10th November 2021
Today is the first year anniversary of this daily blog.
Woo hoo.
Every single day since 10 November 2020 there has been a post on this site: some long, some short, some ignored, and some which have been very popular indeed.
There have been 1.5 million(!) hits on this blog in the last twelve months.
Thank you to everyone who reads and promotes the posts – and a particular thank you to those whose kind donations make it possible for me to justify the opportunity cost and time to keep this daily blog going on a free basis for everyone.
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So today let us look at a story at the heart of law and policy and politics: lawyer-politicians.
The story of Geoffrey Cox is in the news – and over at Joshua Rozenberg’s blog, there is a sterling defence of Cox.
And if you want a sterling defence of Cox then there is where you should go.
This post is instead a half-hearted and implicit defence of Cox.
It is however a defence of having lawyer-politicians, arguing from general principle rather than unattractive facts of this particular case.
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Do we want lawyer-politicians?
By this I mean, members of either house of parliament who are also practicing lawyers.
In the current (unreformed) house of lords, there is no doubt that there is immense benefit from having cross-benchers who are practising lawyers such as Davids Pannick and Anderson, as well as retired law lords who may also be earning fees as arbitrators or mediators.
And if that is to the benefit of the house of lords then it is difficult to argue from principle that it would also not be a benefit to the commons – even if the quality of the lawyers is less stellar.
The office of lord chancellor (which is also secretary of state for justice), and the jobs of the law officers (attorney-general and solicitor-general) all presuppose that there are competent lawyers in parliament to fill such posts (though the lord chancellorship can also be held by non-lawyers).
Practising lawyers can only be banished from the house of commons once there has been proper consideration of what would then happen with the role of law officers.
Maybe it is time to take these roles out of the hands of politicians; maybe not.
But that is a decision which would have to faced before we get rid of practising lawyers from the house of commons.
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It is a public good that there lawyer-politicians in parliament.
Law-makers make laws, and so a professional background for politicians in dealing with laws is thereby a public benefit.
It is also a public good that lawyer-politicians can be candid and semi-independent law officers telling the government unwelcome truths.
The problem with the current law officers is not that they are lawyers, but that they are unwilling to be robust in their special autonomous role.
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Law is one of the main ways of crafting public policy, and so the better laws we have the more public policy will benefit.
And the better the understanding of our legislators about how law works in practice, the better public policy will be generally.
We should therefore be glad there are lawyer-politicians in general, even if some examples are difficult to accept politically.
And if the objection to a particular lawyer-politician is political, then it should be a matter for politics how that particular case is dealt with.
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It could be argued that on election, any lawyer who becomes a member of parliament should cease practicing, and become a full-time politician.
They would still have the benefit fo their legal training and experience.
We would still have lawyers in parliament, they would just be former practising lawyers.
That is a good argument.
But my fear would be that this would limit the number of lawyers who become members of parliament – and already there may be too few for there to be competent law officers (and shadow law officers).
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All this said, however, there can be little sympathy for Cox.
Presumably he cannot even hide behind the cab-rank rule, as that famous rule that barristers must accept instructions does not apply to foreign work.
And voting in the commons from a tax haven, and (it seems) working in that tax haven from his commons office, is not the most impressive feat for a lawyer-politician in the great traditions of the Bar.
The argument about ‘experience’ does not wash either, as a Queens Counsel can be presumed to have valuable experiences in any of their client work.
So it is hard to make a positive case for Cox, and so I will not.
He is, however, saved by the general argument: that if we are to have lawyer-politicians then there will have to be the Cox apples in the barrel as well as those whose practices are less, ahem, glamorous.
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So I mark the first anniversary of this daily blog with a defence of lawyer-politicians generally (but with no explicit defence of Cox in particular).
Thank you again for reading, promoting and supporting this daily law and policy blog, and I will see how I can keep up going on this daily basis for another year.
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Before I even read the blog, I just wanted to say “happy blirthday”.
Though I can hardly believe it has only been a year! It feels like we have been relying on your wisdom and observations for much, much longer than that. Presumably this is just the anniversary of you doing something every day, and we still had occasional posts from you before that (including your Jack of Kent days).
And also to say, on this anniversary, “thank you so very much”. It has been incredibly valuable over the last year (and before) and you give us much to consider.
any lawyer who becomes a member of parliament should cease practicing, and become a full-time politicians.
Two ways to go here; either
any lawyer who becomes a member of parliament should cease
practicing, and become a full-time politician.
or
any lawyers who become members of parliament should cease
practicing, and become full-time politicians.
(I would also prefer “cease to practice”, but I realise that is now pedantic :-()
Thank you for putting the ‘opposing’ point of view. A few comments:
First, because it stands out, is your statement “this would limit the number of lawyers who become members of parliament – and already there may be too few for there to be competent law officers (and shadow law officers).” This is the first time I have ever heard anyone suggest that there are too few lawyers in politics. I would argue that it is inconsistent for a locality-based representative body to also be expected to have a ‘quorum’ – specified or not – of any specific profession. That is surely what the House of Lords is for, if it is for anything. Moreover, Government has access to as many lawyers as it likes: it should not need to call on elected members to fill specialist roles.
Second, I think there would be little general objection to any professionals who enter Parliament continuing to maintain their professional standards by doing part-time work, if they so choose. This applies to doctors, teachers, nurses, Trade Union officials and should equally apply to lawyers. However, there should be two stipulations: first that the work should NOT either influence or be a consequence of their elected role – so no vague ‘Consultants on Public Affairs’ and second that the work should be part time, and remuneration capped at, for example, 50% of the MP’s salary. Obviously the definition of ‘part time’ and the appropriate cap are up for discussion, but not the principle.
Third, please may we have no more of the “My constituents are happy with this arrangement”. In our FPTP system, voters get no input into the choice of candidates and as a matter of observed fact the threshold at which the character or activities of the specific member is in almost every case very high, meaning that it is the party, whether locally or nationally, that determines the candidate and the nature of the constituency that determines the result.
Other than that, nothing to discuss!
Sorry: penultimate sentence, already rather convoluted, should have read:
“In our FPTP system, voters get no input into the choice of candidates and as a matter of observed fact the threshold at which the character or activities of the specific member a f f e c t s the outcome of the b a l l o t is in almost every case very high, meaning that it is the party, whether locally or nationally, that determines the candidate and the nature of the constituency that determines the result.
If there is a group over represented in the House of Commons then it would seem to be ex military types.
I crudely calculated back in 2014 that there should only be four, if the make up of the House were to reflect the proportion of the jobs in the economy then, broken down by workforce jobs by industry (SIC 2007).
Some examples:
C : Manufacturing: 7.8% of the total number of jobs or 51 MPs.
G : Wholesale and retail trade; repair of motor vehicles and motorcycles: 14.7% or 96 MPs.
M : Professional, scientific and technical activities: 8.4% or 55 MPs.
N : Administrative and support service activities: 8.3% or 54 MPs.
O : Public administration and defence; compulsory social security: 4.7% or 31 MPs.
P : Education: 8.8% or 57 MPs.
Q : Human health and social work activities: 12.9% or 84 MPs.
Just to confuse you a tad, a lawyer directly employed by a concern, the primary business of which is manufacturing, is counted amongst Group C.
If the same concern employs a worker on the shopfloor through an agency then that worker is not counted as working in manufacturing as their employer, the agency is a service sector business.
The latter practice has expanded dramatically since the 1950s along with outsourcing etc so never believe a journalist who uses the latest version of the figures above to say how many jobs there are involved directly in manufacturing.
They are bound to be wrong.
I would love to know who in Parliament came up with the dread phrase, “you are not unentitled to …” in Social Security law.
More than once, as a Jobcentre Adviser, I had to explain it was a double negative to a baffled, if not worried claimant, clutching a letter, containing that particular phrase.
And God help us, if the claim had been backdated three months from its start and then no payment awarded, because Income Based Benefit received during that period was set against the amount of the backdated new benefit that would have been paid etc.
May be if some MPs practised Social Security law, it might be worded a little less confusingly?
I am probably asking too much for it to be user friendly.
I certainly think it is of benefit if Parliament includes people who have been at the sharp end of the policies that it implements and the laws that it makes – and that includes social security, and immigration – but I’m struggling to find any legislation or regulation that includes the phrase “not unentitled”. Can you provide an example of its use, please.
I can’t find “not unentitled” when searching at http://www.gov.uk and only a few mentions of “unentitled”. The word “unentitled” does not appear at all at http://www.legislation.gov.uk
Perhaps this comes from some guidance or forms, or was invented by a local manager, rather than the underlying legislation or regulations?
It used to be found in Social Security decision letters and the wording was clearly fixed so it may have come out of Social Security case law.
A lot of legislation like Topsy just grows.
I think one sentence in the Supplementary Benefits Act 1976 was all the primary legislation on which a power to re-assign the payment of a benefit from a claimant to a nominee, with the claimant’s agreement, was entrusted to an appropriate officer in the relevant department.
The nature of that unentitlement wording was on a par with a standard letter inviting you to an interview at a Jobcentre that ended with a paragraph asking you to make your way there by the cheapest means of transport if you wanted to have your travelling expenses re-imbursed.
Clearly, whoever signed off on the letter felt no need for it to say something along the lines of “we look forward to seeing you” or similar.
If memory serves a recipient might have complained about the abruptness of the ending of their invite letter to a mandatory interview in a Citizen’s Charter form (that did not explicitly invite compliments or satisfaction with a public service).
John Major, who ran away from the circus to become an accountant, was not a lawyer and his much trumpeted charter, famous for its motorway cones hotline, had no legal standing.
Both you and Joshua Rozenberg make strong and good cases for why parliamentarians should be able to continue practicing law. There are benefits to parliament from having them. And there are benefits to parliamentarians from being able to maintain practising experience for any profession (including medical staff continuing to work in one form other).
I do, however, agree more with your analysis of the specific circumstances relating to Geoffrey Cox than Rozenberg’s. An astute and reasonable lawyer-politician would have a good sense of what might be acceptable legal work to undertake as an MP and what might be an appropriate way to do it. Cox seems to have failed this test and has therefore left himself open to justified criticism.
Rosenberg also sets out a strong argument for why banning second jobs in general is a rather knee-jerk and unnecessary response. Second jobs, per se, are not intrinsically bad. But second jobs that introduce conflicts of interest, unfair lobbying or influence opportunities, or potential corruption are very, very bad.
How many members of/what proportion of memebers of Parliament are lawyers? I remember there being a bit of a fuss kicked up in some circles a few years ago to the effect that there were too many, ?maybe about a third.
Without wanting to appear irksome, can we make the assumption that having current or former experience in practicing law makes for a better legislative chamber overall? I am not convinced.
Part of the Rozenberg defence is that being an MP is a part-time role given that a sixth of the House of Commons will also have jobs with the executive.
Yet despite MPs having plenty of time to reflect on legislation according to Rozenberg, there appears to be little scrutiny on the effects of bills themselves given that the timetable is controlled by the executive for the majority.
Given we have seen quite senior parliamentarians argue against the scrutiny of bills (the Johnson agreement with the EU comes to mind), the presence of lawyer-politicians hasn’t really had any influence on raw politics.
And to be honest, I am not sure that MPs, whether trained in law or not, have much idea on the consequences of legislation. Let me give an example:
Deprivation of Liberty Safeguards was a small ad hoc amendment which was designed to cover a very small cohort population (less than 100). It has grown via a Supreme Court decision with Brenda Hale’s “a gilded cage is still a cage” comment to be applied to 10s of thousands, cost 10s of millions, has allowed local authorities to apply the DoLS test in people’s private homes without any legislative permission and is mainly a tick box activity which hasn’t provided the protections envisioned.
While I appreciate your defence of the trade of law, I feel that the benefits of lawyer-politicians is oversold. That has less to do with the merits of lawyer-politicians and more to do with the limitations on our current legislative chambers. There is a simpler question which I feel needs asking first – what do we want MPs to be? I doubt whether there is much consensus on that question, let alone what additional qualities do we want represented.
For all the lawyers in the commons, parliament seems to pass a lot of dreadful law. I’m not referring to law that is dreadful in its intent, though we have plenty of that, but law that is dreadful in the way it seeks to achieve its intent. Too often laws fail to achieve their intent very well, or at all, or act to adversely affect activities beyond their intended scope. (Though occasionally these features are the secret intent of the legislation.)
Presumably all these lawyers in the commons ought to be able to offer some kind of quality control. Maybe things would be even worse without them? Sometimes they do warn this won’t work very well, and aren’t listened to. And sometimes the problem lies in policy design, for a psychologist, engineer, sociologist, economist, etc, to identify, rather than a lawyer. So are there material numbers of examples where the lawyers themselves should have picked up how ineffective or misdirected is some piece of draft legislation and failed to do so?
I’m also worried that there might a conflict of interest in having so many lawyers in the commons. Whatever kind of person there is in the commons there will doubtless be some kind of conflict of interest related to their private interests. But lawyers by sheer number are by far the greatest proportion. Is this why Britain has too much law? Or, more accurately, law that creates work for lawyers, that we could well do without? We are not as bad in this as the US, but we are worse than much of the continent. It can’t be easy to fix when so many MPs are lawyers, they’d be voting themselves out of a job.
I should justify that claim. One of my main professional concerns is why construction costs so much more in Britain than on the continent, especially infrastructure. There is no simple or single reason for it. But one of the more frequent reasons identified as contributing to it is our legal system. As a f’rinstance, an infrastructure lawyer reported working on a railway construction contract in Spain. The contract, he said, was only 30 pages long, whereas in Britain in would be over 1000. Countries like Spain with a code type of legal system have much of this stuff written into code. So contracts can be short, and the ways of working they imply are well known and well practised and so result in fewer disputes. Possibly even worse, the processes to get construction legally approved are more time-consuming and hence expensive in Britain, providing much employment for lawyers, in comparison to the continent.
Happy birthday to the every day posts which I find hugely valuable and entertaining.
On the point of lawyers being put off entering parliament if they had to stop practicing, you don’t make clear whether that would be due to an inability to resume a career after leaving parliament or due to the loss of income that continuing to practice provides. If it’s the former then it would be relatively easy to carve out an exemption for the minimum CPD and practice experience to maintain their registration (as many MPs who are doctors, nurses etc already do). If it’s the later or the prospect of a loss of career trajectory, then I’m afraid I have little sympathy, being an MP is a public service.
More generally, I dislike the special pleading for lawyers in parliament. Parliament enacts legislation that operates across every sector, often at the most minute level of detail (the Identity Cards Act 2006 Schedule 1 is in essence a database schema). Yes the laws need to be clearly drafted – that’s what we have the parliamentary drafters for. But more importantly we need engineers, social workers, logisticians, doctors, retailers, teachers etc who understand what the effect (both intended and unintended) the legislation will have in the real world.
I agree with the argument as to the benefits of having trained and experienced lawyers in Parliament ( disclosure I am a retired local government lawyer) the issue for me is where does one draw the line about outside work. I think there is a similar argument to be made about other MPs bringing outside experience to their role be it as a medic or a miner. It’s when that expertise is abused or lobbying takes place that a major problem arises. The recent Paterson case being a good example and I wonder if a mere suspension of 30 days is sufficient sanction.
I suppose we need to ask about the main purpose and role of MPs in the modern age. Are they primarily there to pass legislation, in which case it makes sense to include a leavening of lawyers with experience of interpreting and applying the law? Are they mandated to represent the views and opinions of their constituents? Or to hold the government to account, much more of a party political role? Should they act as a form of social worker, dealing with the multitudinous problems of their constituents?
Of course Parliament needs lawyers, like it needs doctors and nurses and social care workers, and soldiers and sailors and airmen, and engineers and scientists, and farmers and fishers, bankers and business leaders and business owners and the self employed, and shop workers and office workers and manual workers, and bus and train and lorry drivers, and people with experience of unions and local government and public administration, and 101 other jobs. It needs diversity.
But most of all it needs people who are fully engaged in being an MP – which is a full time job, paid approaching three times median earnings – and not spending large chunks of time on, or being paid significant amounts for, other activities.
I am not aware of any solicitors who have remained in private practice after being elected as an MP – not recently anyway – perhaps someone can suggest a counterexample, but it would be a bit like remaining an active GP while serving as an MP. We are really talking about barristers, who by and large can pick and choose what they do on a self employed basis.
Membership of the present House of Lords is slightly different, given the number of people involved and the per diem pay for attendance.
“To be honest, I found it intellectually numbing, and tedious in the extreme. I most certainly will not miss the constituency work. I have to tell you that honestly. Its twenty-two years of the same cases, but just the faces and the people changing. It might sound a little disparaging to say this about people’s lives and their problems and we did deal with them … but I got no satisfaction from this at all. I really didn’t. And all you were was a sort of high-powered social worker and perhaps not even a good one at that. I will miss being chairman of the works of art committee … because I was having so much intellectual enjoyment, and indeed just straightforward fun, out of reorganising our collection, and that kept me in touch with history.”
Tony Banks in an interview with Robin Oakley on BBC Radio 4, 26th November 2004 on his intention to stand down as a Labour Member of Parliament.
“One of the reasons I came into politics was because I thought I lacked the skills to be a social worker.”
Margaret Beckett MP on BBC TV, Question Time, 13th November 2008.
I don’t think the ‘Cox issue’ is about the duality of role. Neither do I think it about lawyer-politicians
It is, as with Mr Patterson, about integrity, honesty and decency (an ‘old-fashioned’ word, all too often abandoned, but which should be restored to prominence).
In the public mind, I also think the question as to whether being an MP is a ‘proper’ job.
Most people have one job which, arguably, if undertaken to its best efficiency and dedication, will absorb an individual’s reasonable working time.
If the proper demands of the job do not fulfill this and is thereby essentially a ‘part-time’ job, then maybe a review of such position is warranted, and the pay structure that goes with it.
To the public, it looks like individuals are ‘breaking the rules’ and getting away with things they should not when, they themselves, are punished. And I have no doubt that latest revelations are little more than the ‘tip of the iceberg’, as regards the reality. Whether all will come to light is doubtful but I applaud those in the media, and others, who are attempting to shine a light into these doubtless murky depths.
Mr Cox previously held a superior position in the judicial system. One would like to think such individuals gain such powerful and important positions, by reference to the above qualities. Think again.
When such people are seen as lacking integrity, decency, and honesty (and my God! could I enlighten as to where I have experienced the failings of all this with serving judges!), then public faith and confidence (quite rightly) takes a serious nose-dive.
I, for one, and by experience, view many of those in positions of power – not least the UK judiciary – with considerable suspicion. And rightly so.
PS Another old-fashioned word that also appears to have lost all significance in the modern UK establishment: ‘morality’. I lament its passing.
Of course we need lawyers in parliament, but preferably good ones. Previous attorneys general or lord chancellors have been serious heavyweight lawyers. I do not need to make the comparison with the present lot. Where is the modern day Hartley Shawcross, or F E Smith?
We also need experts in other callings – doctors, trade union officials, accountants, whatever. It is more important that they act as parliamentarians and as professionals in their own field than spend the time as under-qualified and supernumerary social workers, as do many MPs these days.
Re this from the JR blog: “That view is at odds with the view of parliament that I — and, I am sure, many others — have held all our lives. Being a backbench MP should not be a full-time job. Our representatives in parliament should remain in touch with the real world”. 2 points – 1. Why shouldn’t it be a full time job? 2. Spending more time on constituency issues would keep MPs in touch with the real world. How does Cox’s work in the BVI keep him touch with the real world of his constituents?.
I think we should generally draw our politicians from a broadly representative cross section of the populace, I don’t know if we have too many lawyers in Parliament but what we clearly have far to many of is Landlord MP’s compared to “tenant” MP’s.
One quarter of all Conservative MP’s are also landlords, nearly 20% of all MP’s receive revenue from letting out property. Do we think anywhere near 20% of the population is a landlord? How many MP’s are tenants? (as a ratio of the number of tenants in the country I would aver that in the house of Commons it is a tiny minority) Do we think having so many landlords defining housing legislation is a good thing or a bad thing? This strikes me as a clear conflict of interest. but then, as we have seen this last week, there are quite a few conflicts of interest when it comes to the people who write and decide on our laws.
I am amazed that neither Johnson nor Rees-Mogg has reached for his much thumbed copy of the Oxford Book of Quotations or a book of Latin quotations so as to observe that in the case of Cox, “Uxorem Caesaris tam suspicione quam crimine carere oportet.”
I think the commons would be better off without any lawyers!!! Independent law officers would be a better choice.
Congratulations on your birthday! it’s an impressive feat, a daily post on the law and policy.
May I make a couple of suggestions? Firstly, I think you could have a rest at the weekends, and leave the posts for weekdays.
Secondly, for the benefit of those who aren’t lawyers, an explanation of some legal terms, particularly those in everyday usage. For example, you often see people denying something which is blatantly obvious. I’m thinking here of people saying they did not “know” that a schoolgirl was pregnant when anyone with eyes could see that, and “know” it. Here, “know” seems to be similar to a witness in court; if the schoolgirl didn’t tell people she was pregnant they “could not know”. But this type of usage smells of duplicity.
Congratulations on a year of daily blogs.
Second jobs for MPs are good within reason.
MPs who abuse that privilege should be reprimanded and face their electorate as can be the case now.
MPs earning very large sums do not look so good but isn’t a reason for removal.
MPs following the party whip is inevitable but the high earning MP with other jobs / consultancies voting to further their interests or removing others entitlements looks very bad.
Constituencies vary and the workload varies. Should the workload be a factor in what the MP does outside constituency business? That would be impossible to regulate.
Does the legal experience of MPs benefit the workings of the House of `Commons? Where is the evidence?
Far greater benefit is evidenced by some of the heroic back benchers who do not tow the party line but question and interrogate. Frank Field springs to mind, though there are many on all sides of the house. Their contributions may come from past or recent experience or employment but the essential quality they demonstrate is public service.
Some two years ago I had never heard of Geoffrey Cox.
I then informed an impression of him based upon what I read in the Press. That impression was that he was an avuncular, if somewhat bombastic QC , whose legal opinions were not always to the liking of the Government of the day.
I was led to believe also that he was a criminal lawyer and that being a criminal lawyer was intellectually akin to going to Oxbridge and gaining a third class degree.
Today I read that he is in fact highly paid lawyer specializing in off shore tax havens although he largely (if not totally) escaped scrutiny in the long time largely forgotten Panama Papers.
Perhaps we should all have second jobs these days. It will help cover up the cracks in the labour market and must surely be the patriotic thing to do.
.”What a fool I was…………”.
I suppose the unfortunate thing about this little spat is that it unhappily reminds us that lawyers and politicians are frequently cut from the same cloth. Moreover, subject to the same vices and temptations as the rest of us – but better at preventing the evidence coming to light.
As they said of Nixon ‘he may be a liar, but at least he’s our liar’ (a few expletives omitted).
On MPs with second jobs… perhaps the problem is when being an MP is the second job, whatever the first job might be.
Like many others, I’d like to congratulate you on the anniversary: Well done for producing a really interesting and well-informed blog! (If the workload is getting too much, a reduction to a workday frequency would be absolutely fine, but just as an aside.)
Second I read the blog via the email newsletter this morning and my first thought was ‘hairdressers’, we need more hairdressers in parliament: They can spot bulls…. sorry nonsense a mile off, have good knowledge of the human condition, can deliver an excellent service and have business acumen. For any questions as regards legal drafting, there are civil servants to consult.
The above paragraph is a slightly facetious comment, but it is intended to have a serious core – the Westminster parliament has got way too many people who have come through the Greater London, Oxbridge, SPAD pathway; for a poor-ish person in the provinces it is almost impossible to break into this bubble, given that nowadays many jobs require (unpaid?) internships and other (prestigious) experiences to be considered.
There have been some comments that race and gender are not the only diversity criteria to be considered, but that class should be added as well.
First time commenter, long time reader. I’m actually astounded, I must have been reading this blog since very shortly after its inception without realizing that was the case, always thought it was a long running thing I’d only just come across.
But it’s become one of my favourite blogs – some interesting takes on news I know about, some posts that are about things I didn’t even know were happening. Both are very well written and superbly interesting.
So thanks for all your work on this. And when you check your analytics to see where your site visitors are from, I’m probably responsible for a chunk of the ones from Indonesia :)