were built, a new way of administering justice came in, with daily cause lists and things that made the public aware of what was going on. The Bailey was built in 1907,’ she says.

The period, she says, is not too distant in time that she cannot envisage it, but distant enough to be romantic.

She regrets the loss of the former romance of the Inns of Court, but points out that she, as a woman, would not have been admitted to the bar at that time.

‘It wasn’t until the First World War that women could come to the bar. When women first served on juries, they had a special room with mirrors and hairpins, and an article in The Times questioned how they would be able to do their public duty and still be able to perform their domestic duties.’

On balance, she concludes: ‘I think we should be glad of the changes that have taken place since then’.

Marshall Hall: A Law unto Himself is published by Wildy & Sons.

Legal Hackette Lunches with Julia Salasky

Over toasted courgette bread with grilled halloumi and a humble glass or two of Adam’s ale at Lantana Café on City Road, the former City lawyer who left a job at the United Nations to start CrowdJustice – a funding platform to raise the costs of legal actions, discusses how the first year has gone, the importance of social media and how crowdfunding has become mainstream.

headshot (1)Julia Salasky launched the UK’s first crowdfunding platform for public interest litigation a year ago. Since last May CrowdJustice has raised more than £600,000 to fund more than 45 cases. Around 90% of the cases posted on the site have raised the funding needed to get off the ground, with donations ranging from £1 (the minimum sum permitted) to £1,000 and the average being around £35.

The cases funded so far have been enormously varied, dealing with environmental and employment issues, whistleblowing, public policy decisions, and the Human Rights Act. They range from an elderly man challenging a local council’s decision to restrict his access to his wife, who has dementia and lives in care home to, a woman fighting for equal rights for cohabiting couples and a campaign to stop Sheffield County Council felling trees.

The plea from junior doctors to fund a challenge to the Secretary of State’s imposition of a new contract was the most successful in terms of fundraising, raising £85,000 in just three days and a total in excess of £133,000.

Current and recent cases include those from specialist legal charity, the AIRE Centre, which is looking to challenge the joint Met Police and Home Office initiative, Operation Nexus, that allows people to be deported from the UK without any convictions; and an appeal for funding from the Justice Gap and Justice Alliance to publish PROOF – a one-off magazine telling the public the ‘definitive story of legal aid’.

The ‘biggest success and most exciting case,’ so far, says Salasky, has been the intervention by grassroots campaign group JENGbA’s (Joint Enterprise: Not Guilty by Association), questioning the law of joint enterprise, which allowed people to be convicted of murder even if they had not inflicted the fatal blow.

It had been widely used to prosecute cases involving gangs of young people, and claimed campaigners, lead to many miscarriage of justice.

In February, in the case of R v Jogee, the Supreme Court agreed and ruled that the law on joint enterprise had been wrongly interrupted for 30 years.

‘We took the whole team to the Supreme Court to watch the judgment and to see the immediacy of what we’re doing. JENGbA supporters were crying and hugging each other – we thought “this is what it’s all about”.

‘At CrowdJustice, in a way we are just a platform, but in a way we exist to create access to justice. For JENGbA to have pushed to create this change in the law and for us to have played a small role in it, was really exciting’.

Born in Virginia to an English, journalist mother, and American, attorney father, Salasky qualified into the litigation team at magic circle firm Linklaters in 2010, before moving in-house at the United Nations.

Her first year at the UN was spent in The Hague working at the International Criminal Tribunal for the Former Yugoslavia, before spending two and a half years at UNCITRAL, the UN Commission on International Trade Law.

It was during the latter period that the seeds for CrowdJustice were sown. ‘I engaged a lot with the tech community on projects and saw their passion to use technology to change people’s lives for the better’.

So, she took the bold decision to leave the UN and bring the embryonic idea to life. Initially, she combined it with working for an environmental NGO, before taking the plunge full time.

‘I realised that it would only work if I put 100% into it,’ she says. ‘I wasn’t comfortable at first taking that risk, but then I met this 22-year-old guy who was starting something up.

‘When I started probing on the details of his project, his response to everything was “I’ll deal with it”. This is the approach you have to take to starting anything new – you just have to blast through any objections. Nothing ever gets started if you stop at the first hurdle.

But, she adds, ‘it was a leap of faith and that’s why watching JENGbA at the Supreme Court was so exciting – we saw the result’.

CrowdJustice came onto the scene as the legal aids cuts started to bite. But, says Salasky, that was a coincidence. ‘Although things became more critical after the devastating cuts, legal aid has been in retrenchment for years and years.’

In most cases for which funding has been sought, she says, the parties would not have been eligible for legal aid before the cuts. Rather they are brought by people who ‘can’t afford access to justice’ for all sorts of reasons, ranging from court fees, to adverse costs risks, to legal fees.

‘I’m hoping we can provide an alternative source of funding for people, but it wasn’t our intention to fill the gap left by the withdrawal of legal aid,’ she says.

In any event, she adds, the £500 million funding gap is too big for CrowdJustice to fill and the platform cannot offer the automatic protection against an adverse costs order that legal aid affords.

‘What’s really powerful about crowdfunding is that we’re allowing communities to come together to support someone — that is way more empowering that going to the government for legal aid.

‘If there are 300 people behind you and willing you to succeed – there is something very empowering about that, both for the person raising the money and for the community around them who have the chance to help someone’.

She continues: ‘What we’re trying to do is say to people that they might feel like they’re alone and that they have no money, but they can achieve something if they get lots of people to come together – whether it’s change in a personal situation or change at a policy level — and that is a huge thing to be able to do’.

Salasky compares CrowdJustice to a ‘virtual whip-round’. Parties looking for funding must have a legal representative, she explains.

When someone has a case that affects them and others in their community, they (the case owner) set up a ‘case page’ with details of the issue and a funding target to be reached within a certain number of days – typically 30. Only when the target is met, will the monies be collected from those who have pledged support. Second, or ‘stretch’ targets can be added to meet funding for additional legal needs.

There have, she says, been a couple of cases that have been unsuccessful, though most have yet to reach the final stage. Where a funded party loses, the complainant is responsible for any adverse costs order, although parties can crowdfund for the additional liability.

‘Because the donors are not investors, they are not getting a financial return and they are not exposed to an additional amount beyond their contribution,’ she explains.

CrowdJustice is still a small organisation, with only four staff. It is funded by private investment from angel investors and takes a 5% cut of the funds raised. In addition, its payments processor (Stripe) deducts a fee of 1.4% + 20p for every transaction.

‘That means 93.5% of funds raised go directly to the cases,’ which, says Salasky, ‘sounds so reasonable’ that she finds the question of justifying it hard.

‘We’re running an organisation in a new way and I’m really proud that so far we are managing to sustain a 5% model,’ she adds, before drawing a comparison with third party funders who seek to make millions from their investments – or charities, where the percentage that goes to administrative costs can be far higher, and less transparent.

While Salasky states that CrowdJustice is really just like taking a petition to the next level, by petitioning the law, she says it would not work so effectively without the internet and the social media tools that it makes available.

Half of the funding raised, says Salasky, tends to come from people reading Facebook posts. ‘We try to help funders figure out a social media strategy and look at ways they can start building a community.’

The ability to build a community, says Salasky, is key to successful crowdfunding. She gives the example of a ‘dynamic’ junior doctor who was fired after he raised concerns about patient health and safety concerns.

‘Until he started to crowdfund, he had no Twitter account and was not active on Facebook. But he managed to leverage every tool available to him to tell people about his case, and he got about 1,000 people funding him’.

Some people, acknowledges Salasky, do not have the energy, time or support to make it work. ‘That’s why it’s hard for crowdfunding to be a panacea, because the most vulnerable people simply won’t be able to create that level of community support’.

And the internet, she adds, allows people to track the progress of the cases they have funded and see the value of what they have been part of.

When she launched CrowdJustice, Salasky says, she did not know what the take-up would be, because it was so ground-breaking. Now that it has been going for a year, while it has been successful, she does not know the extent of the need for funding.

‘We don’t know if we’ve just scratched the surface, or whether we’ve maxed out and this is the pinnacle of crowdfunding in the UK. But it’s cool to see lots of different cases get funded, and to see what people are inspired by – it’s usually the human story of someone trying to create change for themselves or their community’.

Last month, it launched its first bid to fund a project rather than in individual case. Ipswich and Suffolk Council on Racial Equality is seeking to raise funds for its Tackling Discrimination in the East project, to bridge a funding gap while it waits for the outcome of its application for renewed funding from the Big Lottery Fund.

Third party funder, Balance Legal Capital, is providing some sponsorship in the partnership that sees legal charity, legal crowdfunding, and a third party funder coming together to improve access to justice.

The CrowdJustice team is also working on publishing a ‘find a lawyer’ guide – ‘to enable people to take the first step’.

‘Accessing legal advice is really hard. Loads of people don’t know where to start to find a lawyer. That’s not a problem that is restricted to people with low incomes – it’s common to most people’.

For now, they want to focus exclusively on crowdfunding. ‘We have managed to build momentum. Our ambition is to make sure everybody is aware that this is an option – whether it’s the lawyers or the parties themselves.

‘Crowdfunding is no longer a fringe thing. It’s changing how people access things from investment opportunities, to buying houses, to their studies.’

But, Salasky finds it a particular sweet fit in the world of law. ‘It’s a very innovative way to help people who aren’t big come together to be a Goliath. In law that’s perfect – to have equality of arms in that way’.

Legal Hackette Lunches with Peter Noorlander

Over spicy noodle soup and a zingy ginger and lime juice at Urban Orient, in the heart of Crystal Palace, in the week of World Press Freedom Day 2016, the tireless press freedom fighter discusses his new strategic civil rights litigation project, global issues around libel laws and why the Supreme Court is dragging its heels over the celebrity threesome ruling.

imgres-1Peter Noorlander, the Dutch-born and South London-cool international human rights lawyer has just moved on from the Media Legal Defence Initiative (MLDI), which he co-founded.

MLDI provides legal help for journalists, bloggers and independent media outlets across the world. It is representing jailed, award-winning Azerbaijan reporter Khadija Ismayilova with Amal Clooney and in March 2015 was awarded Columbia University’s inaugural Global Freedom of Expression Prize.

Noorlander continues his fight with a project to encourage and facilitate strategic litigation regarding digital rights and freedom of speech online, to challenge surveillance and data retention practices.

He and what he calls an ‘ecosphere’ of a couple of dozen lawyers and human rights organisations across Europe are working with a group of donor orgnisations to build a coherent and coordinated approach to such litigation, similar to models used seen in America.

The US, he says, has a ‘well-developed civil rights scene,’ that is happening to a degree in the UK, but lacking in the rest of Europe.

‘In the States you have a long history of people standing up for their rights and using the courts to do that.

‘In Europe, because of the traditions of social democracy and the way civil society has come about, you have much less of a culture of taking the government to court to enforce your rights’.

There are one-off examples in Europe, he notes, citing Austrian student, Max Schrems, who litigated against Facebook and successfully challenged cross-Atlantic data sharing rules, forcing Brussels to renegotiate its entire ‘safe harbour’ principles.

‘That was just one guy, with a lot of passion, working in his spare time with a couple of people helping him for free, but absolutely no framework around him to support him,’ observes Noorlander.

‘They are high on passion and energy, but it’s not a sustainable way to do human rights litigation.

‘What he, and others like him need, is support – a mechanism around them to professionalise it. But nobody’s going to do it if there isn’t some money behind it – people need to pay the bills’.

A lot can be achieved through litigation to clarify rights, he explains, something, he says, that is especially important now with new data protection and surveillance laws coming in, that infringe privacy.

‘The use of data is going to determine so much of our lives over the next 10,15 and 20 years and all sorts of decision-making is algorithmic’.

But the public, he says, do not realise how much information about them is out there. He speculates that is because the subject is ‘not very interesting’.

‘Data protection is so important, but it’s such a technical area of law and the two words immediately make your eyes glaze over. It’s so boring, even for lawyers. So it’s kind of a challenge. Big data is a big thing’.

Born in Holland, Noorlander studied law at the University of Maastricht and completed an LLM at Nottingham.

Realising he was not that interested in the practice of law, but in the policies and principles behind it and in human rights issues, he ‘rolled into human rights NGOs’.

He worked at Justice when the Human Rights Act was going through parliament. ‘It was a time of such a change in the legal culture. Labour had been elected and there was this real sense of optimism.

‘That was really great for a while, but then they invaded Iraq and it all went pear-shaped’.

After stints at Article 19 and the Open Society Foundation, he co-founded MLDI in 2008.

‘I’ve been lucky enough to work on issues that were more global, which has the advantage of working in a very diverse bag of countries, issues and legal systems, but also means that I don’t really know anything much in-depth about any country in particular. I know a little about a lot of countries. It’s a unique skill, but not very marketable,’ he quips with a dry, self-effacing manner.

Something of which he is keenly aware is the steady slide of the rule of law and rise in assaults on free speech, with increasing numbers of journalists and bloggers imprisoned or killed because of their writings. Last month Xulhax Mannan, gay rights activist and editor of Bangladesh’s only LGBT magazine, was hacked to death.

The decline in respect for the rule of law, he laments, has happened as much in Western Europe and North America as elsewhere, causing the West to lose the moral high-ground upon which it used to stand.

He attributes this decline to the delayed effects of 9/11 and the impact of the economic crisis. ‘To me, it’s also clear that invading Iraq and Afghanistan were really bad foreign policy decision, which put things in motion and had a domino effect, that encouraged Islamic extremism.

He continues: ‘Free speech doesn’t exist in isolation, it exists in tandem with everything else’.

And the economic crisis, he suggests, has made the media much more vulnerable. ‘Support ecosystems for journalists have fallen away, freelancers are being sent abroad without adequate protection, media in many countries don’t protect their own workers hardly at all. It’s a whole combination of factors and each feed into a spiral’.

‘I could probably talk for an hour about all the factors – the rise of Putin, the rise of China, the election of people like Modi in India….

He is particularly aggrieved by the fact that the argument being made by the British government about scrapping the Human Rights Act is the same debate that Putin is leading in Russia about withdrawing from the European Convention on Human Rights.

‘Are we setting an example for Putin? How did we get to this point?’

He is disappointed that German chancellor, Angela Merkel, has approved a criminal inquiry into German comic Jan Boehmermann, for ‘insulting’ Turkish president Tayyip Erdogan, by reciting a poem that made sexual references about him.

On the whole, says Noorlander, the German courts are ‘quite good’. He suggests that the case will not get very far and even if Boehmermann is convicted, Noorlander believes it would not be constitutional under German law and would certainly get struck out by the Strasbourg court.

‘But the fact that he is being investigated is bad enough and sends the wrong signals,’ he adds.

In this environment, he suggest, the worst thing that human and civil rights lawyers could, is give up. Paradoxically, he notes: ‘In the face of all this negativity, we are seeing really interesting victories at constitutional courts around the world.

‘The Indian Supreme Court last year struck down laws that prohibited the leaving of insulting comments online, the Zimbabwean constitutional court struck down defamation laws and other criminal laws on speech, and the European Court of Human Rights and other courts are doing a good job on the whole, standing up for free speech and human rights’.

Even in Russia, he says, in the face of Putin trying to introduce regressive measures, ‘some measure of justice on the constitutional values’ can be achieved through the courts.

Focusing on the UK, Noorlander ridicules the growing trend of no-platforming and silencing those whose views are deemed by others to be too offensive to be expressed.

‘The sad thing it that is happening at universities, where students should have more affinity with tolerance and liberal principles,’ says Noorlander.

‘People seem to think that there’s a right not to be offended. There isn’t. You’ve got a right not to listen, but you can’t be offended by someone and say that they are therefore not allowed to speak.’

The approach, he suggests, should be to allow someone to speak and then to challenge what they have to say and expose their bigotry or wrong-headedness.

He ponders: ‘People are offended more easily, perhaps because they are confronted with a lot more stupid stuff on the internet’.

And the internet poses problems for the law and the courts when treading the delicate balance between privacy and free speech.

This is illustrated most recently by the celebrity threesome injunction, that seems to got stuck somewhere at the Supreme Court.

Noorlander isn’t too bothered by the case, which he says should have been a ‘slam-dunk’ decision for the courts, once the parties involved had been named in other jurisdictions. ‘I don’t understand why the Supreme Court is sitting on it for so long’.

He goes on: ‘What the law doesn’t understand is that freedom of expression is global and the internet is global. It still tries to pretend there is a part of the internet that it can control’.

Conversely, he points to the issue of libel tourism to illustrate an area where the English courts apply the law globally, where they should not, allowing foreign litigants to pursue cases in this country.

MLDI, he says, is working on a ‘telling’ case that ‘shows what is wrong with the libel laws’. It helped renowned Russian journalist, Olga Romanova, who alleged that a Russian businessman and former senator, Vladimir Sloutsker, had taken out a contract on the life of her husband, Alexei Kozlov, after the two had fallen out.

Sloutsker, says Noorland, ‘as every self-respecting oligarch does, has a house in London.’

He sued Romanova at the High Court in London over the comments she had made on Russian websites in Russian.

Mr Justice Warby ruled that he could hear the claim because Sloutsker ‘had, and has, a substantial and widespread reputation in this jurisdiction’ and although the posts were made on Russian blogs in Russian, to a primarily Russian audience, a significant number of people in England were likely to have seen them.

Romanova, says Noorlander, was unrepresented through most of the proceedings, while Sloutsker was represented by 5RB’s Adrienne Page QC. Warby ordered Romanova to pay damages of £110,000, a judgment that Noorlander explains, can be enforced in Russia and will bankrupt her.

Last month Romanova’s last-ditch application for permission to appeal out of time – on the point of jurisdiction – was rejected by the Court of appeal.

More generally, says Noorlander, while the substance of the libel laws in England is ‘not too bad’, defending a claim is too expensive and lengthy, which has a ‘chilling effect’ on what is published.

‘If a journalist gets a letter of claim, their first reaction is “shit, that’s going to cost me money” and that is really bad’.

He points to a study from Oxford University that found it was up to 140 times more expensive to defend a libel action in England than in any other country in Europe, except Ireland.

‘Lawyers are expensive and the procedure is complicated. If you want to run a responsible journalism defence, the number of hoops that you have to jump through and the kind of evidence you have to bring to a court, means it will take time and money.’

Considering the behaviour of the press in the UK, Noorlander’s verdict is that they are ‘a mixed bag’. The whole regulatory shake-up, in the wake of the Leveson enquiry, he finds unnecessary.

‘What led to Leveson was criminal offences being committed by the media, that the police failed to do anything about.’

And how does he rate the new press regulator, IPSO (Independent Press Standards Organisation)? He laughs and choking on his soup, splutters ‘it’s so fucking parochial’.

He likes the idea and model behind rival regulator, Impress, which he says is truly impartial, though it has not gained buy-in from the media.

‘This is one of the reasons why you can no longer hold up the UK as an example of what media regulation should look like. We have two regulators – one that is clearly not independent, hasn’t applied for recognition, yet has all the members, and the other regulator, which is independent, has applied for recognition and has only a few small outlets as members’.

On regulation across the globe and the escalating battle between Google and the French authorities over the reach of the ‘right to be forgotten’ ruling, Noorlander says greater balance is needed on both sides and a willingness to enter into a reasonable debate.

‘You don’t get debate anymore; you just get outrage on both sides. Google’s lawyers in America take an extreme view and the French data protection lawyers take an extreme view. You are never to get to a workable, just solution.

‘The American’s need to realise that there are other approaches to free speech besides theirs and so do the French.’

But, he muses, how do you reconcile that without going into systems of censorship.

Coming back to the UK, he says, there are many laws that need improving: ‘The anti-terrorism law is still quite restrictive — Miranda’s case showed that ordinary journalism can be seen as terrorism (though that was nullified to a degree by the Court of appeal); freedom of information, which was only introduced 10-15 years ago, is being nibbled at; contempt of court is a minefield for journalist; and the law is only beginning to understand how online expression and tweeting can’t be judged by the same rules as are applied to professional journalism.

He concludes wistfully: ‘The law’s got some growing to do, but when you look at other countries outside of western Europe, the UK is not so bad’.

Legal Hackette Lunches with Baroness Deech

Me 2015Over Chinese noodles in the House of Lords’ café, the blogging, tweeting, former chairman of the Bar Standards Board discusses divorce reform, disability discrimination, the demise of freedom of speech at universities – and, of course, legal regulation. 

Baroness Ruth Deech, former law fellow and Principal of St Anne’s College, Oxford, has had extensive experience of regulatory bodies, serving as chairman of the Human Fertilisation and Embryology Authority (1994-2001), a BBC governor (2002-2006), and as the first Independent Adjudicator for Higher Education (2004-2008).

In 2009 she was appointed chairman of the Bar Standards Board – a role she was to hold for six years, presiding over some of the most radical shake-ups to the bar.

She explains how she got the job after coming to the end of her time as adjudicator for higher education: ‘I was looking for a sort of portfolio part-time existence. I saw the [BSB] ad in the newspaper and I thought that looks boring and badly paid.

‘Then the ‘phone started going and all my legal friends started ringing up saying “Ruth, there’s a job. Nobody else wants it; it’s boring and it’s badly paid – you’ve got to do it.” I fall for that sort of thing, so I did it’.

But she reflects: ‘It wasn’t boring – sometimes very fraught, but never boring.

‘I felt it was very important and worthwhile, even though some of the barristers you had to deal with were a bit unwilling to be regulated’.

The former chair explains her two main aims during her tenure – to preserve the distinct nature of the bar through maintaining a separate regulator, and to cut through ‘the dreadful business jargon, unnecessary bureaucracy and interference’ in regulation.

The greatest achievements, she says, were ‘keeping the bar separate – we kept it from being crushed by the really rather ignorant Legal Services Board; we produced a new handbook, which was a mammoth undertaking; and we got alternative business structures done. We also managed to preserve the cab rank rule’.

‘Before I left, I looked back at the original business plan and we had achieved everything that was in it from reform of CPD to reform of pupillage’.

Deech is passionate about the importance of an independent bar, but rejects as ‘complete nonsense’ the accusation levelled at the BSB from some quarters, most notably the LSB, that the regulator was at times too close to the representative Bar Council.

‘We weren’t close to the bar. We were in the same building to save money. But if anyone thinks we were close to the bar, why would we have introduced QASA [Quality Assurance Scheme for Advocates], which the criminal bar practically went on strike about?’

And working to introduce QASA, despite strong opposition from the rank and file, she insists, was ‘the right thing to do’.

Every profession, she asserts, requires some form of feedback, appraisal and accountability. She was ‘baffled’ by the hostility to the scheme, which she says only ‘asks people to undergo a feedback regime every few years.’

‘I don’t really know what they were so upset about because I’m sure there are very few poor advocates. By the nature of the job you wouldn’t get very far if you weren’t good at it.’

She adds, if the complaints made by some at the bar about the inferior standard of solicitor advocates are right, QASA ought to help the bar. ‘If the solicitor advocates are really that bad, it would be a way of highlighting it and making them pull up their socks’.

In any event, she insists it was the LSB leading the charge for QASA as part of its ‘mechanical regulation model’, which was not tailored to the bar; rather a reflection of how it thought regulation is done.

‘Protector of the bar’

During her time at the BSB, Deech saw herself as a ‘protector of the bar, not for its own interest, but as the ‘real upholder of the rule of law’.

‘There is only one profession that will take any case that comes, under the cab rank rule, even if it’s for terrorists or against the government. Unless you have a cadre of people that are prepared to do that your legal system is not going to be fearless and you’re not going to have the rule of law’.

The reforms introduced under her watch, which included the first move towards ABSs, she insists, did not undermine the independent bar or create a slippery slope towards fusion.

Barristers, she insists, in whatever form they practise, ‘have a very strong sense of their own identity and their own mission’.

Deech, who is married to a solicitor, contrasts the two professions. ‘The solicitor’s ethos, as far as I can make out, is more business-like and about making money.

‘Some firms have ideas about what sort of work they’ll do – they’ll only do work for trade unions or whatever. So it’s a more limited range and it’s probably more dominated by overall earnings and marketing and so on.’

Adding swiftly: ‘I’m not saying that barristers aren’t interested in earning – you bet they are. But I think solicitors as a whole have more of that drive, while the individual barrister has something else to think about as well’ – defending the rule of law.

Praising barristers’ pro bono efforts Deech would like to see City law firms up their game, though she stresses it must not be seen as a way of filling the gap left by legal aid. ‘It’s the government’s job to fill the gap, not the solicitors’ firms’. And the proposed levy on City law firms to fund the justice system is ‘wrong’ she says, comparing it to getting doctors to fund A&E.

Bring back the old-style Lord Chancellor

‘It was a big mistake to have changed the role of Lord Chancellor,’ asserts Deech. Although it was a ‘strange role’ she observes: ‘The Lord Chancellor was both a judge, a member of the government and a legislator – somehow once in position and once they’d put on the wig and silk stockings and assumed one of the highest positions in the land, they turned into champions of justice and guardians of the courts’.

There is now nobody who serves that role, she bemoans. ‘There’s no one to champion at the highest level the rule of law and how justice is to work. That leaves a terrible gap in our government now. I regret very much the turning over of the job to lay people and to it becoming an ordinary ministerial post.’

She continues: ‘Mr Gove seems to “get it” more than Mr Grayling did. But the Lord Chancellor, even someone as intelligent as Mr Gove, is a politician – here to day, gone tomorrow and looking for the next job.’

She calls for a return to the ‘old-style Lord Chancellor’. ‘Only they have the overview of the court system, what’s going on and how it ought to be represented at Cabinet and fought for’.

The future of legal regulation

On this subject Deech is adamant, leaning in to the recording machine to ensure her views are captured: ‘I’d like to see the end of the LSB’.

She describes the Legal Services Act 2007, which created it, as the ‘worst Act I’ve ever seen, both in drafting and in structure’.

‘I have worked as a regulator under lots of different Acts of Parliament and that one is appalling – with its eight objectives in no particular order and its nightmare hierarchy of regulation’.

Deech continues: ‘I hope that the LSB folds its tent and goes. You could then leave the various professions within the legal system to regulate as they do now, with separate regulation and trade union elements.

‘You could have a forum where they come together and discuss things, but there is no need, and there never has been, for the LSB, the cost of which is horrendous’.

As indicated above, Deech is ‘certainly’ against the idea of a single legal regulator, insisting that small regulators are ‘cheaper, better and more in tune with what’s necessary’.

Pointing to the City to support her case, she says: ‘Look what happened in the financial world with the crash – one great big financial regulator – powerless.

‘And afterwards it was said that the one, big financial regulator was too far away from all the different parts of the financial market.’

Citing another example of a failing behemoth regulator, she turns to health and the Care Quality Commission. ‘The newspapers are full of stories that it missed this and didn’t see the other’.

Disability law review

A crossbench peer since 2005, since her second term of office with the bar’s regulator ended, the noble baroness has turned her focus to law reform.

She chairs the House of Lords’ select committee on the Equality Act 2010 and disability, looking at the experience of disabled people seeking justice against discrimination.

‘We are looking at whether disabled people are better off, or not, under the Equality Act 2010 compared with the prior situation where they had their own Disability Discrimination Act.

‘Now disabled people are treated together with all the other protected minorities – transgender, black, female and so on. And it may be that disabled people are losing out’.

Currently taking evidence, the committee, says Deech, has heard some ‘very sad stories’. Though whether they are the fault of the law or caused by a poor attitude and lack of understanding among employers and service providers, she is not certain.

‘The appearance is that employers don’t always understand what reasonable adjustments they’re supposed to make and service providers, like small shops and restaurants, don’t disturb themselves to make the right adjustments even when a disabled person turns up.’

And the legal aid cuts, she says, have made the problem worse, removing from the most vulnerable the ability to seek redress. ‘We are hearing that disabled people can’t afford to take the legal action they are entitled to and so they aren’t able to do it.

‘It’s no good having a decent law about disability if people can’t enforce it.’

Deech suggests that employers ‘must be tempted to behave in a more cavalier fashion’ knowing that disabled employees will be unable to afford to go to a tribunal to fight any discrimination.

Divorce Bill

Keen to reduce the costs and introduce more certainty into the process of divorce settlements, last year Deech began the process of steering through the Lords the Divorce (Financial Provision) Bill – a private member’s bill that would reduce spousal maintenance, introduce a formula for capital division and make prenuptial and postnuptial agreements binding.

Due to the peculiarities of the process, Deech must enter a ballot for the bill to progress, and she insists the need is ‘more urgent than ever’.

‘I want to make the whole financial structure cheaper and fairer. Every day there are stories in the press about couples who have spent three quarters or more of their assets on fighting each other, and in some of the richer cases, the legal costs amount to millions. It’s a terrible waste of assets.’

In her endeavour, she is boosted to have the support of divorce lawyer to royals and stars – the ‘Steel Magnolia’, aka Baroness Fiona Shackleton.

This was not her first foray into marriage reform. In 2013, she introduced an amendment to the Marriage (Same Sex Couples) Bill that would have extended its provisions to cohabiting family members and carers.

She has championed a long-running campaign on behalf of elderly sisters who have been living together for many years. ‘They tell me that if they were gay, they could get married and save on tax and inheritance duties.

‘I think they have a very strong case and I don’t see why sexual relationships should be privileged above others that may be much longer and much more co-dependent’.

Legal education and diversity in the profession

While Deech believes the diversity of those entering the bar is ‘absolutely first rate’, retention she accepts, particularly of women, is a problem. Though, she thinks it is no worse than in other professions. And she is proud that the Bar Nursery was set up on her watch.

Accounting for the lack of women in the senior judiciary, she explains there is still only a small number of women who in the profession who are of the age to sit in the Supreme Court.

‘I was in a class of 150 men and eight women. If you were a woman, doing law in the 1960s was almost like hanging a placard round your neck that said “I’m unattractive; I’m a blue stocking”’.

When it comes to the under-representation in senior legal and judicial roles by ethnic minority barristers, she suggests: ‘Maybe the way to the top at the bar is not to go for the altruistic areas like legal aid, but for commercial law’.

The former Oxford University Principal, who studied law, naturally believes a university law degree is a ‘very good education in itself even if you don’t come into the profession’. But she decries the cost of the Bar Professional Training Course. It is she says, ‘far too expensive – it’s actually a rip-off and it’s outrageous to pay all that money without even knowing whether you’ll have a job at the end’.

With a heavy heart, she says she is ‘not optimistic’ about any student’s chances, regardless of background, of getting one of the declining numbers of pupillages, especially in criminal and family law.

‘Maybe it’s cruel to encourage thousands of young people to come to the bar when you know there aren’t going to be jobs for them,’ she says, suggesting it will only result in a whole cadre of individuals unable to get into the bar, who ‘feel bad about the bar for the rest of their lives’.

Freedom of speech in universities

Deech takes an interest in university life. She is concerned that freedom of speech in under attack on university campuses, which she says, should promote and secure free speech.

Last month she tabled a debate on the issue and asked the government to consolidate the laws in relation to freedom of expression at universities and define many of the terms used in the Prevent Policy, introduced by the Counter-Terrorism and Security Act 2015 and which requires universities to ensure that where there are speakers with extremist views on terrorism or who preach non-violent extremism they should be challenged with opposing views at the same event, rather than banned.

‘There is a pincer movement – with on the one hand, students who for various reasons have become censorious, frightened, intimidated and intimidating, and have banned speakers and shut down magazines they disapprove of – and on the other hand, laws and the government’s Prevent Policy imposed on universities to control free speech.

‘People take offence at anything and feel they have a right not to be offended,’ she says and continues that freedom of speech is being curtailed to such a degree that there is ‘hardly any freedom of speech in universities at all’.

She is appalled at the trigger warnings that lecturers at universities across the pond are obliged to give their students, warning them where the content of the course might upset them in some way.

On the basis that universities are a ‘microcosm of the wider world’, Deech is concerned about freedom of speech more widely.

Background

Deech is the daughter of historian and journalist Josef Fraenkel, who fled Vienna and Prague from the Nazis, and arrived in Britain in the day that the Allies declared war on Germany.

She gained a first class law degree from St Anne’s College, Oxford, where she went on to become Principal and has a building named after her.

After graduating, she says she was ‘not tempted by the idea of practicing law, but always liked the abstract idea of justice’.

She did toy with the idea of practice, but recalls thinking ‘you needed money and contacts to get ahead, which I didn’t have’. She was, she says ‘quite ready to be deterred and I fell into a teaching job instead, which was fine’.

Had she practised, Deech would have gone for the bar rather than the solicitor’s profession, as the latter ‘struck me as more mundane’.

Though she suggests, she would not have made a good lawyer for two reasons. ‘The first is that I’m always convinced I’m right; so I wouldn’t be very good at seeing at the other side. The second is that I’d lack patience for the detail or for long drawn-out processes in court.’

On further reflection, she reckons she would have been ‘quite a good barrister’, but insists she has ‘no regrets’.