Category: United Kingdom Law and Policy

How the Good Friday Agreement means the United Kingdom government cannot leave the ECHR (without breaching the Good Friday Agreement)

12 August 2022

From time to time the demand will come from a government minister, or from one of their political and media supporters, for the United Kingdom to leave the European Convention of Human Rights.

This short blogpost sets out the most obvious difficulty for the government in doing this.

The difficulty – if that is the correct word – is the Good Friday Agreement.

This thirty-six page document – which is not as read as widely as it should be – contains a number of express provisions in respect of the ECHR:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.”

“There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including:  […] (b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission […]”

“The Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas, subject to: (a) the ECHR […]”

And so on.

The ECHR is not just mentioned in passing in a recital.

The ECHR is integral to the Good Friday Agreement – and that rights under the ECHR can be relied upon in Northern Ireland is a fundamental part of the agreement.

This means that if the United Kingdom (including Northern Ireland) leaves the ECHR there will be breaches of the Good Friday Agreement.

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When this is pointed out, sometimes the response is “Aha! Why not just have the ECHR applicable in Northern Ireland?”

Of course, there is nothing in the Good Friday Agreement which expressly requires rights under the ECHR to be directly enforceable elsewhere in the United Kingdom.

But.

Article 1 of the ECHR provides:

It would thereby not be open to the United Kingdom to be a party to the ECHR and pick-and-choose who within its jurisdiction can have the benefit of the rights.

This is in addition to the political issues about having a further legal “border down the Irish Sea”, which presumably would not be welcome to unionists.

And so, one can either have the United Kingdom outside of the ECHR or one can have the Good Friday Agreement, but it is difficult to see how you could have both.

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There are other ways to deal with the problems (as perceived) with decisions of the European Court of Human Rights.

In 2012 – during the Conservative-led coalition – there was the “Brighton Declaration”.

And the Supreme Court is already unafraid of showing its independence, as it did in 2013 – and which was welcomed by Conservative ministers:

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As this blog previously averred, there is also a distinction to be made between human rights law as a legal reality and “Human Rights Law!” as an event of political rhetoric.

Last October, the Lord Chancellor made a speech to the Conservative party conference where (tellingly) the only example he gave of a wayward human rights court decision was where the law had already been changed.

As such “Human Rights Law!” is often a turnip-ghost, which has been created by politicians and the media just to scare themselves and others.

For every actual problem with the ECHR there is a practical way of addressing that problem that does not require the United Kingdom’s departure from the ECHR.

And often, stripped of political and media gloss, the apparent problems are not there.

As with the Brighton Declaration, and as with the Supreme Court, problematic features of the ECHR and its application by the Strasbourg court can be dealt with in other ways.

Ways that do not also involve breaching the Good Friday Agreement.

That is what politicians should do.

And that – one hopes though no longer expects – will be what politicians will end up doing.

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Birmingham

10th August 2022

The Commonwealth Games of 2022 have just ended.

I am not huge fan of athletics, but it was wonderful to see my home city of Birmingham being given the opportunity to show off.

A taste can be seen of the closing ceremony here:

There may be other cities in England that have more famous musical legacies – but Black Sabbath, the Electric Light Orchestra, Joan Armatrading, the City of Birmingham Symphony Orchestra, UB40, Duran Duran, Dexys Midnight Runners, and so on, ain’t bad.

We produced Ozzy Osbourne and Jeff Lynne, Paranoid and Mr Blue Sky.

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One thing about being a Brummie is that you learn very quickly that you and your city will get disparaged, and so you get your self-disparagement in first and quickly.

You meet people who want to say “Birmingham” in an accent which sounds Liverpudlian, or Welsh, or mildly deranged.

You hear the criticism of New Street Station – but you never let on that it is that ugly so that people are not tempted to get off the train and ruin it for the rest of us.

You learn that you can’t take things about your city too seriously for too long.

As Telly Savalas avers:

What makes that video especially wonderful is that Savalas did not visit Birmingham – indeed he may not have even seen the footage.

He did a voiceover gig from afar.

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There is not even that much of a fixed identity.

For example, because I was born before the 1973 county re-organisation, I used to say I was born in Birmingham, Warwickshire.

But pesky details meant I was wrong: I was born in Birmingham, Worcestershire – as Selly Oak was then the other side of a county line.

There were parts of Birmingham which were Staffordshire.

It didn’t matter, the industrial and residential city just sprawled out in all directions, regardless of lines on maps.

And people came to Birmingham from elsewhere in the British Isles and from abroad.

All ended up Brummies.

In terms of religion, it was varied – strong Anglicanism vs Freethinkers (for example with the Priestley riots), Cardinal Newman and the strong Irish contingent, and then religions from around the world.

All together.

And economically and commercially, there was not just one trade and business dominating – but all sorts, from the Jewellery Quarter to the Bournville chocolate factory and the Longbridge car plant.

All mixed.

Birmingham did not even formally become a city until 1889, when it was already one the largest urban areas in the then-empire.

And then without really realising it, Birmingham somehow became the second city of the United Kingdom.

This irks those from Manchester and other pretenders – which is pleasing, as it is plain how much this status would mean to them – but most Brummies are a little bewildered by it, to the extent they think about it at all.

A Birmingham football team even were once champions of Europe, which is also bewildering even for those of us who support it.

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From a law and policy perspective, coming from a big city that is not London is a useful corrective to a lot of the London-centric approach of the English government and British media.

Coming from a city that has grown and thrived on its own terms is a reminder that regions and localities have actual and potential power.

Birmingham did not become the second city because some people in London decided to generously “level up” a midlands town.

Birmingham – like many other cities – was just allowed to get on with it.

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Of course: there is a less pleasant side.

Birmingham grew on the back of slavery and colonialism – and, indeed, the city’s gunmakers and chain-makers were the main suppliers of slavers and imperialists.

One day there may perhaps be a Bristol-like reckoning of this, or perhaps not.

The city is also the home of those remarkable political creeds “liberal imperialism” and “liberal unionism” – which meant elevated rights for those fortunate enough to be on this island, and no rights if you were under this island’s power.

Now forgotten, those political ideas put Birmingham – and the house of Chamberlain in particular – at the heart of British politics for sixty years from c. 1880 to 1940.

And you can perhaps trace back British exceptionalism to the “liberal imperialism” and “liberal unionism” of Joseph Chamberlain and his supporters.

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So coming from Birmingham – like coming from any other non-London place – can give you a detached view of the law and politics, and the history, of the United Kingdom.

You may have a similar story and a similar view.

And the more it is realised that there is more to the United Kingdom than Westminster and Whitehall and the Square Mile, the better.

If the rest of the country is given its head – with independent access to resources and powers – then levelling-up may happen, and not at the behest of London.

And, who knows, another city could overtake us to become the second city.

We would have still have given the world heavy metal though.

And won the European Cup.

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The significance of Rishi Sunak’s Brexit Delivery Unit

8th August 2022

Here is a tweet and video to treasure:

But other than adding to the gaiety of the nation – or to its collective despair – this video and the proposal of a “Brexit Delivery Unit” are significant.

They signify a great deal about Brexit, and about what has not been done or understood by those in the governing party.

The United Kingdom joined what became the European Union in 1973 and it departed the European Union in 2020.

That is over 45 years of accumulated law and policy.

Brexit was never going to be “done” quickly – it may never be done at all, if Brexit is taken to mean that all that law and policy is to be disentangled and reconsidered.

And a great deal of that accumulated law and policy was shaped by the United Kingdom because it suited the United Kingdom.

Going through each regulation or other legal instrument derived from our membership of the European Union, and assessing whether divergence is both possible and beneficial, will take an extraordinary amount of time and effort.

And during a cost-of-living and energy price crisis, with increasing inflation and during a European war, you would think that the finite resources of the British state would have greater priorities than such a review.

There was also, of course, an actual government department dedicated to managing the exit and its implications:

The department was abolished because Brexit had been “done”.

One gets the sense that those in favour of Brexit did not realise the legal and policy magnitude of the task ahead, just as they did not appreciate the economic and logistics consequences of departure.

That was all mere detail, it would seem.

For Brexit was not actually done to solve any law or policy problem or to address any economic or logistics concern.

To the extent there was a primary reason for Brexit it was to regain sovereignty – to “take back control”.

Well.

This is sovereignty, for what it is worth – there are over 45 years of accumulated law and policy from our membership of the European Union.

Two years after we have departed the European Union, the leading politicians in our governing party still do not know what to do with all that law and policy.

And so we have a leadership contender in 2022 announcing there will be a “delivery unit” for Brexit.

Which is an implicit admission that Brexit has not yet been done.

Indeed, Brexit has hardly begun.

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Is this an abuse of the law of contempt of court?

5th August 2022

I came across a case on BAILLI which I read with increasing concern, indeed dismay.

I had somehow missed the relevant litigation being reported in the news, and so I did not know anything of the case, so I came to the case report fresh.

And I could not believe what I was reading.

I am sharing it with followers of this blog now, for I am thinking about writing about the case in detail.

The case is about contempt of court – and, in particular, what a court can be asked to do by a party with an injunction against those who (supposedly) breach that injunction.

The courts of England and Wales take contempt of court seriously – very seriously – especially in respect of parties breaching the orders of the court.

Indeed, it often seems that courts take contempt of court more seriously in respect of parties breaching the orders of the court than the court will do if a party breaches a legal obligation to any other party.

But this case seems to show how contempt of court this can be abused by the injuncting party

The impression I gained on reading this case was that the injuncting party were, in effect, weaponising and misusing contempt of court for private, commercial advantage – to the effect one could discern any motivation behind what they were doing at all.

The application seemed either spiteful or irrational – for a bad reason or for no reason.

And certainly not for any good reason.

The judge was not having any of it, and these two paragraphs give a flavour of the judgment:

Before I devote the time and energy (and opportunity cost) to writing about the case, I should be grateful for the views of those following this blog.

Is this a case worth a close reading?

Is this an (attempted) abuse of power which should be be brought to a wider audience?

Or is this a storm in a lawyer’s tea cup?

Does the fact that a judge sorted it out in the end mean that nothing really untoward here happened which could not be cured?

I am currently considering writing a detailed step-by-step critique of what the injunction party sought to do here – as it seems to me to be, on the facts, vindictive and a gross misuse of the court.

I also think, in general, there must be a change so that injunctions against “persons unknown”, after this case, always require the leave of the court.

There is a Law Gazette news report here.

And Adam Wagner has done a Twitter thread here:

Let me know what you think.

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The significance of a 2014 case about stuffed toys – and why illiberal lawyer-politicians should not be underestimated

4 August 2022

Here is an amusing tax case from 2014, from eight years ago today.

You will see why I am mentioning it.

The case was about whether a toy was a stuffed toy or not.

In particular, as the tribunal put it, it was about “how two soft children’s toy animals that contained a soundbox that produced soothing sounds, intended to assist babies and children to sleep, should be classified for Customs purposes”.

If the toy was regarded as a stuffed toy its classification would have one tax consequence, and if it was not a stuffed toy it would have another consequence.

And so, eight years ago today, in Bedford Square in London, a two-person tribunal earnestly debated with two barristers about the nature of stuffed toys.

The judgment is a joy:

“The Appellant’s principal contention had been that when there was no definition of the word “stuffed”, one should look to the intended use of the product to decide whether it was stuffed. In that quest, the word “stuffed” should be taken to suggest a toy designed to be cuddled and played with by babies and children.”

Against this, the HMRC’s barrister contended:

“The products could hardly thus be said not to be stuffed, when as a pure physical matter of content they were stuffed and they plainly looked to be stuffed, and when, even on the Appellant’s test that “stuffed” meant that the toy was suitable to be cuddled, it was indeed asserted that it was a “cuddly companion and toy”.”

The tribunal considered the point carefully:

“While there is no definition of the word “stuffed” in the present context, its meaning is relatively obvious, and indeed in turning to consider the function of the product and then asserting that stuffed products can be identified because they will be soft to cuddle, the Appellant itself assumes the same obvious meaning of “stuffed” in reaching the conclusion that it must mean something along the lines that will make a toy cuddly. And what makes a toy cuddly is of course the insertion of stuffing…”

And so the tribunal concluded, with a straight face:

“this product is a cuddly toy, and that it is stuffed.”

All good fun – and it is one of those cases, like the Jaffa Cake case, which lighten up the reports of tax cases, and so add to the gaiety of the nation.

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But why is this case of interest on 4 August 2022, eight years later?

Because the victorious HMRC barrister in that case is now the Attorney General, Suella Braverman.

And the case is significant because it shows that Braverman’s bread-and-butter at the Bar was everyday public law cases.

It is often contended that Braverman is not qualified or sufficiently experienced to be an Attorney General.

But in fact she was a perfectly competent barrister specialising in public law cases and indeed was appointed to the Attorney General’s panel to conduct cases on behalf of the government.

According to Bailii, she also acted in planning cases, both successfully and unsuccessfully.

As far as can be ascertained, the Attorney General had a good, wide-ranging public law practice, including advising on human rights law.

This blog is not a fan of the Attorney General, but it is important to be fair and accurate in what can be criticised.

It is sometimes assumed – perhaps condescendingly – that the reason why some politician-lawyers are illiberal about the law is because they do not really understand the law.

But the thing about Braverman and also the Lord Chancellor Dominic Raab is that they do have experience in and knowledge of public law.

Some may say that makes their illiberalism worse – for they “should know better”.

I think that is the wrong approach.

I think one should credit the illiberals with knowing and understanding the relevant law – it is just that they do not care for it.

And this means that those of us who are liberal in their approach to the law need to make a more compelling case for it than assuming the conservatives do not “get it”.

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“As far as I am aware, no Government business was discussed” – A close reading of Boris Johnson’s letter about the Lebedev meeting

26th July 2022

There are perhaps two stages to a close reading of a legal, formal or otherwise considered or negotiated document.

The first stage – sometimes overlooked – is to read what the document actually says (and not what you think or hope it says).

The questions to ask here are: What is the content? How is that content framed and conveyed? What propositions are put forward? How are paragraphs and sentences structured? What words are used?

And so on.

In essence: if thought has gone into compiling a text, thought should also go into reading that text.

The second stage is more difficult.

Here the reader needs to work out not what is said, but what is not said.

Why did the writer not say certain things which they otherwise would have said?

What were the words and phrases and sentences which could have been used, but were not?

Of course: this second stage can be prone to speculation or projection or other forms of (over-)elaborate analysis.

But it can be a useful exercise when one has a document where the wording seems, well, strained or odd.

In short: why does the text say this – and not something else?

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Now we come to a letter that was placed today into the public domain.

The letter is from the current (and departing) Prime Minister Boris Johnson and it is on his official headed paper.

You can read the letter here.

The portion of the letter with which this blogpost is concerned is that under “Question 41“.

The background to this is as follows: on or about 28 April 2018, Boris Johnson, then Foreign Secretary, attended a social event in Italy where one of the other guests was Alexander Lebedev, a former KGB agent.

He was asked about this when he appeared at the recent liaison committee of the House of Commons on 6 July 2022:

There was a follow-up question:

This was not a comfortable moment for the Prime Minister – and it was at the time he was being forced to announce his upcoming departure as Prime Minister.

You will see from the exchanges above that Johnson said he would write to the committee – but in any case the chair of the committee wrote to the Prime Minister on 8 July 2022 expressly asking for – among other things – the Prime Minister to write on the matter of:

“Whether you met with Alexander Lebedev on 28 April 2018 without officials, and whether officials were subsequently informed of the meeting”

The question being asked was plain – and precise.

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In his letter dated 21 July 2022 (and published by the committee today) devotes over a page of a four-page letter to responding to this question:

 

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You will see the response to the question asked comprises twelve paragraphs.

And you will see that from the fifth paragraph onwards, the information provided is not the information requested.

Indeed, if you look at the final paragraph, the Prime Minister is providing information about who Labour politicians have met.

Only the first four paragraphs of the response relate to the request and should be read again:

You can read these paragraphs as well as anyone, and it is worth taking time to read what they say.

And what they do not say.

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For some reason, there is no mention of Alexander Lebedev by name – he is instead alluded to as “Evgeny Lebedev’s father”.

Johnson was asked both in the committee and in the chair’s subsequent letter whether officials were subsequently informed of the meeting.

Johnson’s letter places emphasis on a notification made about hospitality and that officials were “aware” in advance that he was attending.

You will see both the notification and the “aware” comment are about the social event generally – and not the meeting with Alexander Lebedev in particular.

Johnson cannot bring himself to say plainly that officials were not subsequently informed of the meeting with Alexander Lebedev.

The admission is instead buried in the following text:

In plain language: the Prime Minister did not subsequently notify officials of his meeting with Alexander Lebedev.

Johnson seeks to misdirect the reader with mentions of a notification about hospitality and officials being “aware” in advance of the social event generally, but the answer to the straight question is that he did not notify officials.

Indeed, there is no reason to believe from the content of this letter that officials were aware in advance that Alexander Lebedev would be in attendance.

Johnson further states the meeting with Alexander Lebedev was “not a formal meeting, nor something that was pre-arranged”.

This wording is odd.

That it was not “a formal meeting” is no more than a tautology that this was a social event – it is not a new point, but a dressing up of a point already made.

And that the meeting was not “pre-arranged” does not preclude the meeting as being expected.

Johnson does not say he was surprised to see Alexander Lebedev, which he could have said.

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The most remarkable phrase in the letter, however, is that “[a]s far as I am aware, no Government business was discussed”.

That formulation is strained in the extreme, as it would be within the Prime Minister’s knowledge what was discussed and what was not.

The “[a]s far as I am aware” proviso makes sense in a formal document when a person cannot have complete knowledge of a thing themselves.

But Johnson would presumably have complete knowledge of what he said.

Note also the Prime Minister does not simply say “[N]o Government business was discussed”.

If the Prime Minister could have said just that, he would have done so – and put the matter beyond any doubt.

But he did not say that, and that is presumably because he cannot say that.

He also does not use the more common “[a]s far as I can recollect” proviso.

The only reasonable explanation for the proviso “[a]s far as I am aware” in that statement is that the Prime Minister is aware of the possibility that government business was discussed, and so he does not want to be pinned down to a more committed answer that could mislead parliament.

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In summary, Boris Johnson did not notify officials that he had met Alexander Lebedev, and he cannot recall exactly what was discussed.

That is the only sensible interpretation and construction on the letter he has sent to the liaison committee, even though the letter goes out of its way not to mention Alexander Lebedev, and goes out of its way not to say expressly that officials were not subsequently notified, and goes out of its way to implicitly accept government business may have been discussed.

Instead of the twelve paragraphs of misdirection and waffle he could have said:

“I did not notify officials that I had met Alexander Lebedev, and I cannot recall exactly what was discussed.”

Instead, none of the information which the committee asked for directly is provided directly.

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There is something strange and worrying here.

If the meeting in Italy was straightforward and above board, then the response published today would also have been straightforward and open.

But the response was not – and that presumably is because the meeting was not.

Curious stuff.

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The 3Ps, politics and Anglocentrism – or what should they know of Johnsonism and Trumpism who only Johnson and Trump know?

25th July 2022

“And what should they know of England who only England know?” was a question once posed by an imperialist poet.

One of the problems of commentary is insularity: you comment about what is familiar, with nods to things which are – you think – recognisable.

And so it is with law and policy commentary, even when (like this blog) one strives not to be Anglocentric and seeks to pay as much attention to (say) Edinburgh and Dublin and Washington and Brussels as to London and Birmingham.

In particular, one thing commentators seem to do is emphasise endogenous explanations – for example, about what the example of Boris Johnson tells us about the historic weaknesses of the United Kingdom polity and constitution – with a sideways glance at the United States

But Johnson is also a local manifestation of something happening in many countries.

Johnson is not the only one.

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In a fascinating and insightful new book The Revenge of Power, Moisés Naím – a former Venezuela trade minister and editor-in-chief of Foreign Policy posits the 3Ps:

“3P autocrats are political leaders who reach power through a reasonably democratic election and then set out to dismantle the checks on executive power through populism, polarization, and post-truth.”

In his preface he mentions a list of applicable politicians – and although Johnson is discussed in the book, he does not even make this primary list:

“We have in mind here Donald Trump, of course, but also Venezuela’s Hugo Chávez, Hungary’s Viktor Orbán, the Philippines’ Rodrigo Duterte, India’s Narendra Modi, Brazil’s Jair Bolsonaro, Turkey’s Recep Tayyip Erdoğan, El Salvador’s Nayib Bukele, and many others.”

In turn, the 3Ps are defined and illustrated:

“Populism may be the most persistently discussed of the three Ps and the most often misunderstood. Because it ends with “-ism,” it is often mistaken for an ideology, a counterpart to socialism and liberalism in the competition for a coherent governing philosophy. It is no such thing. Instead, populism is best understood as a strategy for gaining and wielding power.”

“Polarization eliminates the possibility of a middle ground, pushing every single person and organization to take sides.”

“In their current approach to post-truth, leaders go far beyond fibbing and deny the existence of a verifiable independent reality. Post-truth is not chiefly about getting lies accepted as truths but about muddying the waters to the point where it is difficult to discern the difference between truth and falsehood in the first place.”

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Of course, elements of all three are not new.

And we can self-indulge in a parlour game of “well, actually, there is this antecedent”.

Yet, the combination is a current phenomenon, made more potent by technological and political changes, such as the decline of parties and of traditional news media.

And it seems to be something liberals and progressives – and even conservative constitutionalists – are finding difficult to combat, or even comprehend.

And even though the Boris Johnsons and the Donald Trumps may personally leave office one way or another, the frames of mind with which they are associated are likely to linger.

The problem may therefore ultimately not be about the peculiarities of uncodified British constitution or its codified American counterpart.

The 3Ps were (are) going to be a problem whatever our constitutional arrangements.

It is not the fault of us not having a codified constitution any more than it is the fault of the Americans having a codified constitution that privileges illiberal and low-population states.

The problem is not (ultimately) constitutional or legal, but political.

It is about our sense as a polity: about what is acceptable in our political leaders, about what we value as checks and balances, and about how we believe political decisions should be made.

And because it is a political problem then it needs a political solution.

No constitution-mongering, by itself, will offer an easy way out.

The cases for liberalism and progressivism – and indeed constitutionalist conservatism – all need to be made afresh and in new ways.

Even seeking to place fundamental rights beyond the reach of 3Ps politicians will not be enough, as these politicians and their political and media supporters will simply politicise and discredit and trash the rights instruments, rather than respect them.

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It was never going to be inevitable that the world would become more liberal and progressive, and enlightened and tolerant – despite the triumphalism of some liberals and progressives in the heady halcyon (ahem) days of Clinton, Blair, Obama and the EU constitutional treaty.

That said, it is also not inevitable that the 3Ps politicians will win – their triumphalism may, in turn, also be ill-based.

So it is still all to fight for.

But.

In this contest, we should not think these are just local problems for local people.

The 3Ps politicians are part of a worldwide trend, and so we need to be aware of what works and does not work elsewhere – and not just in the United Kingdom and the United States.

Where has the case for constitutionalism – codified or not – been made successfully?

Where have people been made to care that their politicians are lying?

Where have voters and politicians valued checks and balances that may go against their partisan and personal advantages?

For, to adapt the poet:

“And what should they know of Johnsonism and Trumpism who only Johnson and Trump know?”

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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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Some of this is normal, and some of this is not

21st July 2022

One job of a commentator is to separate out what is normal and what is not.

It is only by separating this out that you can reckon what is significant and what that signifies.

So over at Al Jazeera I have had a go at separating out what is (constitutionally) normal and what is not about the current political drama.

Please click and read here.

As you will see: that there is a change of Prime Minister between general elections is quite normal – and as this blog has noted many times, every single Prime Minister since 1974 has gained or lost office between general elections (or, for May and Johnson, both).

And it is also normal for the mid-term successor to be either a current or recent holder of one of the so-called ‘great offices of state’.

Since the Second World War, the incoming mid-term Prime Ministers have been: 1955 – Foreign Secretary; 1957 – Chancellor; 1963 – Foreign Secretary; 1976 – Foreign Secretary; 1990 – Chancellor; 2007 – Chancellor; 2016 – Home Secretary; 2019 – (very recent) Foreign Secretary.

So far, so normal.

A Prime Minister is going mid-term and will be replaced by either the Foreign Secretary or a (very recent) Chancellor.

Framed like this, the current political drama is normal, ordinary.

But it is not normal or ordinary, is it?

The current political situation is abnormal and extraordinary.

In the last few weeks we have had mass ministerial resignations and ministers openly attacking their government’s policy on television.

A Prime Minister who only in December 2019 won a mandate and a sizeable majority has been spat out because he was repugnant to the body politic.

And one measure of just how unusual the current political situation is just how close we came to the next Prime Minister not even being in the cabinet – or even a current or recent minister.

Such inexperience in an incoming Prime Minister can happen at general elections – neither Blair nor Cameron had been ministers before becoming Prime Minister – but it would be unusual midway during a parliamentary term.

Given the combustible politics of the current governing party – and the ongoing challenges posed by Brexit and other matters – one can only wonder what usual political events will happen before we get finally – and hopefully safely – to the next general election and – which our political system badly needs – a change in the governing party.

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The next Prime Minister

20th July 2022

We are about halfway through the maximum length of this parliamentary term.

The last general election was on 12 December 2019 and – according to this working out – the very last date for the next general election would be 24 January 2025.

Today’s leadership vote seems to mean that the Prime Minister for that second half of this parliamentary term will be Elizabeth Truss, as she is more popular with the party members who will now vote.

If so, Boris Johnson’s cosplay of Churchill will segue into the Thatcher copslay of his successor.

The governing party as a political history re-enactment society: the Westminster equivalent of the Sealed Knot.

Regardless of the current governing party being the Conservatives, and regardless of whether the victor is Truss or Sunak, it is unlikely that after twelve years of government any governing party will be emphatically re-elected.

“Time for a Change” is a powerful political force, as Douglas-Home found in 1964, Major in 1997, and Brown in 2010.

It is not fun to be a Prime Minister when your party has been continuously in office for a long time.

It is even harder, no doubt, when you cannot be a “fresh start” from what went before.

From a policy point of view, the key question for the new Prime Minister will be whether the post-2019 programme (or lack of programme) is continued.

And if new policies are adopted, what the mandate is for those policies.

Will we have yet another Queen’s Speech this autumn?

And in more direct terms, how can Truss (or Sunak) re-orientate policy on Brexit and the Northern Irish Protocol so that outstanding issues can be better addressed, if not resolved?

Can the incoming Prime Minister effect any change in government policy (to the extent there are policies)?

For, as the recently sacked minister Michael Gove has said, the government is “simply not functioning”.

And yet another minister today did not turn up to something:

In essence, is it possible that the governing party can become serious about governing again?

Or is it going to be a long wait until the next general election?

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.