Category: Legal practice

One-quarter of the Supreme Court are now Davids – so does the Supreme Court need a different appointment system?

19th August 2022

Because of recent retirements, there was recently just one David left on the Supreme Court of the United Kingdom.

There had been a David on the Supreme Court almost continuously since its creation – David Hope, David Neuberger, and now David Kitchin.

But the forced retirement of David Lloyd Jones meant there was the risk of there one day being none at all.

And then came the great news this week that David Lloyd Jones had been able to be reappointed, and – just to be safe – David Richards was also appointed to the Supreme Court.

That means a full one-quarter of the Supreme Court are now Davids – and this has been achieved without resorting to any quota.

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More seriously.

Some say there is something unsatisfactory about the appointments this week.

Both the judges who were appointed have outstanding judicial reputations – and it may well be that they were the best lawyers available for the job.

And there have been moves to open up who sits on the Supreme Court since it was founded in 2009 – with appointments from Academia and bodies such as the Law Commission, and also directly from the Bar, to circumvent the usual route from the High Court and Court of Appeal.

Yet some will find it hard to believe that merit means a quarter of the Supreme Court should be Cambridge graduates with the first name David.

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But.

What – if anything – should be done?

It is one thing to say there is a problem, and it is another one to solve it.

Some people favour quotas – and they make the point that the historic near-uniformity of appointments was (and is) itself a quota system, but in reverse.

Others dislike quotas and positive discrimination on principle, or doubt the efficacy of quotas and positive discrimination in practice.

But before quotas and positive discrimination are even considered, it would perhaps be better for the current system to be opened up as much as possible, to see what happens.

Dinah Rose QC – who would have been a good appointment as a Supreme Court justice directly from the Bar – said the following on Twitter this morning:

And she posted a remarkable excerpt from Lord (David) Hope’s published diaries:

That really is an extraordinary passage, and it does not become any less extraordinary with re-readings.

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Rose is a persuasive advocate, but before nodding-along with and clapping her well-made points, I wanted to see what the Supreme Court itself said in response.

So I asked them.

Although the Supreme Court (sensibly) does not comment on tweets, in response to my questions a spokesperson said:

“There is a clear and transparent selection procedure which has been set out by Parliament and followed by the selection commission. Judges are in the minority on the selection commission and the lay members are independent, highly skilled, and experienced people. 

“All those appointed to the Court are selected on merit and are people of truly exceptional intellectual and legal ability, with sound judgment and decisiveness and significant legal experience.

“Applications are sought from a wide range of candidates, including those who are not currently full-time judges, and those who will increase the diversity of the Court. 

“Both positions were publicly advertised, as you can see on the ‘Judicial Vacancies’ page of our website, here: https://www.supremecourt.uk/news/judicial-vacancies.html and was also publicised across our social media channels.

“The news story that was published on our website on 11th February 2022 to launch the applications also states that there were two vacancies for these positions: https://www.supremecourt.uk/news/supreme-court-launches-selection-process-for-new-justices.html

“At the bottom of that page, you can read who was on the selection commission for this competition and more about how the commission is convened. For your ease of reference, here are the names:

Lord Reed of Allermuir (Chair) President of the UK Supreme Court
Mrs. Elizabeth Burnley CBE Member of the Judicial Appointments Board for Scotland
Mr. Paul Douglas Member of the Northern Ireland Judicial Appointments Commission
Lord Kakkar Chair of the Judicial Appointments Commission
Sir Geoffrey Vos Master of the Rolls and Head of Civil Justice

“Membership of the commission for any vacancy on the Supreme Court bench is set out in statute, i.e. it is stipulated by Parliament.  As you will see, the commission for the vacancies for Justices of the Supreme Court is chaired by the President of the Supreme Court. Another senior UK judge (not a Supreme Court Justice), and representatives from each of the three independent judicial appointments board/commissions across the UK, form the rest of the panel. By law, at least two of these must be a non-lawyer. 

“You may read more about the selection process on our website: https://www.supremecourt.uk/about/appointments-of-justices.html

“The selection process is rigorous, fair and independent. It follows good recruitment practice and the new justices have been selected under provisions set out in the Constitutional Reform Act 2005. As part of the recruitment exercise, the commission actively encouraged applicants from all backgrounds.

“As outlined above, the Supreme Court does not make the appointments. However, the Court recognises that it has a role to play in increasing the diversity of the judiciary and has a Judicial Diversity and Inclusion Strategy addressing this serious issue with practical measures that will contribute to change.  

“To give you some background: the strategy does not address the appointments process which is governed by statute.  Instead, it looks at the role the Court can play in actively supporting diversity and inclusion in order to create and support initiatives that contribute to creating a more diverse, appointable pool of candidates for judicial office.

“We recognise that diversity brings richness to the judiciary and that more needs to be done to ensure that the judiciary is representative of the society which it serves.”

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So the positions were advertised, and the selection commission would seem to be a model of diversity.

There are things in what the spokesperson said there which are good to see.

And a read of the relevant detailed and dedicated page shows how the Supreme Court went about the selection process.

There is a question to be asked about whether the current President of the Supreme Court – or any other current sitting justice of the court – should be part of the selection commission.

And the process could be more transparent – with, as Rose avers – published shortlists and criteria.

So the Supreme Court has got something to say for itself, and there is evidence that it is trying to be more diverse in its appointments.

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But.

In the end, despite the above process, two more Davids were appointed.

Does this mean that the Supreme Court should do more?

Can it – or those who control the process – do anymore?

Or is this a wider problem in the legal system which needs a wider solution?

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Lawyers advise, clients decide – the crucial distinction

3rd August 2022

Perhaps the most boring but memorable title of a political biography was that of Norman Fowler:

That title came in turn from a comment of Margaret Thatcher when Prime Minister, in a dispute regarding the errant Downing Street adviser of the day: “advisers advise but ministers decide.”

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One feature of legal commentary is having to explain the distinction between a client and a legal adviser again, and again.

This is especially so when politicians and the media attack lawyers.

But.

Some lawyers do not help themselves.

Some lawyers so closely identify themselves with their client so that that any client/adviser distinction is indistinguishable to a lay person.

But the distinction is always there – or should be.

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This is true when looking at the dynamics of high-profile litigation like the “Wagatha Christie” case.

And it is true of government lawyers who, it is reported, are being asked to re-frame their legal advice (which I may blog about soon, as a former government lawyer).

Of course, there are circumstances where the lawyer is their own client – notwithstanding the adage about foolishness.

But generally one way of understanding what is really going on in any legal story in the news is to work out the client/adviser distinction.

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Some clients will be so reliant on their lawyers that it will seem that in reality – as opposed to theory – it is the lawyer actually making the decisions and driving things forward (or backward, or indeed off the track completely).

But again, even if this is the situation, the distinction is still there, and the lawyer remains the servant of their client.

That a client is (over-)confident that their lawyer is acting in their best interests does not remove the distinction.

And you may not be privy to the confidential and privileged advice the lawyer has given to their client.

The overwhelming obligation for any legal adviser is to get their legal advice right.

Getting advice right, so that it can be relied upon by clients, will often involve disclaimers and provisos.

These disclaimers and provisos may be seen as covering backsides – and sometimes they may well be.

But disclaimers and provisos are also signs of accurate and considered advice: [A] may lead to [B], but if [C] happens then [A] will not lead to [B].

Blunt, simple advice has its place – and it can show off a lawyer’s confidence and experience: “you will win at court” and “there can be no defence”.

But it can also show up over-confidence, and a lack of experience.

The important – crucial – thing with legal advice, blunt or elaborate, is for the advice to be correct and thereby reliable.

And as long as that is in place, the lawyer has done their primary job.

It is then for the client to decide.

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Sometimes ministers will not like this advice – and may wish to blame the lawyer rather than the law.

Sometimes claimants will not like their advice – and seek to go to court despite advice to settle a case.

And sometimes lawyers will get their advice wrong – or, more commonly, have been too cautious in their assessments of risk.

But if, say, a lawyer says there is 60:40 chance of winning a civil claim, they have not got their advice wrong if a client then loses.

You are a just one of the 40% and not the 60%.

As long as the lawyer has reasoning for that as their best assessment, they have done their job.

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There are some lawyers who do want to be decision-makers – either in effect or in reality.

But most lawyers are lawyers for a reason and that is because they want to be advisers and not decision-makers.

There are also decision-makers who do not want to make decisions – who want to hide behind advisers or blame lawyers.

But they are still decision-makers.

Lawyers advise.

How about that for a book title?

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“Attrition” – a guest post by Joanna Hardy-Susskind

22nd July 2022

The guest post below by Joanna Hardy-Susskind is a remarkable piece of writing, and it may be one of the best ever UK legal blogposts.

It was published yesterday on the Secret Barrister blog and it is republished here, with the kind permission of both Joanna and SB, so that it can gain the widest possible audience.

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Attrition

In 1999, Baz Luhrmann topped the UK charts with Everybody’s Free (To Wear Sunscreen).

We used to play that song on the drive to school. I was 12. My mum drove a banger that we called Bessie. “Come on Bessie” we would cheer as she chugged up the hill. Sometimes Bessie let us down, but no one minded. She did her best. Bessie’s radio had a cassette player. I liked to watch it hungrily eat tapes and spit out a glorious pop sound. My mum played the Sunscreen song on repeat. I remember those days. I remember that song. And, recently, I remembered the words:

“Live in New York City once”, the song advised, “but leave, before it makes you hard”.

School was the local comprehensive. Students were the beneficiaries of textbooks-between- two, dicey Ofsted inspections and our very own Police Liaison Officer. We did our best with what we had. And, by pure chance, it transpired we had something better than wealth: we had luck.

I had the good fortune to be born to hardworking, tremendous parents. They taught me right from wrong and the grey areas in-between. They taught me that precisely nothing in this life was given for free. And that, for some, working twice as hard is required to even make the starting line.

I was determined. And I was lucky. I read. Ferociously. I liked the words. As an adult I sometimes pronounce words incorrectly because I have only read them in books. I occasionally do it in court. Judges look at me quizzically, my expensively educated opponents tilt their heads and I confuse them all by just beaming. “Here I am”, I think silently, “with people like you”.

I remember going with my dad to buy our first family PC. It was magnificent. I typed out the words I had read. I moved them around the page until they flowed. Until they sounded just so. I did not recognise it then, but I know it now – it was advocacy. I memorised syllabuses and mock exam questions and photosynthesis and Pi and Oxbow lakes and the Somme. An A Level was not something my school offered. So I navigated Sixth Form, UCAS, bursary and then scholarship applications. I moved word after word around page after page and I persuaded people. That I knew things. That I could pass exams. That I might have some promise.

I failed often. And, each time, I returned home to my parents and their relentless cheer. “You did your best,” my mum would say. After my Oxford interview, a rejection letter landed on the doormat. I read it and muttered “two of the other candidates went to the same school, the SAME SCHOOL.”

Sometimes, I still mutter it to myself.

But luck, like rage, has a habit of holding out. I got into Law school. Words fell into place there. Sentences and paragraphs and persuasion. I was good at it. But it took everything I had. Loans. Sacrifice. Scholarships. A brutal commute when the money ran out. “It will all be worth it one day love”, my dad would offer on our bleary-eyed 6am car journey to the station. He would drive in his slippers. I would eat cereal in the passenger seat.

To become a barrister then, you had to eat 12 dinners “in hall”. It was a heady mix of Harry Potter and a weird wedding banquet. I did not know any barristers – so I took my mum. We rode cheap off-peak trains, googled which forks to use and giggled in the Ladies’ loo after drinking Port.

In my final interview to become a barrister – with 2 vacancies for 300 candidates – I wore a second-hand suit from eBay. No one noticed. My words tumbled out persuasively. More so, it transpired, than the same old boys from the same old schools. When I got the job, I opened the box containing my barristers’ wig in our lounge. We all stared at it like it was a wild animal.

Off I went. Defending people. People who had less luck, less guidance, fewer words. Many of them hoped that the courts would be fairer to them than life had been.

The words did not prepare me for the fighting. For the people I had to fight for. The terrified 14 year old girl in custody who asked me for a tampon, the shamed 55 year old who had lost his job and stolen, the addicted 21 year old with the sobbing mother, the father concealing a wobbly lip for a son who had not done his best. “Keep a professional detachment” my elders would say and I would nod before going home to lie on my bathroom floor with a rock in my heart. On and on it went. The drivers, the employees, the teachers, the students, the children, the ordinary people who thought court was no place for them until it was. Human story after human story. Stories I recognised. The grey area between right and wrong expanded. And I fought. A first court appearance then paid £35. I would have done it for free if I had not been shouldering a five-figure student debt. The cases got more serious, the money got a little better, but the relentless conveyor belt never let me exhale. I measured my success in precious ‘Thank You’ cards I stored safely in a box.

When luck runs low, I read them.

The finances have never kept pace with the fight. With what is required of me. With what is required of the mass of legally-aided barristers who ultimately have to rely on successful partners, generous families or sheer luck to get by. But, money aside, it is the conditions that deliver the sucker punch. Without a HR department the job takes and takes. There is no yearly appraisal. No occupational health appointment. No intervention. No one to assess the toll. There is a high price to be paid for seeing photos of corpses, for hearing the stories of abused children and for sitting in a windowless cell looking evil in the eye. There are no limits as to how much or how often you can wreck your well-being, your family life, your boundaries. No limit to how many blows the system will strike to your softness. The holidays you will miss, the occasions you will skip, the people you will let down. The thing about words is that they sometimes fail you. When you emerge from a 70-hour week and notice the look in the eyes of the proud parents who propelled you here – but miss you now.

And then, slowly, but to the surprise of absolutely no one, my colleagues – my friends – began to leave. Now, everything runs late. “Counsel will have to burn the midnight oil,” the nice Judge chuckles to the nice jury before I go home to lie on my bathroom floor again. The cases keep coming. The backlog grows. I am increasingly numb to the cruelty of telling broken human beings that the worst thing that ever happened to them will not be resolved for years.

Trial dates creep into 2023. Then, 2024. I edit police interviews for free. I prepare pre- recorded cross-examinations for free. I write sentencing notes for free. I teach new barristers for free. I offer suicide-prevention advice for free. The government issue statements saying everything is fine and I read them over and over trying to work out how they did not realise that justice costs something. That this is all worth something. That some of us gave everything to be here.

And so, it was this week I was reminded of Bessie and the song and those words.

“Live in New York City once, but leave, before it makes you hard”.

Perhaps being a criminal barrister is like living in New York City. Do it once, sure. But maybe I should choose a time to leave. Before it makes me hard.

I find it too heart-breaking to look that decision squarely in the eye. But many have managed it. Perhaps they had no choice. Criminal Bar Association figures show an average decrease in real earnings of 28% since 2006. Our most junior barristers work for less than the minimum wage. We have lost a quarter of specialist barristers in 5 years. 300 walked away last year alone. We miss them. Their talent and company and humour. Their help in shouldering a backlog that now stretches to the horizon.

Though sometimes I feel it, I am not alone. This summer, my (learned) friends took brave and bold action. To make this profession a better, fairer place than when we arrived. For those who choose to remain. For those brave enough to leave. And for those of us, hopelessly in love with this job, who are yet to decide.

But, most importantly, we must make this vital, important job viable for anyone who is about to begin. Regardless of their starting line.

Joanna Hardy-Susskind is a criminal defence barrister.

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Of Partygate, questionnaires and police discretion – some footnotes to yesterday’s post

27th May 2022

The response to yesterday’s post – offering an explanation as to why the current Prime Minister only received one fixed penalty notice over ‘Partygate’ – was rather overwhelming.

The post was linked to by both the Guardian and Guido Fawkes – which must be rare – and commended by a former (proper) Lord Chancellor and a former Treasury Solicitor (the government’s most senior legal official) – and the post had over 12,000 hits.

The thing is that I do not know – could not know – if that explanation were true.

The current Prime Minister is entitled to legal advice and the protection of legal privilege – and, in a way, it is not a bad thing for a Prime Minister to have access to competent legal advice.

(The problem, of course, is that ready access to competent legal advice when facing criminal sanctions is something which everyone should be entitled – and that entitlement is under constant threat by government cuts to Legal Aid.)

The only merit of my explanation was that it explained the facts as we understand them better than any other explanation, without resorting to a conspiracy theory.

In an interesting thread today, the journalist Peter Walker has set out some useful background which also supports my suggested explanation.

https://twitter.com/peterwalker99/status/1530131395133284352

https://twitter.com/peterwalker99/status/1530132726048858112

The decision to issue a notice is not a judicial decision – no judge or court is involved.

The decision is made by a police officer, who must reasonably believe that an offence was committed.

The safeguard against people having sanctions based on just police discretion is that an individual can refuse to pay the penalty and, as the dreadful phrase goes, have their day in court.

Payment of a penalty also does not, by itself, constitute an admission to a criminal offence such that would, like accepting a caution, give you a criminal record.

If the police officer does not reasonably believe that an offence was committed then no notice will be – or should be – issued.

The suggested explanation I set out yesterday may not be compel a court or convince a jury or a judge – but that was not the test.

The suggested explanation had to be enough for a police officer not to reasonably believe that an offence had been committed.

And which police officer would gainsay that a senior minister had to perform an, ahem, ‘essential function’ of leadership of thanking staff and making them feel appreciated?

It was not much of an excuse, but it was enough for the job that it needed to do, and it looks like it did it.

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But stepping back, there is a certain strangeness – if not idiocy – in investigating possible wrongdoing by questionnaire.

Especially if – as it seems – the questionnaires were not issued under caution (though I have not seen a copy of the actual questionnaires in question).

As any good regulatory lawyer would tell you – a regulator is only as good as the information to which it has access.

And so – as techies would say – Garbage In, Garbage Out (or GIGO).

The current Private Eye states that certain senior figures did not even return their questionnaires – or may have not completed all the answers.

From their perspective, that was prudent – even if maddeningly frustrating for the police and for those who wanted those who wanted the partying Downing Street staff and advisers to face sanctions.

One fears that senior figures – with access to competent legal advice – were advised not to complete or return the questionnaires, while more junior figures – not aware of their options and perhaps even trying to be helpful – basically wrote out their own fixed penalty notices.

If this is the case – and few will know for certain – then what was being actually sanctioned was not wrongdoing, but naivety.

And, if so, that would be one of many things which make ‘Partygate’ an unsatisfactory moment in our constitutional and political history.

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Lastly, on questionnaires. here are the wise words of one of the greatest jurists never to be appointed as a judge, E. L. Wisty:

“… they’re not very rigorous. They only ask one question. They say ‘Who are you?’, and I got seventy-five percent for that.”

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The importance of access to good legal advice: how Johnson had only one penalty while junior Downing Street staff had many

23rd May 2022

Some of the best lawyers in the country work for those who often state publicly their disdain for lawyers.

Some of the best media lawyers work for the tabloid press who insult lawyers on front pages and blame them for many social and political ills.

And some of the best regulatory and procedural lawyers help populist politicians and pundits get out of all sorts of scrapes.

None of this is surprising – being part of the tabloid media or being a populist politician or pundit is a high-risk activity.

Such figures will regularly face civil and/or criminal liability in what they want to say or do, but thanks to their good lawyers they are kept safe.

The irony is, of course, that the stock lines-to-take of such figures include ridicule and hostility towards the lawyers who help others.

Those lawyers are ‘activists’ and invariably ‘left-wing’ – some are even ‘human rights’ lawyers.

In other words: the populists dislike lawyers that keep other sorts of people from legal harm, while taking the benefit of lawyers who keep populists safe.

From time-to-time you can see this discrepancy in practical examples.

During the phone-hacking cases, certain publishers took the benefit of outstanding legal advice, while sometimes letting individual reporters and their sources fend for themselves.

And last week we saw the same with the Downing Street parties and the now-closed Metropolitan police investigation.

It would appear that senior Downing Street figures escaped penalties while junior staff incurred them.

And it seems to be the situation that this discrepancy may be because senior figures had the the benefit of deft legal advice in how to complete (and not complete) the questionnaires, while more junior staff provided answers that had  not had the benefit of such advice.

This sort of ‘getting off on a technicality’ would – if it were about migrants or other marginalised group, or loud protesters – be met by emphatic criticism from populist politicians and the tabloid press.

But as it is the leaders of a populist government, then there is hardly a word.

There is nothing wrong with such senior figures having access to competent legal advice.

The issue is not that some have access to good lawyers, but that not everyone does.

Everybody facing criminal liability should have access to the legal advice of the standard that assisted Boris Johnson in ‘Partygate’.

And when you next see denouncements of ‘activist’ lawyers, remind yourself that those denouncements often come from those with ready access to the best quality legal advice, when those that need help from ‘activist’ lawyers often do not.

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When both lawyers and the law are to blame

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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Public interest litigation against public bodies

16th February 2022

There are two ways by which those with public power will act lawfully.

The first is self-restraint: that ministers and officials will act lawfully because, in essence, they want to do so.

The second is by enforcement: that ministers and officials who act unlawfully are open to challenge in the courts and can also face action from the police or other regulatory bodies.

So: if not the first, then the second.

But hopefully the first, which is better for everyone, apart from public law litigators.

The problem is what happens when ministers and officials do not care for self-restraint?

Then we have to go to the second stage, all too quickly.

But then there are new problems.

Who decides, for example, which cases to litigate?

How are those challenges to be financed?

And what if there is nobody in a position to litigate a case?

What is there – ultimately – to stop lawless behaviour by those with public power?

These questions are important – and they are not easy to answer.

One solution is to have non-governmental organisations litigate these cases, in the public interest.

But this brings new problems.

Pressure groups can have their own agendas – and some see litigation as an aid to fundraising and campaigning, rather than a thing in itself.

(When I was legal adviser to a pressure group party to a case that went all the way to the supreme court, I was careful to ensure that there was not a whiff of any ulterior motive and that the focus – correctly – was on the litigation.)

Too many pressure groups litigating elides the distinctions between politics and law.

And some may be tempted to blame the pressure groups.

But.

That is to partly see the problem the wrong way round.

The primary reason why so many non-governmental organisations are litigating is because of problems with those with public power.

The pressure groups in court are (at least) as much a consequence of poor quality policy-making and rule-making by ministers and officials.

In essence: better quality policy and rule-making will mean fewer subsequent legal challenges by pesky pressure groups.

But that would mean ministers and officials facing up to their own failings.

And it so much more easy to blame the pressure groups instead.

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A day in court

21st January 2022

Today – with my lawyer’s head on – I spent the day in an actual court at an actual hearing, my first since at least 2019.

And the dynamic was absolutely different to online hearings, so much that it felt like going back in time with Bill and Ted or the Doctor.

Not just different in quality, but different in the very nature of the advocacy and the the interaction with the judge.

I happen to be a great fan of things being done virtually whenever possible, from parish council meetings to parliamentary committees.

I am disdainful of ceremony and ritual, and of the theatre of politics and the law.

I do not like politics and law to be cosplay exercises that are better suited to historical enactment societies and fan conventions.

I would place wigs and gowns into the museums in which they belong.

If judges really want to be called ‘lord’ and ‘lady’ and be ‘knights’ and ‘dames’ there should join a mock medieval weekend club.

But.

Strip away all of the daft paraphernalia, there are still the intellectual and forensic exercises that do not need stage props to make then interesting, even compelling.

And such exercises in the same room are radically different to lots of muted faces on a zoom call.

I was not expecting this.

I thought virtual hearings had superseded the need for actual hearings.

But I was wrong.

Some things cannot be replaced by a virtual substitute.

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Do we really want lawyer-politicians?

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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What ‘pro bono’ means, what ‘pro bono’ does not mean, and what ‘pro bono’ will not solve

29th September 2021

One of the joys of being a lawyer is that you will often be asked to do stuff for free.

The request may be from a friend or relative, or from friends of friends, or from acquaintances, or from people who only know that you are a lawyer.

Often these requests will be framed as asking you to do it ‘pro bono’ – which many seem to think is a synonym for ‘for free’.

And they will ask you to do stuff for free when they would never dream of asking, say, a plumber for something for nothing.

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The phrase ‘pro bono’ comes from the Latin phrase ‘pro bono publico’ – which means not for free but for the public good.

And so when a lawyer – or anyone else – does a thing pro bono publico they would (or should) be doing it for the benefit of the public.

So when a person asks you to work ‘pro bono’ for the benefit of, say, their commercial company or for the value of their house, it may be that they want you to work for free when they could pay you as well as they would pay a plumber, but it is not easy to square that private benefit with ‘pro bono publico’.

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What is, of course, ‘pro bono publico’ is the provision of legal services to those who cannot otherwise afford them.

That is because there is a public good in those who would not have access to legal advice being properly advised in dealing with the law – especially in potentially life-changing situations involving the criminal law, immigration, housing or employment.

But this is because such people getting this legal assistance is the public good – not that it is being given for free.

And so a properly resourced system of legal aid is also for the good of the public: ‘pro bono publico’.

Many lawyers choose to do work (sometimes a lot of work) for free – and those who do so are quiet saviours who often make real differences to people facing life-changing situations.

But it is not a sustainable way to provide legal services to the most vulnerable in society.

And any sensible reform of legal services should not rely on lawyers providing professional services for free, and especially not outside their areas of expertise and experience.

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Yesterday the Labour politician and justice spokesperson David Lammy said the following in a conference speech:

‘City law firms are making billions in profit while low-paid workers see their tax bill rise and wages fall.

‘Labour recognises the importance of the private sector working in partnership with the public sector.

‘That’s why today we are announcing that a Labour government would support the introduction of a new national pro bono service.

‘With binding pro bono targets to support those who can’t afford legal advice and are ineligible for legal aid.’

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Although like others, I have a lot of time for Lammy, I do not think this proposal is a sound one.

The city firms making these billions in profit should either be taxed more or pay a compulsory legal services levy so as to ensure that there are paying towards a properly resourced legal advice service.

And instead of having (no doubt well-meaning) City solicitors giving (say) social security law advice (or on anything else outside their usual practice areas) there could be experienced practitioners able to give speedy practical advice to those in need.

(I spent years as a trainee and junior City solicitor helping at free legal advice centres, and with the best will no City lawyer can match an experienced lawyer specialising in the relevant areas of law.)

This policy proposal is misconceived.

City law firms – and also commercial and corporate barristers – can and should be helping support areas of legal practice where there is less funding available.

But getting those lawyers to advise on things for free about which they have no particular knowledge or experience is not the best way of helping those who need help.

There should be instead legal advice centres in every community with the resources in place for lawyers who actually know what they are advising on to help those who are unable to get legal advice elsewhere.

That would not be for free – for they would need government funding – but it would be for the public good.

That is: ‘pro bono publico’.

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Each post takes time, effort, and opportunity cost.

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This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.