5th September 2022
Friday’s blogpost on that “devastating” legal opinion has been very popular – with over 30,000 views.
But there were some things missing.
And one omission in particular was deliberate.
The post did not mention either of the authors of the opinion.
This is because, for the purposes of the blogpost, it did not matter who the authors were of the opinion.
The authors could have been two unknown newly qualified barristers at some obscure chambers.
Or the authors could have been the ghosts of Thomas More and Edward Coke.
It did not matter.
And this is one of the great things about law – for it is the content of a given legal document that usually matters, and not the identity of the lawyer.
In this way, a pupil barrister or trainee solicitor can sometimes trump a QC or a partner, just as a cat can look at a king.
(And this is one reason why it is so important that all lawyers should have access to a fully resourced law library, rather than such facilities being only for top chambers and big law firms.)
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The omission was also deliberate in that so many other pundits were placing huge reliance on the reputation of one of the opinion’s authors, David Pannick.
(Pannick, for example, acted in the two Miller cases against the government and he is regarded as the leading barrister in England on constitutional and public law matters.)
It was almost as if he had been instructed just so it could be said: “look, this is what even Pannick says”.
As such, it was almost as if he was being used as a brand, rather than as an advisor.
A similar thing recently happened, you may recall, with the attempted use of the Treasury Devil, James Eadie, to say that the Northern Irish Protocol Bill was lawful under international law – see my posts from June here and here.
As I then described: what appears to have happened was that the government got its convenient advice from the current Attorney General; somebody insisted that this still had to be referred to First Treasury Counsel – the Treasury Devil; a clever compromise was reached where it would be referred to him on the basis of certain assumptions, so as not to undermine the convenient legal advice; and the Devil, while accepting those assumptions, provided an unhelpful view on the merits of those assumptions.
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In both cases, there seems to be a cynical exercise to get a convenient-seeming opinion from [Pannick/Eadie] so that it could be said that this distinguished lawyer had supported it.
Here, the barrister involved is not to blame.
Seriously.
The so-called “cab rank” rule means, among other things, that a barrister cannot refuse an instruction just because of the identity of the person instructing them.
Once the Prime Minister and his chosen criminal defence firm instructed the authors of last week’s opinion, those authors had little choice but to accept the instruction.
And Pannick – himself a parliamentarian – has a record in dealing with matters concerning parliamentary procedure, such as his support for Anthony Lester.
Who knows what the authors of the opinion thought about their work being used in the way that it was?
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If a legal position is being urged by politicians or pundits just on the reputation of the lawyer who has (supposedly) endorsed it – be it Pannick or the Treasury Devil or anyone else – then it is suspect.
For if the legal point is sound, the reputation of the lawyer is irrelevant.
And if the legal point is unsound, the reputation of the lawyer will not save it.
This is especially the case when – with both the Pannick and Eadie advices – we do not have the crucial, prior “instructions to counsel”.
As techies would say, without sight of the instructions, such opinions can be instances of “garbage in, garbage out”.
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As it happens, the thrust of my post on Friday is also the view of the former Conservative justice minister David Wolfson:
My contribution in @thetimes as to whether contempt of Parliament requires intent.
I agree with Lord Pannick QC that intent is critical – but intent needn’t be contemporaneous with the statement.
A deliberate decision not to correct the record ought also be treated as contempt. pic.twitter.com/ncICbjw6t2
— David Wolfson (@DXWQC) September 4, 2022
(And Wolfson is about as un-woke a lawyer as I am a woke legal commentator.)
And it also the view of the professor of public law at the University of Cambridge:
If the Privileges Committee inquiry ends up being cancelled on the basis of the Legal Opinion published today, it will be a constitutional outrage — for reasons I’ve explained here: https://t.co/lFNjul3Zz9 https://t.co/y8gR7WiYLf
— Mark Elliott (@ProfMarkElliott) September 2, 2022
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Such concurrence is always a reassurance.
But.
Even if the cards had fallen differently, and I was saying something in support of (say) Pannick and against (say) Wolfson and Elliott, it would not ultimately matter.
Because it is the content of a legal opinion that matters the most.
Just as if a “distinguished” computer programmer churns out code that does not add up, it is the same for lawyers and legal opinions.
Being distinguished – or experienced or well-regarded – is a factor, as such lawyers and commentators may be accorded more respect.
But respect is not necessarily deference, and it is certainly not subjugation.
And a wise lawyer or commentator knows this, and will take ready account of better and stronger views.
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Without knowing the instructions and other privileged material, little weight can be placed on any formal legal opinion; and even if there is full disclosure of such things, any opinion has little weight in a court or tribunal.
For such opinions are not pleadings or statements of case to be presented to a court, and nor are they statements of evidence or summaries of the arguments before a court.
They are documents addressed solely to the client, on the client’s terms, and can be disclosed to third parties only if it suits the client.
And, as an opinion, it is always open to those to whom it is disclosed to take their own view.
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So, in conclusion: this harsh (now deleted) put-down on Twitter is correct:
(Though the “highly arguably” is adverbly painful to read.)
But.
There is nothing wrong with being a blogger.
For even bloggers can look at kings.
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As DG observes, knowing the instructions to counsel is central to this. It might also be informative to know who issued them and who had the authority to spend £130k on this. Both details may be in the public domain, but I have not seen them mentioned anywhere and in my experience elsewhere, those two details can be very informative.
Surely it is even simpler than that?
It is not a matter of how distinguished he is. He is a lawyer paid to argue for his client. By definition and by intent he is partial: that is his job.
“well, he would say that, wouldn’t he?”
It does not mean he is wrong: but it does mean no-one should automatically assume he must be right because of his expertise or reputation. He is not an academic or an arbitrator trying to impartially assess things on their merits; he is a lawyer trying to persuade people in his clients interests.
With all this talk of opinions I’m reminded of the often quoted view of a fictional detective for San Francisco –
https://w0.dk/~chlor/clinteastwood/
Most don’t cost the public purse the best part of £130k, though.
I’ve no doubt that the Pannick opinion was primarily an exercise in PR .. but ..
I wonder if Johnson or his staff in No 10 understand the difference between a legal opinion as advice to a client and the same as PR. I wonder if many current politicians understand that the critical thing is to examine the practicalities or technicalities of a problem: their job, as they see it, is to make a proposed solution sound as if it can be (or has been) effective. They are salespeople.
Not entirely a criticism of the current crop of MPs. Most haven’t known any other sort of politics. In their own minds, many are probably doing their sales job conscientiously. If they become ministers, it will be for civil servants or consultants to come up with practical solutions and for them as ministers to choose which will sell best – then go out and sell it.
This is the point that Rory Stewart has been making for several years. How politics turned MPs into sales reps, I don’t know. Politics as PR has been with us, I’m sure, since the dawn of political time, but at least there was (perhaps) a time when politicians understood the difference.
So I suspect the distinction you’re making here between a legal opinion as an argument which is either objectively valid or not, independent of the status of the counsel, and on the other hand an opinion as part of a marketing strategy .. that distinction would be lost on MPs and ministers and their spads. Your argument here would (will) automatically be batted away as spin or as marketing itself.
Do you have any sense of how clients see this: how many clients themselves realise the distinction between objective argument and marketing rhetoric?
“highly arguably…”
>Shudder<
It’s almost as bad as the dreadful locution “I highly doubt that…”.
Meanwhile we now have a new Prime Minister who didn’t have the backing of a majority of MPs.
Are not QCs exempt from the cab rank rule?
No.
Thanks again Mr Green – continually helpful.
Given that the taxpayer is footing the bill, and that the opinion has been published, is there any reason why the instructions should not be published? The opinion appears to have been conceived for public consumption, and as you point out, our, or more importantly, your understanding of the opinion is necessarily limited by having only the answer and not the question.
Also is it evident that Lord Pannick thought of and sought to answer the type of objections you and others have raised in his opinion? Given that it was likely to provoke adverse comments, one might have thought Lord Pannick would seek to forestall those comments in the opinion, but I don’t get the sense that he has done so.
Has the scope of “instruction” for the cab rank rule ever been defined? Presumably a client could not under the cab rank rule insist on a barrister writing an Op Ed for a national newspaper or a Law Review article? Yet, as parliamentary procedure is outwith the purview of the judiciary, what is this opinion other than an Op Ed in numbered paragraphs?
I suggest you look up Rule 29 and 30 in the Conduct Rules of the Bar Standards Board. See https://www.barstandardsboard.org.uk/the-bsb-handbook.html
The “cab rank rule” does not mean that a barrister is required to do anything that anyone asks of them, as long as their fee is paid.
To summarise, under Rule 29, a self-employed barrister in private practice is required to accept instructions from a professional client, if the instructions are “appropriate” taking into account the barrister’s experience, seniority and/or field of practice, unless another rule says they must not act or may not act. The latter includes for example under Rule 21.2 where there is or may be a conflict of interest, or Rule 21.8 “you are not competent to handle the particular matter or otherwise do not have enough experience to handle the matter”, or Rule 30.2 “accepting the instructions would require you … to do something other than in the course of their ordinary working time … ” or Rule 30.8 “you have not been offered a proper fee…”
Down in the definitions, “instructions” means “instructions or directions in whatever form … given to a practising barrister … entity to supply legal services whether in a contentious or in a non-contentious matter …”
Query if the sorts of things you have suggested – journalism, or writing articles – should properly be considered as “legal services” and whether they would be “appropriate” for most barristers to provide. Are they legal advocacy by other means?
Thanks. I’d missed the definition of instruction, although I’d seen the rest. Have there been any BSB rulings on what does or doesn’t constitute ‘legal services’ in this definition?
I agree that an Op Ed piece probably isn’t legal services, but I’m not entirely comfortable that an opinion delivered for the sole purpose of PR should be considered legal services or appropriate as an instruction.