4th March 2022
Over at the Financial Times I have a piece on the extent to which lawyers are to be blamed for the abuse of English law by oligarchs.
https://twitter.com/davidallengreen/status/1499802380711387138
The article is, in turn, an elaboration of a post I did at this blog earlier this week – and it is a topic I have also tweeted about.
And one response has been to assume that my attempt to say that lawyers are not entirely to blame means that it is being suggested that lawyers are not at all to blame.
I have been careful to state – and explain – that lawyers are culpable, and that solicitors especially get to choose who they act for and in what way.
This is not good enough for some commenters – and I have been told that I am somehow making excuses.
But the problem is with any area of law that relates to dreadful things – oligarchs, torture, slavery, police brutality – there are both systems and individual agency.
This is an area this blog has explored before.
https://twitter.com/davidallengreen/status/1424059049360994307
And the focus on either systems or individual agency does not give you a full understanding of how the law and lawyers can enable such bad things to happen.
It has not been pleasant getting the ire that some want to dump on lawyers generally – but until and unless we can see that problems can be both systemic and personal, we are unlikely to resolve those problems.
And just jeering at lawyers, while satisfying, can be a substitute for meaningful reform of bad law and bad legal practice.
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So sorry you are getting abused for your views, which are reasonable and balanced. But even if they weren’t, they wouldn’t justify abuse. Thanks for your insightful blog.
You’re quite right to try-perhaps in vain-to reiterate the complexity here, especially after we’ve all had decades of exposure to false binary choices as a part of a politics strategy. But I would like to say that to me (someone with legal training) your stance (which I do not claim is your actual opinion) tends towards minimizing (a) that legal regimes are always in flux, and (b) (lawyerly!) that those systems are not necessarily the consequence of some long-ago political settlement but are instead a conscious, current effort to rewrite a great deal of civil law to favor only those with large assets. And-critically-there is essentially no countervailing force within the legal regime itself, and that I think, is a serious systemic failure of both the Bar and its members individually. Turning two-thirds of the population into economic serfs via rule changes is indeed something more or less like the reinstitution of slavery in a different guise. That there is no actual objection to any of this within the legal regime by the members of that regime is, at the end of the day, a shameful failing that must be laid at-and only at-the Bar’s door.
How, exactly, are the legal profession supposed to stymie a deliberate selection of policy choices, implemented by statute?
The primary reason we’ve seen an (apparent?) increase in successful Judicial Reviews is because recent Governments have been so utterly incapable of drafting coherent legislation.
Good to see you again in the FT DAG and it is unfortunate that the best commentariat of any newspaper in the world can be so vexingly irksome at times. But a couple of points. The barrister “cab rank” system is a wonderful concept but is undermined by barristers who choose not to drive a cab but a private limousine only available to those who can afford their rather more exclusively expensive rates. Equally there are less than scrupulous solicitors for whom money beats morals every time. No names no pack drill but some firms are well known to regular readers of Private Eye. Every industry has its black jokes whether theatrical agents who take home fifteen per cent of everything I earn to the the ninety nine per cent of solicitors who give all the others a good name. Be thankful you are not in Public Relations or an Estate Agent. The real scandal is that access to the law is beyond the ordinary citizen and only accessible to the rich and for libel and theft of IPR from small companies, to the super rich as the starting price is minimum £100,000 per annum at the High Court (otherwise try if you can to get one of the new specialist private equity funds to finance it through a no win no fee once you have spent a minimum £50k upfront to “validate” your claim). Scarcely equal and equitable access to law, and that even before the law is an ass and the lawyers indolent… Having vented that, I have a good friend who is a committed and diligent criminal law barrister who earns a pittance and my daughter’s boyfriend (a brilliant and conscientious young man with an MA in philosophy) training to be a government lawyer – maybe even in your field of constitutional law. There is the whole spectrum of human frailty in every walk of life.
An interesting article but I feel it misses the nub of the matter.
I am sorry if OGH feels lawyers are getting a bad press. An old problem – see Matthew 23:1-39 – and certainly predates Matthew etc. Other religions and philosophies are available but human nature is common across them all. There are probably many fine and honourable lawyers who do the decent thing but there is something special about law and lawyers.
I don’t think many care about the finer points of libel law – the law is too expensive to be of any use to most of us.
The real problem is that lawyers are not like other professionals – surgeons or engineers or bankers – lawyers are intimately tied in with government. Cardinal Richelieu seems a good example of the overlap between law, government and religion .“If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.”. Excellent guidance for any Attorney General and at the centre of distrust of lawyers.
Seems to me the problem is the making of law, it could do with taking away from politicians and put in the hands of professionals who are answerable to the people and the courts – also taken away from the politicians. Let the politicians state clearly and publicly what the law is to be and answer for the consequences.
Some of the comments to the FT article are out of order. Your article seems to have hit a nerve with some people, why, I can’t imagine. Thank you for keeping the debate going.
What you say should be bleedingly obvious to anyone. It’s the same in any organisation. Bad things happen partly because of the way that a system is designed (or has evolved) and partly due to people taking advantage of that. Where a client is specifically wanting to circumvent the rules, there will always be some who cannot resist the temptation to respond; and some do so with more guile than others. These things apply universally, and are not limited to the legal industry.
As a tabletop role player of many years, I will admit to a certain fascination with getting deep into a ruleset and finding unexpected combinations/exploits – Most of which are done as intellectual exercises, rather than any genuine attempt to play them at the table.
Sadly, no oligarch is going to pay me £500k to hear about my Fighter/Cleric/Bard Stackable Buff Machine build, but I could readily imagine a very learned individual or team accepting a well-paid challenge from a wealthy client just to see if a particular thing was possible.
As the philosopher TL Marrow once said, “Don’t hate the player, hate the game”
Perhaps I’m feeling particularly argumentative today, for I find myself reading this article and thinking, “No, it’s worse than that.”
Many of the elected Members of Parliament and I dare say a fair few of the House of Lords are in fact legally trained. Yet despite this preponderance of legal acumen in the elected chambers of the UK government, the laws produced seem to be, how shall I put this, somewhat porous.
The fact that UK financial laws allows ultra-wealthy foreign nationals to bring money to the UK is by design, not by accident.
Now, whether that design came about thanks to strategic donations to political parties, whether it came about through self-interest of those writing the aforementioned laws, whether it came about by ignorance or even accident… this aspect of the current state of affairs is not entirely clear.
But here’s the thing: how is it that a legal framework that has been deemed entirely acceptable for a significant period of time (at least since the governing laws were introduced) is suddenly found to be suspect and in need of revision when a random external event exposes the gaps in legal coverage?
Up until now, apparently, it has been perfectly OK for unknown nationals to own vast swaths of the UK, to have UK property owned by off-shore corporations that may or may not been funded by criminal proceeds, without Westminster batting the proverbial eyelid.
Yet now that something unpleasant has happened and events conspire to demonise a particular community – the oligarchs – we’ve hit that old chestnut, “Something must be done!”
I have to ask myself: why is it that our elected officials have been perfectly happy to ignore these loopholes up until now? The most charitable explanation would be the “Eye of Sauron” defence (with apologies to Tolkien), the idea that the eye of the law sweeps over the land and as long as you keep your head down you can avoid scrutiny – but once you draw attention to yourself, you should expect unpleasant consequences.
But beyond that the alternative becomes much less palatable: the idea that elected officials understand that the laws they write have holes large enough for a coach and horses… but they have no incentive to do anything about it because it benefits their donors to maintain the status quo… and thus benefits them by proxy. That, I think you’ll find, is “Corruption 101”.
Ask yourself: how can it possibly be acceptable for UK law to allow property ownership without being able to identify the owner or the source of the funds. If you doubt that this is in fact, absurd, try this: go to your nearest high street and find any financial services provider offering any form of savings account. Try and open an account with them and just wait to see what proof of identity information they demand before taking your business. Try to put money in the account and see what proof of source they demand before they accept it.
It is a sad fact that you or I would face more scrutiny for trying to put a deposit of £100 in a high street savings account than an unknown shell corporation would face when purchasing a £100 million mansion in the most exclusive post codes of London.
Yet this, apparently, is acceptable to both our government in general and the Treasury in particular.
What could possibly go wrong?
Snort.
Any half experienced “instructing solicitor” or counsel’s clerk will know the cab rank principle is easily circumvented but there again many lay people believe Rumpole actually existed.
Solicitors for their part have been subject to money laundering regulations for over 20 years. The idea that solicitor/client communications are subject to criminal sanctions is not as fully appreciated as it should be.
Certain MPs are proposing to pass urgent supposedly much needed legislation. Why have they all forgotten about the little used Sanctions and Anti Money Laundering Act they passed as recently as 2018?
The Wolf Reforms to Civil Justice where supposed to transform civil litigation into a fast track super highway for more people than ever before to use. Try to explain how this works today to a person with say a whiplash injury.
Modern computers lead to a faster and greater flow of information but somehow Companies House have been able to buck this trend. If you want to find something out about a limited company more information was available years ago.
They say that the first casualty of war is the truth. This morning I do not know whether I can believe a pie chart purportedly from a Cabinet Minister. If it is authentic then some leading High Street banks need to be named and shamed.
When Zelensky politely declined Biden’s offer of a lift and a comfortable exile for himself and his family few people realised then what was at stake. A lot more people are going to realise in the weeks ahead………..and they are not all going to be lawyers !