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Access, development and diversification
The themes for this year’s Annual Bar and Young Bar Conference were access, development and diversification, reflecting the current opportunities and challenges faced by the profession, with keynote speeches delivered by the Attorney General, Geoffrey Cox QC MP, and Lord Sumption.
In a powerful speech, Andrew Walker QC, Chair of the Bar warned that cuts to legal aid funding present ‘a huge threat to access to justice in our country’. He said: ‘In the last two decades, we have been following a course that has set its face against justice, by political design, political folly and political expediency.’
According to research conducted by Professor Martin Chalkley, the cuts are not the inevitable consequence of austerity. In the past decade, the economy and government spending have grown by 13% in real terms and health spending has risen by 25% in real terms. However, spending on justice – prisons, courts, judges, prosecutors and legal aid – has been cut by 27% in real terms; and yet it amounts to just 1% of total spending by the taxpayer.
Andrew Walker said that our justice system is ‘our most precious inheritance’. He concluded: ‘But our politicians and the public have a choice to make. They must make it wisely. If they take all this for granted, then I fear that we will all pay the price’.
Geoffrey Cox QC continued the theme: ‘I know that there are parts of our profession that are under great strain and in particular those at the criminal Bar. I have read the Secret Barrister.’ He emphasised that he will continue to ensure that ‘your voice is heard at the heart of government’.
The Attorney General said that the current Lord Chancellor understands the Bar’s concerns. He considered that there had been ‘material progress’ but he warned that the impact of legal aid cuts cannot be reversed quickly.
Lord Sumption, who will shortly retire from the Supreme Court, said that legal aid cuts had ‘fundamentally changed the nature of practice in every area where the clients are too poor to do without it’. He drew a distinction between government spending on criminal legal aid, which he described as ‘fundamental’ and should be funded by government ‘whatever the cost’, and ‘much (not all) of civil legal aid’, which he labelled as ‘discretionary’ and will have to compete with other calls on public funds.
He said that the Bar’s response to the challenges of legal aid cuts ‘has not always been wise’ and that ‘we cannot return to the open-handed approach to legal aid that prevailed in the 1970s’. He suggested that barristers cannot adopt the same campaigning methods as nurses and teachers as, regrettably, they have never enjoyed the same kind of public support, adding that: ‘Public demonstrations with banner in hand and wig on head look absolutely ridiculous and are completely counter-productive.’
His view was that the focus must be on ‘the only real weapons’ – that is refusing to take on instructions for inadequate pay, and working on government ministers, who ‘however resistant, are at least likely to have a better understanding of the problem than most of the wider public’.
Lord Sumption reflected on the changes to the profession since he began in 1975, before concluding that ‘the Bar is still where the magic is’.
Georgina Blower, Farringdon Chambers and Counsel Editorial Board
Next year marks 100 years since women were first permitted to enter the legal profession and the Bar Human Rights Committee celebrated with a seminar on equality and women’s rights led by an eminent panel of lawyers and human rights defenders. Chaired by Kirsty Brimelow QC, they tackled wide-ranging topics such as the Me Too movement, female imprisonment and the diversity of the judiciary.
The perennially impressive Baroness Helena Kennedy QC discussed two of her published works, Eve was Framed and Eve was Shamed, which focus on how the law constantly and inevitably fails women. She cited research that 83% of female inmates are imprisoned for very low-level, non-violent offending and that over 64% have mental health problems. She asserted that judges have suffered from ‘a failure of understanding’ regarding equality. It is not about simply giving women the same sentence as men, irrespective of their child care responsibilities, for instance. She said that ‘to do justice you have to look beyond the court room doors’ and recognise that women are not living equal lives to men. Women can be deeply disadvantaged and victimised – and whilst this may be true of some men – it is intrinsically different because of the inequality of our society.
Baroness Kennedy further stated that ‘violence against women is so much part of the tragedy of human rights abuse around the world’. She said that women are seen as property, whether they are sexually exploited in refugee camps or used as a vehicle for punishment of the enemy during conflict.
Myths and stereotypes permeate society’s treatment of women and their experience of justice. Victim-blaming is commonplace. Zubaida Mahmoud, an associate from Olaniwun Ajayi LP, cited the widely reported rape trial in Ireland where defence counsel commented on the complainant’s choice of underwear in their closing speech. She called for a ‘move away from focusing on what the victim has or has not done’.
Susi Bascon, Director of Peace Brigades International, discussed the essential work of human rights defenders. She shared the powerful story of Valentina Rosendo Cantú from Mexico who was raped by eight soldiers in 2002 when she was 17 and had to overcome enormous obstacles before two of her attackers were finally brought to justice earlier this year. She said that, whilst lawyers play an important role, it often comes down to the courage and strength of individuals to seek justice. She said: ‘These women, despite the risks, despite the pressures, they are committed to upholding the rule of law.’ She importantly reminded us that we all have a role to play in championing human rights.
The panel discussed the lack of diversity of the judiciary, which Baroness Kennedy considered was a result of embedded subconscious bias in decision-making. Zubaida Mahmoud discussed the advancement of women in the legal profession in Nigeria, explaining the difficulties faced by married women when seeking judicial appointment outside of their state of origin.
In discussing the Me Too movement, Baroness Kennedy suggested ‘young women are saying they have had enough’. She said that the movement has been something about ‘women’s anger about law’s failure’. She said that men must call out unacceptable behaviour and be available to women when they have a complaint. However, she acknowledged that there will be men who will be accused unjustly and we must have fair processes for dealing with allegations, otherwise she said ‘there will be a serious backlash against women and it will not work to our advantage in creating an equal society’.
Georgina Blower, Farringdon Chambers and Counsel Editorial Board
This was an excellent seminar; outstanding speakers and very well chaired by Sam Roake of Red Lion Chambers. Good practical advice from varied fraud careers, even though David Perry QC, tongue in cheek, suggested that they should never listen to advice, but make up their own minds. Claire Cross, Called 18 years ago, now a partner in Corker Binning, had considerable experience in the Inland Revenue, the Financial Conduct Authority and elsewhere, before going into private practice. That flexibility allowed her to outline varied routes to pursue a fraud practice and was a great boost to confidence. You must get out to events so that people in your area know who you are. Take every opportunity to speak. Don’t be afraid. Remember, you are good enough to do this. Work out what matters to you and do it. Master the skills of written advocacy.
Alison Pople QC of Cloth Fair Chambers, a real expert in financial and corporate crime, was asked to consider civil and criminal fraud practice. So much fraud is multi-faceted and thus, by inference, your knowledge must cover wider areas. Market yourself by building up your experience. Fraud crosses boundaries, international and otherwise. So, for example, your skill set may and should extend naturally to disciplinary regulatory work. But if it is not within your expertise, don’t do it! This was clear, valuable and very balanced advocacy.
David Perry QC of 6KBW, now Treasury Counsel and with enormous experience at the highest and most diverse levels (Blue Arrow and Polly Peck onwards), was excellent, with delightful stories. How do you get noticed? No one gets noticed on their own. So the best advice is get a mentor. Again, iconoclastically, you should never have a plan! Do every case as if it is the most important in your life. (Inwardly, your reviewer cheered at that point.) He favoured a positive approach to the unexpected call on your services. Don’t get pigeon-holed, for specialisation is bogus and don’t underestimate the effect of chance in your life. It was all enormously persuasive, wise, funny and encouraging.
Nick Vamos, partner in Peters & Peters, who has held very high responsibility posts in different branches of the CPS, painted a convincing picture of life in private practice. Often the question is not who did it, but was it a crime at all? Variety is wide; fraud work can go from election law, disciplinary proceedings and corruption to cases with an international element. If you have good judgment and problem-solving skills, then you have the abilities to succeed. A question allowed advice to female advocates seeking fraud work, again stressing the value in finding a mentor to act as a sounding board. Networking is key. This seminar succeeded because it did not patronise and plainly would have built young advocate confidence. Top-class.
Nigel Pascoe QC, Pump Court Chambers and Counsel Editorial Board
CSR: a business case or a social imperative? Well, for those concerned at the rise of the ‘handwringing liberals’ (of which I confess to being one), I am pleased to report that CSR (chambers’ social responsibility) is both.
Amanda Tipples QC opened the session by introducing Lakhraj Minhas of Heart of the City, a project established by Westminster City Council to support businesses developing responsible business activities. Lakhraj talked about what CSR means in decision making, looking at it from three perspectives: community, workforce and environment. She examined what we can do for the community – pro bono advice and representation, charitable work, and work in schools; for our workforces – E&D (or D&I), wellbeing, work conditions and pay; and for the environment – recycling, carbon footprints and ‘green’ suppliers.
Addressing the business case, she said that there are increasing calls for greater transparency on CSR commitments, from government, consumers, clients and employees. Clients and procurement officers have long required greater transparency and place work according to CSR commitments; a fact required of, and well understood, by law firms, but from which trend the Bar has largely been immune.
Things are starting to change. Gary Blaker QC, of Selborne Chambers and the Bar Council Pro Bono Committee and Alec McCluskey, of Maitland Chambers, described in detail their chambers’ programmes. One set has partnered with a school in Camden. It pays the cost of a coach to take children to a park. It organises and pays for annual trips. A delegation from chambers attends the school play. Children from the school are invited into chambers to see where and how barristers work.
The takeaway from the session was that a chambers is not expected, and cannot expect, to start with a complete suite of CSR policies. Start small. Select an initiative and discuss it with a few like-minded people. Then promote and develop that initiative. When it is under way, approach the management committee to seek its approval and, hopefully, its adoption as a chambers initiative. As such initiatives are adopted they will grow and multiply, and eventually they will become a part of chambers culture. Little acorns and all that! And most people will have at least one acorn!
Michael Todd QC, Erskine Chambers and Chair of the Counsel Editorial Board
The morning session co-hosted by the Bar Council ADR Panel and the FLBA promised a comparison of the civil and family models of ‘ADR’ (for which read ‘mediation’). We were guided through a worked example, devised by a member of the high-quality panel, Rhys Taylor, to illustrate the randomness of a process which could lead to the same set of issues being viewed as a family dispute with civil overtones or a civil dispute with family overtones and mediated in contrasting ways. Taylor had come equipped with a smiley pinger (yes, there is such a thing) to impose a strict time limit on his fellow panellists, family mediators, Anthony Kirk QC and Karin Walker, and civil mediators, Spenser Hilliard and Colin Manning. Karin had the distinction of being so pithy that, by the end of the session, she, alone of the panel, remained unpinged.
For the purposes of the exercise, the unmarried Gavin and Stacy, whose, five-year relationship had resulted in a daughter, Nessa, a house with a net worth of £1.1m, a clutch of unresolved equitable issues and a common assault conviction for Gavin, wanted to resolve their differences by mediation.
Under the civil mediation model, they might have expected one session over the course of a single day – a very, very long day from the experience of the civil mediators – whereas with family mediators, they might have had three or more sessions of no more than three hours each. The different mediation techniques seemed to have most in common at the start of the process and to diverge thereafter. Family mediators tended to see and to expect less direct involvement of lawyers and also to expect, subject to any issues of safeguarding, more to be done in joint sessions. ‘Shuttle diplomacy’, although not unknown in the family model, was rather more prevalent among civil mediators.
There were common elements too, however: the panel was unanimous in expecting lawyers involved in mediation to be well-prepared and not to be too adversarial. While stressing the need for documentation to be focused, all seemed to expect more in the way of advance information than has been my experience as a (civil) mediation advocate.
The session was interactive as promised and there were some lively interactions between panel and audience, particularly when the fine line between mediating and advising was discussed. Inevitably in just an hour there were questions that didn’t get asked and with a panel that united behind Anthony’s view that mediation ‘goes nowhere without the fullest disclosure’, the question I came away wishing I’d asked was whether they saw any place for early mediation where a settlement produces the greatest benefit in terms of saved costs?
Rawdon Crozier, KBG Chambers and Counsel Editorial Board
Richard Hoyle, Chair of the Young Barristers’ Committee, was the pick of the keynote speakers in the morning plenary session, giving what Baroness Chakrabati, Shadow Attorney General acknowledged was ‘too good a speech to follow’.
It was probably too good a speech by which to be followed as well, although David Gauke, the Lord Chancellor and first solicitor to hold the post, had said many of the right things, acknowledging that the Bar was a calling and recognising the under-funding of criminal Bar and, in particular, the junior criminal Bar (see full speech here). Whether the additional £23m of funding he announced (strictly and to be scrupulous about it – as he was – £8m on top of an already announced £15m) will be sufficient to reverse the slow strangulation of the publicly funded criminal Bar which has gone under governments of all political colours since I was Called, is something outside the remit of this article but it is not an irrelevant bit of personalisation because it was the theme of Shami Chakrabarti’s address, which closed the session.
The best of her address was very good and had she cut about a quarter of it, she might have threatened to repeat Sir Henry Brooke’s achievement of receiving an ovation. She was in full flow when talking about the ‘next Labour government’ but this party political broadcast, along with Gauke’s earlier blandly reassuring works on Brexit, tried the audience’s patience; for many in the room, Brexit and Jeremy Corbyn are the Scylla and Charybdis of this country’s present political course. She must be commended, however, for her passionate defence of the judiciary and so much else.
Richard Hoyle’s address was flawless, no misplaced rhetorical flourishes, no discomfort. He started by drawing attention to fact that the words ‘Justice for all’ are at the centre of the Bar Council logo, before delivering the admonition that they are a statement of aspiration, not reality, and that the gap between aspiration and reality has been growing. As he developed this theme, he not only outshone the Lord Chancellor and the Shadow Attorney but delivered an implicit rebuke to Lord Sumption, who had suggested earlier in the day that the Bar should give up its fight for the restoration of civil legal aid, pointing out that ‘small scale studies indicate that for every pound spent on legal aid, more than a pound is saved elsewhere…’
Hoyle built to this conclusion: ‘there is not simply a Conservative case for justice or a Labour case for justice. There is not simply an economic case for justice or a social case for justice. There is not simply a constitutional case for justice. There is a single compelling case for justice of which these are all but individual threads. It is a case which every single person in this room, every single person at the Bar, every single person on the Roll, and every single person in society at large needs to understand, and needs to be making…’ Amen.
Rawdon Crozier, KBG Chambers and Counsel Editorial Board
The Brexit workshop could not have been more timely. The Bar Conference was the same weekend as the EU summit. Inevitably, we speculated on the upcoming debate and vote in the House of Commons over the ‘deal’. We were therefore asked what parliamentary outcome we preferred. It may be simpler to note that the vast majority in the room were Remainers.
Rhodri Thompson QC set the scene. The ‘deal’ is only partly a deal. It does consist of a very large agreement which is intended to be a binding treaty, but in addition a very short declaration which is not binding. Even if everything is approved, we will not be moving into a transition period next March because there is nothing to transition into. The status quo will prevail while we negotiate the free trade agreement the government has failed so far to deliver. Free trade is about goods, not legal services, which will be left out. One member state cannot veto the ‘deal’ but they can veto a free trade agreement, so the bargaining and trade-offs there are yet to come.
With respect to our distinguished visitors, there was no real discussion about the so-called Irish backstop. It was made clear though that Northern Irish farmers and businessmen, while clinging to the Union, need access to both markets in order to attract foreign investment. More immediately important to practitioners was the fact that there is nothing on civil cooperation although at the Plenary Session the Justice Secretary promised that the government would negotiate something.
Currently, barristers are able to deliver their services throughout the EU thanks to the single market and a relevant Directive. That won’t happen in the future. There will not be a visa requirement for temporary work in the EU (Hugh Mercer QC described it as ‘Hong Kong minus minus’) which includes English-language courts like the Frankfurt Chamber High Court. After March 2019 the Irish will be the only English-speaking common law barristers with full access. For those who have thought of qualifying in Dublin, there are only a few months left in which to do so. Member states will have ‘regulatory autonomy’ as to whether or not to allow English barristers to deliver services. The British input into EU rules and regulations regarding legal matters will cease, as will, as Hugh explained, our central position for being able to take a judgment throughout the EU. Citizens’ rights will become residents’ rights.
There was a sense throughout of doors closing. There were good explanations of what could happen next but no one demonstrated enthusiasm for it.
The Bar Council has produced significant work in this area: see here.
David Wurtzel, Bencher of Middle Temple and Counsel Editorial Board
The passion, drive and energy of Susan Acland-Hood can hardly be doubted following her spirited defence of the HMCTS reform programme in response to questions from Derek Sweeting QC. Many would have been cowed by the sheer scale, aims and challenges of what may be described as highly ambitious and, at times, controversial proposals for court reform; but not Ms Acland-Hood.
The enormity of the task appears to be what gets her out of bed in the morning; before becoming HMCTS Chief Executive in 2016, Ms Acland-Hood had previously been the Director of Enterprise and Growth at HM Treasury – responsible for policies on productivity, growth, business, infrastructure, exports, competition and markets, and for energy and transport spending.
The report of the Public Accounts Committee (PAC) published on 20 July 2018 branded the £1.2bn modernisation programme as ‘hugely ambitious’. The reforms involve the digitisation of paper-based services, moving some types of cases online, introducing virtual hearings, closing courts and centralising customer services. The PAC reported that ‘the performance of HMCTS to date shows that it has much to learn if it intends to do everything it plans’.
The Chair of the PAC, Meg Hillier MP, felt constrained to say: ‘Government has cut corners in its rush to push through these reforms. The timetable was unrealistic, consultation has been inadequate and, even now, HMCTS has not clearly explained what the changes will mean in practice.’
Ms Acland-Hood refused to accept the PAC’s criticisms, saying instead that she accepted its recommendations. Her response to the suggestion that HMCTS had failed adequately to take account of the effect of the proposed reforms on access to justice, was that changes had to be made even if all possible outcomes could not be foreseen; otherwise there would be no change.
As part of these reforms, the HMCTS and MoJ announced that the Court Service was to pilot, in civil and family courts, more flexible hours (see News p 7). Flexible hours are not being piloted in criminal courts. This pilot, Ms Acland-Hood said, was not about people working longer hours, but about ‘shifting hours’ so that there would be three court sessions each day.
She dismissed concerns that clerks would be tempted to send their junior barristers to court for the whole day, encompassing the three court sessions. As to the suggestion that flexible hours working would discriminate against those with caring responsibilities, and as 85% of carers are women, it is they who would be most affected, Ms Acland-Hood’s response was that it depends what all the data says, and that a balance would have to be struck between those with different interests, for example litigants in person.
We can only hope that any evaluation of the court reforms is as rigorous as Ms Acland-Hood’s defence of them.
Michael Todd QC, Erskine Chambers and Chair of Counsel Editorial Board
The Employed Barristers Committee (EBC) session’s three speakers all had different experiences of practice. Jenny Agnew, Chair of the EBC, was with the Army Legal Service before joining a national sports organisation. Penny Hamilton had moved from chambers to central government, to PwC before re-joining a specialist tax set and retiring. Sara George started out in chambers doing criminal work, moved to the FCA before moving to a law firm and is currently a partner at Stephenson Harwood. Each shared their professional background and how their career moves had come about.
A number of questions were posed on the Bar Conference app before the session:
Audience participation and dialogue amongst attendees meant that some of the interesting issues arose from outside the confines of the questions asked. The issue of court-based work being compatible with personal obligations between 10am-4pm, whether barristers can sue others (yes, the Code deals with restrictions), and the ability of employed barristers to do pro-bono work were all canvassed. For pro-bono work, in part thanks to Daria Gleyze, Employed Pro Bono Barrister of the Year 2018 winner, Bar Mutual now offers employed barristers insurance; for those interested in pursuing pro-bono work, please contact: jcampbell@weareadvocate.org.uk.
Melissa Coutinho, Government Legal Department and Counsel Editorial Board
Talk about unsung heroes. On the day that the Lord Chancellor announced limited improvements for criminal practitioners, all speakers at this seminar brought home to your reviewer the huge amount of detailed work being done on our behalf to strive for decent fees across the board. Space does not permit the detail, but the profession should realise just what a huge debt we owe to the Remuneration Committee. I was incredibly impressed by the clarity, dedication and optimism of four top practitioners, battling against the odds on our behalf.
Just a few glimpses. First, Neil Hawes QC, totally on top of criminal fees, and welcoming cautiously the latest news that day from the Lord Chancellor: a very welcome beginning. Later he spoke of a very positive step in the right direction and that discussions have not yet stopped. He reported that the Ministry of Justice does now understand some of the practical work we must do and importantly, the pressures on the young bar. Further the Attorney is a friend at the heart of Government. So, some cause for optimism, Stick it out. Later, passionate, clearly articulated views from veteran advocate and former MP, Jerry Birmingham, pleading to get it right in the future for the young advocate. Then pungent comment and question from Andrew Taylor, conveying all the anger and frustration of the criminal Bar: ‘They gave four hundred million for potholes.’ Neil Hawes, calm, frank and surefooted, repeated the case for continued cooperation.
The three other senior contributors provided the details of fee updates and battles in a variety of civil and other proceedings: joint Chair, Nick Bacon QC and joint Vice-Chairs, Mike Horne QC and Martyn McLeish. The included a review of continuing remuneration arising from personal injury and clinical negligence cases. Then spin-off issues, such as the increase in litigants in person. A reference to the Innocence Tax, highlighted as it has been by The Secret Barrister and totally indefensible in a fair judicial process. There will be further reforms arising from the Jackson Reforms. Public access problems and how can I enforce the payment of my fees? And much more. Together, I felt that the speakers demonstrated advocacy at its best: resolute, good humoured and transparently clear. They all left your reviewer with a sense of respect and awe. This was the Bar at its best and we all should be proud of them.
Nigel Pascoe QC, Pump Court Chambers and Counsel Editorial Board
The title of the Young Bar’s opening keynote was ‘Taking the Road Less Travelled’. Leslie Thomas QC used his speech to challenge young barristers to do more for others. He reminded delegates that they had chosen a profession in which the ‘main goal is to serve’. He asked his listeners to consider their legacy and to invest in the future of others. He encouraged those in the audience to speak to young people in under-performing schools and to use their abilities to help others. The speech was a clear call to action, as delegates were reminded of the importance of nurturing diversity, not as something to be tolerated, but to be embraced.
Chaired by Athena Markides (Vice-Chair, Young Barristers Committee), the panel included Andrew Walker QC (Chair, Bar of England and Wales), Richard Hoyle (Chair, Young Barristers Committee) and Frances Judd QC (Chair, Family Law Bar Association), as well as keynote speaker Leslie Thomas QC (Joint Head of Chambers, Garden Court Chambers).
The audience asked wide-ranging questions focusing on the future of the Bar. Richard Hoyle identified the main challenges currently facing young barristers as fees and wellbeing. He emphasised that a key issue to be addressed in relation to wellbeing is the expectations on working hours. Andrew Walker QC reminded the audience of the Bar Council’s work on magistrates’ court fees and the steps taken to work with chambers in order to assist junior barristers, particularly working pupils. Those who are interested in this topic can consult the ‘Young Barristers’ Fees in the Magistrates’ Court’ article within the Young Bar Hub.
A lively discussion on flexible working primarily focused on the increasingly common trend of barristers working away from their chambers. The panel actively encouraged young barristers to maintain links with clerks and with other barristers by going to chambers and through the use of technology. Younger members of the Bar were encouraged to find a mentor and to form internal junior members committees within their chambers, to ensure that their voices are heard.
Tackling discrimination was a key focus in the discussions about the future of the Bar. Andrew Walker QC outlined the approach taken by lawyers in New Zealand, who created a protocol to confront discrimination in the legal profession, as an example of a proactive effort to counter this serious issue.
The overarching message from the keynote and forum was clear: junior barristers should use their platform to help others, and they must be supported in order to thrive (see ‘What Can I Do?’). The gauntlet was laid down before junior members of the profession: take the road less travelled, and it will make all the difference.
Joanne Kane, Carmelite Chambers and Young Barristers’ Committee
This is my third year covering COMBAR sessions at the Bar Conference and it seems unfair to carp about how much they invariably try to fit in to a single session.
This year, in association with the Bar Council’s International Committee, it was billed as international dispute resolution and effective advocacy before international commercial courts. We are in the midst of a proliferation in international commercial courts, it seems, and if one is going to be taken on a tour of them at breakneck speed, a handout would have been useful, particularly when many of those referred to have very similar acronyms or are Chinese.
As it was, it was only during my post-conference read-through of my notes (and the resulting, necessary, post-conference research) that I discovered that I had rendered the Chinese ‘Belt & Road’ Initiative as ‘Biltong Road’ and the two Chinese Commercial Courts to be set up under it as ‘Z/X?’ (Xi’an) and ‘Sh???’ (Shenzhen).
They were a bit of a diversion in any event, given that they are to be under the auspices of the Chinese Peoples’ Court and not to be constituted with international judges, both of which are reckoned to be bars to their being fora of choice for any party with the leverage to insist on some other jurisdiction. Historically, the Chinese have promoted the use of arbitration because they are distrustful of the courts of local jurisdictions. Elsewhere a generally common law approach, the use of international judges and the widespread use of the English language, means that, if one can get a foot through the door, the possibilities for advocates whose skills have been honed in this jurisdiction are considerable.
Experience of the cut and thrust of cross-examination is something which advocates in the courts of England and Wales offer to a degree unmatched by those in other jurisdictions but there has to be an awareness of local customs and the expectations of international clients. This was the message from an impressive panel, moderated by Amanda Pinto QC, Chair of the Bar Council International Committee, and consisting of Sir Jeremy Cooke, now an International Justice of Dubai International Financial Centre Court and Singapore International Commercial Court, Michael Patchett-Joyce, Vice-Chair of the International Committee and Steven Thompson QC, also Vice-Chair and, among other things, Chair of the Bar’s China Interest Group.
Brexit inevitably cropped up, many of our European neighbours seeing possibilities of setting up their own international commercial courts as a result of the UK’s decision to leave the EU. The plans for a court in Paris seem most advanced. London has had an international commercial court since 1895 and from a low point in the late 1950s, when in one year just 14 cases were heard, there are now 700 to 800 cases heard annually. This is a prize upon which several European jurisdictions now have their sights set.
Rawdon Crozier, KBG Chambers and Counsel Editorial Board
This useful workshop began with a series of questions. The main one was in the title. As delegates worked their way through various scenarios, it became clear that there was rarely a single right answer. At the end of each discussion, Esther Gamble summed up what good practice should be.
Faisel Sadiq outlined the scale of the problem. Barristers’ Working Lives 2017 found that 40% of women at the Bar had seen or experienced harassment, but only 20% of them reported it, and of those who did, half were unhappy with the response. Someone asked, ‘Reported to whom?’ There is no data on this or indeed why they were dissatisfied. We know that it wasn’t to the Bar Standards Board (BSB) who had only received two such complaints in the past five years. BSB policy is that the victim is obliged to report harassment but there is no action against them if they do not. Faisel said: ‘We advise to start it in chambers.’
Dee Masters described a ‘typical’ victim of harassment: female, young, single, financially precarious and at the weaker end of the power dynamic. Statistically, for a barrister it is a BAME woman doing crime.
The scenarios and outcomes: (i) An older, gay, male barrister invites a male pupil to his flat to discuss his tenancy prospects. Clearly unacceptable on various grounds not least of which is the need for transparency in chambers’ decisions. (ii) A solicitor persistently invites you for a drink but you feel uncomfortable and keep declining. Clearly unacceptable. Esther recommended that one needs someone to talk to about it who can in turn talk to the solicitor. (iii) A judge says in open court of a woman advocate, ‘you lower the age in this court by a decade and may I say you increase the average attractiveness too.’ Clearly unacceptable. There were various opinions about how to deal with it.
One could speak to the young woman in question (though her view is not the deciding factor since this happened in a public court). One delegate said she would not say anything though she had in the past forthrightly told a judge to stop bullying her. Faisel had had experience with a remark with a racial element. He decided not to say anything in deference to the potential impact on his client’s prospects.
There was a discussion of ‘benevolent sexism’ (commenting on women’s appearance diminishes their credibility and disarms them before negotiations).
Delegates were told where to go for help: chambers’ E&D officer, a trusted colleague or head of chambers, a Circuit Woman’s Forum, or ring the Bar Council helpline on 0207 611 1426. Continuing with a 80% non-reporting rate will clearly not ‘stop it’.
David Wurtzel, Bencher of Middle Temple and Counsel Editorial Board
The concluding session featured two judges who began their careers as solicitors. This, their interviewer suggested, showed a changing of attitudes; a session featuring two solicitors would not have concluded an annual Bar Conference 20 years ago. While this may be the case, audience members challenged the use of the word ‘fusion’ on the basis that each branch of the profession had a different role and skill set. This premise both judges supported, albeit their very different personalities providing different perspectives and insights.
LJ Hickinbottom spoke of some judicial functions not requiring a presence in court at all. There were a variety of possibilities, and people should do their homework. HHJ Molyneux agreed, and shared her own experience of hiring a barrister to coach her in criminal law, assiduously doing six weeks of homework before applying to be a Recorder. Both considered that being determined and well prepared were key. HHJ Molyneux said her own route was such that she was a statistical anomaly. Nonetheless, learning the relevant law and becoming familiar with the surroundings was important because becoming a judge is a different role from practising as a lawyer.
Ames quizzed them on technological advances, skills and tips for succeeding in judicial aspirations, before handing over to the audience, who asked about the EU model of career judges who never practise as lawyers, and the impact of increasing litigants in person. HHJ Molyneux proved herself an entertaining speaker, sharing her opinion that her strengths as a solicitor who did not practise criminal law came from a) knowing nobody, and b) knowing nothing! Having no preconceptions of the barristers who appeared before her, and listening carefully to what they said, enabled her to check for herself whether their arguments really stood up to scrutiny. She did not notice or care if those before her were solicitors or barristers, as long as what they said, they said well!
LJ Hickinbottom admitted that the Court of Appeal was behind crown courts in taking advantage of technology, but the savings in resources meant that these could provide additional efficiency, without a level of secrecy. Justice, it was said, would still be open. His top tip was to enjoy the pursuit of a judicial career, learning about the different roles, and the skills they require. HHJ Molyneux’s top tip was ‘less is more’ and being ruthless about identifying the point that is going to win an argument. LJ Hickinbottom did not think a career judiciary would occur in the UK anytime soon, given the lack of infrastructure of a judicial college that could teach the relevant skills to recent law graduates. HHJ Molyneux pointed out that there is no short cut to life experience, which can help in making difficult decisions.
Asked about ‘threats’, both discounted what was said in person, or on social media when emotions were running high. They recognised that the British public at large respect and acknowledge the rule of law. They concluded by thanking the barristers who appeared before them, for conducting themselves in a professional manner, displaying brilliant advocacy, working in a spirit of collegiality with their opponents and being committed to the cause of justice.
Melissa Coutinho, Government Legal Department and Counsel Editorial Board
Georgina is a criminal barrister at Farringdon Chambers and a member of the Counsel Editorial Board.
Nigel is a former leader of the Western Circuit, practises crime from Pump Court Chambers, and is a Master of Drama in the Inner Temple. He is on the editorial board of Counsel.
Rawdon Crozier is a barrister at KBG Chambers, Plymouth, specialising in property law. He is a member of the Counsel editorial board, writes for several legal journals and also writes poetry. In 2015 he went straight from Arnold v Britton [2015] UKSC 36 in the Supreme Court to starting chemotherapy and ‘got the right result in the latter’.
David practised at the criminal Bar for 27 years and is a door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.
Melissa Coutinho is a lawyer for the Government Legal Service An accredited arbitrator, qualified PPM practitioner and a magistrate, she also writes and lectures on medical products and their regulation.
The themes for this year’s Annual Bar and Young Bar Conference were access, development and diversification, reflecting the current opportunities and challenges faced by the profession, with keynote speeches delivered by the Attorney General, Geoffrey Cox QC MP, and Lord Sumption.
In a powerful speech, Andrew Walker QC, Chair of the Bar warned that cuts to legal aid funding present ‘a huge threat to access to justice in our country’. He said: ‘In the last two decades, we have been following a course that has set its face against justice, by political design, political folly and political expediency.’
According to research conducted by Professor Martin Chalkley, the cuts are not the inevitable consequence of austerity. In the past decade, the economy and government spending have grown by 13% in real terms and health spending has risen by 25% in real terms. However, spending on justice – prisons, courts, judges, prosecutors and legal aid – has been cut by 27% in real terms; and yet it amounts to just 1% of total spending by the taxpayer.
Andrew Walker said that our justice system is ‘our most precious inheritance’. He concluded: ‘But our politicians and the public have a choice to make. They must make it wisely. If they take all this for granted, then I fear that we will all pay the price’.
Geoffrey Cox QC continued the theme: ‘I know that there are parts of our profession that are under great strain and in particular those at the criminal Bar. I have read the Secret Barrister.’ He emphasised that he will continue to ensure that ‘your voice is heard at the heart of government’.
The Attorney General said that the current Lord Chancellor understands the Bar’s concerns. He considered that there had been ‘material progress’ but he warned that the impact of legal aid cuts cannot be reversed quickly.
Lord Sumption, who will shortly retire from the Supreme Court, said that legal aid cuts had ‘fundamentally changed the nature of practice in every area where the clients are too poor to do without it’. He drew a distinction between government spending on criminal legal aid, which he described as ‘fundamental’ and should be funded by government ‘whatever the cost’, and ‘much (not all) of civil legal aid’, which he labelled as ‘discretionary’ and will have to compete with other calls on public funds.
He said that the Bar’s response to the challenges of legal aid cuts ‘has not always been wise’ and that ‘we cannot return to the open-handed approach to legal aid that prevailed in the 1970s’. He suggested that barristers cannot adopt the same campaigning methods as nurses and teachers as, regrettably, they have never enjoyed the same kind of public support, adding that: ‘Public demonstrations with banner in hand and wig on head look absolutely ridiculous and are completely counter-productive.’
His view was that the focus must be on ‘the only real weapons’ – that is refusing to take on instructions for inadequate pay, and working on government ministers, who ‘however resistant, are at least likely to have a better understanding of the problem than most of the wider public’.
Lord Sumption reflected on the changes to the profession since he began in 1975, before concluding that ‘the Bar is still where the magic is’.
Georgina Blower, Farringdon Chambers and Counsel Editorial Board
Next year marks 100 years since women were first permitted to enter the legal profession and the Bar Human Rights Committee celebrated with a seminar on equality and women’s rights led by an eminent panel of lawyers and human rights defenders. Chaired by Kirsty Brimelow QC, they tackled wide-ranging topics such as the Me Too movement, female imprisonment and the diversity of the judiciary.
The perennially impressive Baroness Helena Kennedy QC discussed two of her published works, Eve was Framed and Eve was Shamed, which focus on how the law constantly and inevitably fails women. She cited research that 83% of female inmates are imprisoned for very low-level, non-violent offending and that over 64% have mental health problems. She asserted that judges have suffered from ‘a failure of understanding’ regarding equality. It is not about simply giving women the same sentence as men, irrespective of their child care responsibilities, for instance. She said that ‘to do justice you have to look beyond the court room doors’ and recognise that women are not living equal lives to men. Women can be deeply disadvantaged and victimised – and whilst this may be true of some men – it is intrinsically different because of the inequality of our society.
Baroness Kennedy further stated that ‘violence against women is so much part of the tragedy of human rights abuse around the world’. She said that women are seen as property, whether they are sexually exploited in refugee camps or used as a vehicle for punishment of the enemy during conflict.
Myths and stereotypes permeate society’s treatment of women and their experience of justice. Victim-blaming is commonplace. Zubaida Mahmoud, an associate from Olaniwun Ajayi LP, cited the widely reported rape trial in Ireland where defence counsel commented on the complainant’s choice of underwear in their closing speech. She called for a ‘move away from focusing on what the victim has or has not done’.
Susi Bascon, Director of Peace Brigades International, discussed the essential work of human rights defenders. She shared the powerful story of Valentina Rosendo Cantú from Mexico who was raped by eight soldiers in 2002 when she was 17 and had to overcome enormous obstacles before two of her attackers were finally brought to justice earlier this year. She said that, whilst lawyers play an important role, it often comes down to the courage and strength of individuals to seek justice. She said: ‘These women, despite the risks, despite the pressures, they are committed to upholding the rule of law.’ She importantly reminded us that we all have a role to play in championing human rights.
The panel discussed the lack of diversity of the judiciary, which Baroness Kennedy considered was a result of embedded subconscious bias in decision-making. Zubaida Mahmoud discussed the advancement of women in the legal profession in Nigeria, explaining the difficulties faced by married women when seeking judicial appointment outside of their state of origin.
In discussing the Me Too movement, Baroness Kennedy suggested ‘young women are saying they have had enough’. She said that the movement has been something about ‘women’s anger about law’s failure’. She said that men must call out unacceptable behaviour and be available to women when they have a complaint. However, she acknowledged that there will be men who will be accused unjustly and we must have fair processes for dealing with allegations, otherwise she said ‘there will be a serious backlash against women and it will not work to our advantage in creating an equal society’.
Georgina Blower, Farringdon Chambers and Counsel Editorial Board
This was an excellent seminar; outstanding speakers and very well chaired by Sam Roake of Red Lion Chambers. Good practical advice from varied fraud careers, even though David Perry QC, tongue in cheek, suggested that they should never listen to advice, but make up their own minds. Claire Cross, Called 18 years ago, now a partner in Corker Binning, had considerable experience in the Inland Revenue, the Financial Conduct Authority and elsewhere, before going into private practice. That flexibility allowed her to outline varied routes to pursue a fraud practice and was a great boost to confidence. You must get out to events so that people in your area know who you are. Take every opportunity to speak. Don’t be afraid. Remember, you are good enough to do this. Work out what matters to you and do it. Master the skills of written advocacy.
Alison Pople QC of Cloth Fair Chambers, a real expert in financial and corporate crime, was asked to consider civil and criminal fraud practice. So much fraud is multi-faceted and thus, by inference, your knowledge must cover wider areas. Market yourself by building up your experience. Fraud crosses boundaries, international and otherwise. So, for example, your skill set may and should extend naturally to disciplinary regulatory work. But if it is not within your expertise, don’t do it! This was clear, valuable and very balanced advocacy.
David Perry QC of 6KBW, now Treasury Counsel and with enormous experience at the highest and most diverse levels (Blue Arrow and Polly Peck onwards), was excellent, with delightful stories. How do you get noticed? No one gets noticed on their own. So the best advice is get a mentor. Again, iconoclastically, you should never have a plan! Do every case as if it is the most important in your life. (Inwardly, your reviewer cheered at that point.) He favoured a positive approach to the unexpected call on your services. Don’t get pigeon-holed, for specialisation is bogus and don’t underestimate the effect of chance in your life. It was all enormously persuasive, wise, funny and encouraging.
Nick Vamos, partner in Peters & Peters, who has held very high responsibility posts in different branches of the CPS, painted a convincing picture of life in private practice. Often the question is not who did it, but was it a crime at all? Variety is wide; fraud work can go from election law, disciplinary proceedings and corruption to cases with an international element. If you have good judgment and problem-solving skills, then you have the abilities to succeed. A question allowed advice to female advocates seeking fraud work, again stressing the value in finding a mentor to act as a sounding board. Networking is key. This seminar succeeded because it did not patronise and plainly would have built young advocate confidence. Top-class.
Nigel Pascoe QC, Pump Court Chambers and Counsel Editorial Board
CSR: a business case or a social imperative? Well, for those concerned at the rise of the ‘handwringing liberals’ (of which I confess to being one), I am pleased to report that CSR (chambers’ social responsibility) is both.
Amanda Tipples QC opened the session by introducing Lakhraj Minhas of Heart of the City, a project established by Westminster City Council to support businesses developing responsible business activities. Lakhraj talked about what CSR means in decision making, looking at it from three perspectives: community, workforce and environment. She examined what we can do for the community – pro bono advice and representation, charitable work, and work in schools; for our workforces – E&D (or D&I), wellbeing, work conditions and pay; and for the environment – recycling, carbon footprints and ‘green’ suppliers.
Addressing the business case, she said that there are increasing calls for greater transparency on CSR commitments, from government, consumers, clients and employees. Clients and procurement officers have long required greater transparency and place work according to CSR commitments; a fact required of, and well understood, by law firms, but from which trend the Bar has largely been immune.
Things are starting to change. Gary Blaker QC, of Selborne Chambers and the Bar Council Pro Bono Committee and Alec McCluskey, of Maitland Chambers, described in detail their chambers’ programmes. One set has partnered with a school in Camden. It pays the cost of a coach to take children to a park. It organises and pays for annual trips. A delegation from chambers attends the school play. Children from the school are invited into chambers to see where and how barristers work.
The takeaway from the session was that a chambers is not expected, and cannot expect, to start with a complete suite of CSR policies. Start small. Select an initiative and discuss it with a few like-minded people. Then promote and develop that initiative. When it is under way, approach the management committee to seek its approval and, hopefully, its adoption as a chambers initiative. As such initiatives are adopted they will grow and multiply, and eventually they will become a part of chambers culture. Little acorns and all that! And most people will have at least one acorn!
Michael Todd QC, Erskine Chambers and Chair of the Counsel Editorial Board
The morning session co-hosted by the Bar Council ADR Panel and the FLBA promised a comparison of the civil and family models of ‘ADR’ (for which read ‘mediation’). We were guided through a worked example, devised by a member of the high-quality panel, Rhys Taylor, to illustrate the randomness of a process which could lead to the same set of issues being viewed as a family dispute with civil overtones or a civil dispute with family overtones and mediated in contrasting ways. Taylor had come equipped with a smiley pinger (yes, there is such a thing) to impose a strict time limit on his fellow panellists, family mediators, Anthony Kirk QC and Karin Walker, and civil mediators, Spenser Hilliard and Colin Manning. Karin had the distinction of being so pithy that, by the end of the session, she, alone of the panel, remained unpinged.
For the purposes of the exercise, the unmarried Gavin and Stacy, whose, five-year relationship had resulted in a daughter, Nessa, a house with a net worth of £1.1m, a clutch of unresolved equitable issues and a common assault conviction for Gavin, wanted to resolve their differences by mediation.
Under the civil mediation model, they might have expected one session over the course of a single day – a very, very long day from the experience of the civil mediators – whereas with family mediators, they might have had three or more sessions of no more than three hours each. The different mediation techniques seemed to have most in common at the start of the process and to diverge thereafter. Family mediators tended to see and to expect less direct involvement of lawyers and also to expect, subject to any issues of safeguarding, more to be done in joint sessions. ‘Shuttle diplomacy’, although not unknown in the family model, was rather more prevalent among civil mediators.
There were common elements too, however: the panel was unanimous in expecting lawyers involved in mediation to be well-prepared and not to be too adversarial. While stressing the need for documentation to be focused, all seemed to expect more in the way of advance information than has been my experience as a (civil) mediation advocate.
The session was interactive as promised and there were some lively interactions between panel and audience, particularly when the fine line between mediating and advising was discussed. Inevitably in just an hour there were questions that didn’t get asked and with a panel that united behind Anthony’s view that mediation ‘goes nowhere without the fullest disclosure’, the question I came away wishing I’d asked was whether they saw any place for early mediation where a settlement produces the greatest benefit in terms of saved costs?
Rawdon Crozier, KBG Chambers and Counsel Editorial Board
Richard Hoyle, Chair of the Young Barristers’ Committee, was the pick of the keynote speakers in the morning plenary session, giving what Baroness Chakrabati, Shadow Attorney General acknowledged was ‘too good a speech to follow’.
It was probably too good a speech by which to be followed as well, although David Gauke, the Lord Chancellor and first solicitor to hold the post, had said many of the right things, acknowledging that the Bar was a calling and recognising the under-funding of criminal Bar and, in particular, the junior criminal Bar (see full speech here). Whether the additional £23m of funding he announced (strictly and to be scrupulous about it – as he was – £8m on top of an already announced £15m) will be sufficient to reverse the slow strangulation of the publicly funded criminal Bar which has gone under governments of all political colours since I was Called, is something outside the remit of this article but it is not an irrelevant bit of personalisation because it was the theme of Shami Chakrabarti’s address, which closed the session.
The best of her address was very good and had she cut about a quarter of it, she might have threatened to repeat Sir Henry Brooke’s achievement of receiving an ovation. She was in full flow when talking about the ‘next Labour government’ but this party political broadcast, along with Gauke’s earlier blandly reassuring works on Brexit, tried the audience’s patience; for many in the room, Brexit and Jeremy Corbyn are the Scylla and Charybdis of this country’s present political course. She must be commended, however, for her passionate defence of the judiciary and so much else.
Richard Hoyle’s address was flawless, no misplaced rhetorical flourishes, no discomfort. He started by drawing attention to fact that the words ‘Justice for all’ are at the centre of the Bar Council logo, before delivering the admonition that they are a statement of aspiration, not reality, and that the gap between aspiration and reality has been growing. As he developed this theme, he not only outshone the Lord Chancellor and the Shadow Attorney but delivered an implicit rebuke to Lord Sumption, who had suggested earlier in the day that the Bar should give up its fight for the restoration of civil legal aid, pointing out that ‘small scale studies indicate that for every pound spent on legal aid, more than a pound is saved elsewhere…’
Hoyle built to this conclusion: ‘there is not simply a Conservative case for justice or a Labour case for justice. There is not simply an economic case for justice or a social case for justice. There is not simply a constitutional case for justice. There is a single compelling case for justice of which these are all but individual threads. It is a case which every single person in this room, every single person at the Bar, every single person on the Roll, and every single person in society at large needs to understand, and needs to be making…’ Amen.
Rawdon Crozier, KBG Chambers and Counsel Editorial Board
The Brexit workshop could not have been more timely. The Bar Conference was the same weekend as the EU summit. Inevitably, we speculated on the upcoming debate and vote in the House of Commons over the ‘deal’. We were therefore asked what parliamentary outcome we preferred. It may be simpler to note that the vast majority in the room were Remainers.
Rhodri Thompson QC set the scene. The ‘deal’ is only partly a deal. It does consist of a very large agreement which is intended to be a binding treaty, but in addition a very short declaration which is not binding. Even if everything is approved, we will not be moving into a transition period next March because there is nothing to transition into. The status quo will prevail while we negotiate the free trade agreement the government has failed so far to deliver. Free trade is about goods, not legal services, which will be left out. One member state cannot veto the ‘deal’ but they can veto a free trade agreement, so the bargaining and trade-offs there are yet to come.
With respect to our distinguished visitors, there was no real discussion about the so-called Irish backstop. It was made clear though that Northern Irish farmers and businessmen, while clinging to the Union, need access to both markets in order to attract foreign investment. More immediately important to practitioners was the fact that there is nothing on civil cooperation although at the Plenary Session the Justice Secretary promised that the government would negotiate something.
Currently, barristers are able to deliver their services throughout the EU thanks to the single market and a relevant Directive. That won’t happen in the future. There will not be a visa requirement for temporary work in the EU (Hugh Mercer QC described it as ‘Hong Kong minus minus’) which includes English-language courts like the Frankfurt Chamber High Court. After March 2019 the Irish will be the only English-speaking common law barristers with full access. For those who have thought of qualifying in Dublin, there are only a few months left in which to do so. Member states will have ‘regulatory autonomy’ as to whether or not to allow English barristers to deliver services. The British input into EU rules and regulations regarding legal matters will cease, as will, as Hugh explained, our central position for being able to take a judgment throughout the EU. Citizens’ rights will become residents’ rights.
There was a sense throughout of doors closing. There were good explanations of what could happen next but no one demonstrated enthusiasm for it.
The Bar Council has produced significant work in this area: see here.
David Wurtzel, Bencher of Middle Temple and Counsel Editorial Board
The passion, drive and energy of Susan Acland-Hood can hardly be doubted following her spirited defence of the HMCTS reform programme in response to questions from Derek Sweeting QC. Many would have been cowed by the sheer scale, aims and challenges of what may be described as highly ambitious and, at times, controversial proposals for court reform; but not Ms Acland-Hood.
The enormity of the task appears to be what gets her out of bed in the morning; before becoming HMCTS Chief Executive in 2016, Ms Acland-Hood had previously been the Director of Enterprise and Growth at HM Treasury – responsible for policies on productivity, growth, business, infrastructure, exports, competition and markets, and for energy and transport spending.
The report of the Public Accounts Committee (PAC) published on 20 July 2018 branded the £1.2bn modernisation programme as ‘hugely ambitious’. The reforms involve the digitisation of paper-based services, moving some types of cases online, introducing virtual hearings, closing courts and centralising customer services. The PAC reported that ‘the performance of HMCTS to date shows that it has much to learn if it intends to do everything it plans’.
The Chair of the PAC, Meg Hillier MP, felt constrained to say: ‘Government has cut corners in its rush to push through these reforms. The timetable was unrealistic, consultation has been inadequate and, even now, HMCTS has not clearly explained what the changes will mean in practice.’
Ms Acland-Hood refused to accept the PAC’s criticisms, saying instead that she accepted its recommendations. Her response to the suggestion that HMCTS had failed adequately to take account of the effect of the proposed reforms on access to justice, was that changes had to be made even if all possible outcomes could not be foreseen; otherwise there would be no change.
As part of these reforms, the HMCTS and MoJ announced that the Court Service was to pilot, in civil and family courts, more flexible hours (see News p 7). Flexible hours are not being piloted in criminal courts. This pilot, Ms Acland-Hood said, was not about people working longer hours, but about ‘shifting hours’ so that there would be three court sessions each day.
She dismissed concerns that clerks would be tempted to send their junior barristers to court for the whole day, encompassing the three court sessions. As to the suggestion that flexible hours working would discriminate against those with caring responsibilities, and as 85% of carers are women, it is they who would be most affected, Ms Acland-Hood’s response was that it depends what all the data says, and that a balance would have to be struck between those with different interests, for example litigants in person.
We can only hope that any evaluation of the court reforms is as rigorous as Ms Acland-Hood’s defence of them.
Michael Todd QC, Erskine Chambers and Chair of Counsel Editorial Board
The Employed Barristers Committee (EBC) session’s three speakers all had different experiences of practice. Jenny Agnew, Chair of the EBC, was with the Army Legal Service before joining a national sports organisation. Penny Hamilton had moved from chambers to central government, to PwC before re-joining a specialist tax set and retiring. Sara George started out in chambers doing criminal work, moved to the FCA before moving to a law firm and is currently a partner at Stephenson Harwood. Each shared their professional background and how their career moves had come about.
A number of questions were posed on the Bar Conference app before the session:
Audience participation and dialogue amongst attendees meant that some of the interesting issues arose from outside the confines of the questions asked. The issue of court-based work being compatible with personal obligations between 10am-4pm, whether barristers can sue others (yes, the Code deals with restrictions), and the ability of employed barristers to do pro-bono work were all canvassed. For pro-bono work, in part thanks to Daria Gleyze, Employed Pro Bono Barrister of the Year 2018 winner, Bar Mutual now offers employed barristers insurance; for those interested in pursuing pro-bono work, please contact: jcampbell@weareadvocate.org.uk.
Melissa Coutinho, Government Legal Department and Counsel Editorial Board
Talk about unsung heroes. On the day that the Lord Chancellor announced limited improvements for criminal practitioners, all speakers at this seminar brought home to your reviewer the huge amount of detailed work being done on our behalf to strive for decent fees across the board. Space does not permit the detail, but the profession should realise just what a huge debt we owe to the Remuneration Committee. I was incredibly impressed by the clarity, dedication and optimism of four top practitioners, battling against the odds on our behalf.
Just a few glimpses. First, Neil Hawes QC, totally on top of criminal fees, and welcoming cautiously the latest news that day from the Lord Chancellor: a very welcome beginning. Later he spoke of a very positive step in the right direction and that discussions have not yet stopped. He reported that the Ministry of Justice does now understand some of the practical work we must do and importantly, the pressures on the young bar. Further the Attorney is a friend at the heart of Government. So, some cause for optimism, Stick it out. Later, passionate, clearly articulated views from veteran advocate and former MP, Jerry Birmingham, pleading to get it right in the future for the young advocate. Then pungent comment and question from Andrew Taylor, conveying all the anger and frustration of the criminal Bar: ‘They gave four hundred million for potholes.’ Neil Hawes, calm, frank and surefooted, repeated the case for continued cooperation.
The three other senior contributors provided the details of fee updates and battles in a variety of civil and other proceedings: joint Chair, Nick Bacon QC and joint Vice-Chairs, Mike Horne QC and Martyn McLeish. The included a review of continuing remuneration arising from personal injury and clinical negligence cases. Then spin-off issues, such as the increase in litigants in person. A reference to the Innocence Tax, highlighted as it has been by The Secret Barrister and totally indefensible in a fair judicial process. There will be further reforms arising from the Jackson Reforms. Public access problems and how can I enforce the payment of my fees? And much more. Together, I felt that the speakers demonstrated advocacy at its best: resolute, good humoured and transparently clear. They all left your reviewer with a sense of respect and awe. This was the Bar at its best and we all should be proud of them.
Nigel Pascoe QC, Pump Court Chambers and Counsel Editorial Board
The title of the Young Bar’s opening keynote was ‘Taking the Road Less Travelled’. Leslie Thomas QC used his speech to challenge young barristers to do more for others. He reminded delegates that they had chosen a profession in which the ‘main goal is to serve’. He asked his listeners to consider their legacy and to invest in the future of others. He encouraged those in the audience to speak to young people in under-performing schools and to use their abilities to help others. The speech was a clear call to action, as delegates were reminded of the importance of nurturing diversity, not as something to be tolerated, but to be embraced.
Chaired by Athena Markides (Vice-Chair, Young Barristers Committee), the panel included Andrew Walker QC (Chair, Bar of England and Wales), Richard Hoyle (Chair, Young Barristers Committee) and Frances Judd QC (Chair, Family Law Bar Association), as well as keynote speaker Leslie Thomas QC (Joint Head of Chambers, Garden Court Chambers).
The audience asked wide-ranging questions focusing on the future of the Bar. Richard Hoyle identified the main challenges currently facing young barristers as fees and wellbeing. He emphasised that a key issue to be addressed in relation to wellbeing is the expectations on working hours. Andrew Walker QC reminded the audience of the Bar Council’s work on magistrates’ court fees and the steps taken to work with chambers in order to assist junior barristers, particularly working pupils. Those who are interested in this topic can consult the ‘Young Barristers’ Fees in the Magistrates’ Court’ article within the Young Bar Hub.
A lively discussion on flexible working primarily focused on the increasingly common trend of barristers working away from their chambers. The panel actively encouraged young barristers to maintain links with clerks and with other barristers by going to chambers and through the use of technology. Younger members of the Bar were encouraged to find a mentor and to form internal junior members committees within their chambers, to ensure that their voices are heard.
Tackling discrimination was a key focus in the discussions about the future of the Bar. Andrew Walker QC outlined the approach taken by lawyers in New Zealand, who created a protocol to confront discrimination in the legal profession, as an example of a proactive effort to counter this serious issue.
The overarching message from the keynote and forum was clear: junior barristers should use their platform to help others, and they must be supported in order to thrive (see ‘What Can I Do?’). The gauntlet was laid down before junior members of the profession: take the road less travelled, and it will make all the difference.
Joanne Kane, Carmelite Chambers and Young Barristers’ Committee
This is my third year covering COMBAR sessions at the Bar Conference and it seems unfair to carp about how much they invariably try to fit in to a single session.
This year, in association with the Bar Council’s International Committee, it was billed as international dispute resolution and effective advocacy before international commercial courts. We are in the midst of a proliferation in international commercial courts, it seems, and if one is going to be taken on a tour of them at breakneck speed, a handout would have been useful, particularly when many of those referred to have very similar acronyms or are Chinese.
As it was, it was only during my post-conference read-through of my notes (and the resulting, necessary, post-conference research) that I discovered that I had rendered the Chinese ‘Belt & Road’ Initiative as ‘Biltong Road’ and the two Chinese Commercial Courts to be set up under it as ‘Z/X?’ (Xi’an) and ‘Sh???’ (Shenzhen).
They were a bit of a diversion in any event, given that they are to be under the auspices of the Chinese Peoples’ Court and not to be constituted with international judges, both of which are reckoned to be bars to their being fora of choice for any party with the leverage to insist on some other jurisdiction. Historically, the Chinese have promoted the use of arbitration because they are distrustful of the courts of local jurisdictions. Elsewhere a generally common law approach, the use of international judges and the widespread use of the English language, means that, if one can get a foot through the door, the possibilities for advocates whose skills have been honed in this jurisdiction are considerable.
Experience of the cut and thrust of cross-examination is something which advocates in the courts of England and Wales offer to a degree unmatched by those in other jurisdictions but there has to be an awareness of local customs and the expectations of international clients. This was the message from an impressive panel, moderated by Amanda Pinto QC, Chair of the Bar Council International Committee, and consisting of Sir Jeremy Cooke, now an International Justice of Dubai International Financial Centre Court and Singapore International Commercial Court, Michael Patchett-Joyce, Vice-Chair of the International Committee and Steven Thompson QC, also Vice-Chair and, among other things, Chair of the Bar’s China Interest Group.
Brexit inevitably cropped up, many of our European neighbours seeing possibilities of setting up their own international commercial courts as a result of the UK’s decision to leave the EU. The plans for a court in Paris seem most advanced. London has had an international commercial court since 1895 and from a low point in the late 1950s, when in one year just 14 cases were heard, there are now 700 to 800 cases heard annually. This is a prize upon which several European jurisdictions now have their sights set.
Rawdon Crozier, KBG Chambers and Counsel Editorial Board
This useful workshop began with a series of questions. The main one was in the title. As delegates worked their way through various scenarios, it became clear that there was rarely a single right answer. At the end of each discussion, Esther Gamble summed up what good practice should be.
Faisel Sadiq outlined the scale of the problem. Barristers’ Working Lives 2017 found that 40% of women at the Bar had seen or experienced harassment, but only 20% of them reported it, and of those who did, half were unhappy with the response. Someone asked, ‘Reported to whom?’ There is no data on this or indeed why they were dissatisfied. We know that it wasn’t to the Bar Standards Board (BSB) who had only received two such complaints in the past five years. BSB policy is that the victim is obliged to report harassment but there is no action against them if they do not. Faisel said: ‘We advise to start it in chambers.’
Dee Masters described a ‘typical’ victim of harassment: female, young, single, financially precarious and at the weaker end of the power dynamic. Statistically, for a barrister it is a BAME woman doing crime.
The scenarios and outcomes: (i) An older, gay, male barrister invites a male pupil to his flat to discuss his tenancy prospects. Clearly unacceptable on various grounds not least of which is the need for transparency in chambers’ decisions. (ii) A solicitor persistently invites you for a drink but you feel uncomfortable and keep declining. Clearly unacceptable. Esther recommended that one needs someone to talk to about it who can in turn talk to the solicitor. (iii) A judge says in open court of a woman advocate, ‘you lower the age in this court by a decade and may I say you increase the average attractiveness too.’ Clearly unacceptable. There were various opinions about how to deal with it.
One could speak to the young woman in question (though her view is not the deciding factor since this happened in a public court). One delegate said she would not say anything though she had in the past forthrightly told a judge to stop bullying her. Faisel had had experience with a remark with a racial element. He decided not to say anything in deference to the potential impact on his client’s prospects.
There was a discussion of ‘benevolent sexism’ (commenting on women’s appearance diminishes their credibility and disarms them before negotiations).
Delegates were told where to go for help: chambers’ E&D officer, a trusted colleague or head of chambers, a Circuit Woman’s Forum, or ring the Bar Council helpline on 0207 611 1426. Continuing with a 80% non-reporting rate will clearly not ‘stop it’.
David Wurtzel, Bencher of Middle Temple and Counsel Editorial Board
The concluding session featured two judges who began their careers as solicitors. This, their interviewer suggested, showed a changing of attitudes; a session featuring two solicitors would not have concluded an annual Bar Conference 20 years ago. While this may be the case, audience members challenged the use of the word ‘fusion’ on the basis that each branch of the profession had a different role and skill set. This premise both judges supported, albeit their very different personalities providing different perspectives and insights.
LJ Hickinbottom spoke of some judicial functions not requiring a presence in court at all. There were a variety of possibilities, and people should do their homework. HHJ Molyneux agreed, and shared her own experience of hiring a barrister to coach her in criminal law, assiduously doing six weeks of homework before applying to be a Recorder. Both considered that being determined and well prepared were key. HHJ Molyneux said her own route was such that she was a statistical anomaly. Nonetheless, learning the relevant law and becoming familiar with the surroundings was important because becoming a judge is a different role from practising as a lawyer.
Ames quizzed them on technological advances, skills and tips for succeeding in judicial aspirations, before handing over to the audience, who asked about the EU model of career judges who never practise as lawyers, and the impact of increasing litigants in person. HHJ Molyneux proved herself an entertaining speaker, sharing her opinion that her strengths as a solicitor who did not practise criminal law came from a) knowing nobody, and b) knowing nothing! Having no preconceptions of the barristers who appeared before her, and listening carefully to what they said, enabled her to check for herself whether their arguments really stood up to scrutiny. She did not notice or care if those before her were solicitors or barristers, as long as what they said, they said well!
LJ Hickinbottom admitted that the Court of Appeal was behind crown courts in taking advantage of technology, but the savings in resources meant that these could provide additional efficiency, without a level of secrecy. Justice, it was said, would still be open. His top tip was to enjoy the pursuit of a judicial career, learning about the different roles, and the skills they require. HHJ Molyneux’s top tip was ‘less is more’ and being ruthless about identifying the point that is going to win an argument. LJ Hickinbottom did not think a career judiciary would occur in the UK anytime soon, given the lack of infrastructure of a judicial college that could teach the relevant skills to recent law graduates. HHJ Molyneux pointed out that there is no short cut to life experience, which can help in making difficult decisions.
Asked about ‘threats’, both discounted what was said in person, or on social media when emotions were running high. They recognised that the British public at large respect and acknowledge the rule of law. They concluded by thanking the barristers who appeared before them, for conducting themselves in a professional manner, displaying brilliant advocacy, working in a spirit of collegiality with their opponents and being committed to the cause of justice.
Melissa Coutinho, Government Legal Department and Counsel Editorial Board
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