Michael Beloff QC
On Friday 21st May 2010 the Centre for Public Law held the tenth in the series of lectures in honour of Sir David Williams. The lecture, entitled "A View from the Bar" was given by Michael Belhoff QC:
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Transcript
Christopher Forsyth
Good evening, ladies and gentlemen. The annual Sir David Williams Lecture is endowed by Mr John Nolan of the firm of Steptoe & Johnson of Washington DC and Mr Michael Russ of King & Spalding of Atlanta, and it is appropriate that I start the proceedings by noting with gratitude and appreciation the generosity of Mr Nolan and Mr Russ for making this evening, and all the nine previous Sir David Williams Lectures, possible.
This is the first Sir David Williams Lecture to be given since Sir David died last September and so it is appropriate that we should remember also the man, a friend of many here this evening, who inspired the generosity of Mr Nolan and Mr Russ while they were Visiting Fellows at Wolfson College. It would be otiose to list before this audience Sir David’s many achievements, but I will perhaps be forgiven for repeating what I said at his memorial service. Sir David Williams was a man of immense humanity, with sympathy and understanding for all. Through his work and through his many students, he contributed mightily to the formation of modern public law; he was simply the best of law and the best of Cambridge. We shall not look upon his like again.
And now to our lecturer this evening, the Honourable Michael Beloff QC. Michael Beloff is one of the best known and most distinguished administrative law barristers in the land today, having appeared, for instance, in the House of Lords on public law matters on more than 40 occasions as well as in many other tribunals across the entire common law world. But he is much than a practitioner, having had another career in education and scholarship. He was president of Trinity College, Oxford from 1996 to 2006, and he has contributed greatly to the scholarly literature on public law in many facets and in many ways. He has lectured at universities all over the world.
The Chambers’ Directory of Barristers for 2010 says of him that he is a sheer joy to listen to, so we may anticipate a feast as he addresses us now on the subject of ‘A View from the Bar’. But I have left his greatest distinction until last. It was Sir David Williams, who, after careful consideration, chose him to deliver this, the tenth, Sir David Williams Lecture. Ladies and gentlemen, Mr Michael Beloff.
Michael Beloff
My lords, ladies and gentlemen, the sense of privilege that I feel in being invited to deliver this lecture is tempered by my sadness that the distinguished lawyer in whose honour it was founded is no longer with us. David was a friend of and mentor to me for many years. We first met in the 1960s when he was a Law Fellow at Keble, Oxford, a part of his career which was mysteriously airbrushed from the memorial service which took place earlier this year in Great St Mary’s Church. He became an academic tenant in the chambers of 4-¬5 Gray’s Inn Square, of which I was then joint head. He acted, as he put it, as, “my junior” when I chaired the judicial sub-committee of the senior salaries review body. We were clearly suspected, in tandem, of apparent, if not of actual, bias towards the payees, since at the conclusion of our term no lawyers were appointed to replace us.
He was one of my referees when I became president of the smaller – I choose the adjective with care – of the two Oxbridge Trinities, and it was characteristic of David, whose modesty was pre-eminent among his many memorable qualities, that in asking me to be the tenth lecturer in this series, he told me only after I had accepted that he was, in all likelihood, destined not to be among the audience. Alas, his prophecy was fulfilled. I miss him greatly.
My predecessors of lecturers have all been lawyers of the highest repute, the last four being Chief Justices of major democracies. Indeed, for me to follow in the immediate footsteps of the Chief Justice, United States of America, albeit a stripling some years younger than risks giving a new meaning to the word bathos, but incapable of matching these generals in delivering ex cathedra statements from the mountain peaks of the law, I, a mere foot solider, have decided to pitch my perspective from its plains.
I have been, for more than four decades, a member of the Bar of England and Wales, so crossing what my researches for this lecture identify as a chronological plimsoll line. In the Bodleian Law Library, I came across two memoirs entitled “Forty Years at the Bar”, one by Edward Abinger, the other by James Balfour [Bowen?] only to find a few shelves on, a volume entitled “Seventy-two Years at the Bar”, by Ernest Bowen-Rowlands, a quantum leap of forensic longevity, equivalent, in terms of record-breaking, to Usain Bolt’s exploits as a sprinter. Abinger’s plea in litigation for his autobiography rested on the coincidence that as he wrote, he had nearly attained the three score years usually allotted to men, coupled with the urgings of his many friends. I could only avail myself of half of that not altogether convincing excuse, and it is not my purpose, in mimicry of these worthies, merely to indulge in titivated courtroom reminiscence nor to give an apologia pro vita mea, although my lecture will be in part a credo.
At the end of that classic 60s film, “Alfie”, the hero, played by Michael Caine, turns toward the camera and asks, “What’s it all about?” It is that question, as a veteran jobbing attorney, that I shall seek to answer.
But let me start my voyage in that now iconic decade. I was called to the Bar by Gray’s Inn in November 1967. In order to qualify aspirant barristers who did not need to be graduates, could study law in their own time from nutshell notes scripted by Gibson & Weldon. My practical training consisted of watching my pupil master, to whom I was apprenticed for the next year, and learning from his trials and his errors in equal measure. For this facility, I had to pay him the princely sum of £50.
In those days, barristers still conventionally wore cut-away black jackets and striped trousers, and a handful continued to effect bowler hats. There were few females in the profession – in the year of my call approximately seven percent of new barristers. Objections were still voiced, devoid of any sense of any shame, to women being admitted to Chambers on the basis they would inevitably soon depart to pursue their proper and pre-destined role of childbearing and rearing. Ethnic minority counsel were still rarer. While the Inns of Court plays host to a significant proportion of overseas students from the new Commonwealth and old Empire, those same students were expected to return to their own country and exploit the title of Barrister at Law to immediate advantage, accelerating to positions such as Attorney General or even Chief Justice, with a velocity which their English equivalents could only emulate in their dreams.
Chambers were generally small. My own set, 2 Hare Court, had, when I arrived, twelve members and no QCs. Chambers names were then their addresses too. Membership was for life. Departure from the set to which one had been admitted as a tenant, indeed as a pupil, on the solitary say-so of the Head of Chambers, himself selected on the principle of Buggins’ turn, was as rare and as disagreeable as divorce. Chambers administration rested exclusively on the clerks who arranged one’s diary, negotiated one’s fees and took ten percent of them, the so-called shilling in the guinea. Control of the profession still rested substantially with the Inns, the Bar Council being more a representative than a regulatory body, and its chairman, in Bajocian terms, being more dignified than efficient.
Solicitors were a segregated, separate and unequal branch of the legal profession. The relationship between barrister and solicitor was a vertical, not a horizontal, one, even though solicitors were the single source of barristers’ instructions. On that basis, solicitors came to seek advice only in the barristers’ chambers. It was a breach of the Bar’s professional etiquette to fraternise with them, or otherwise to advertise a barrister’s own expertise, such as it was, however discreetly. The all but omnipotent clerks acted as a barrister’s agent to the outside world and could make, but also break, careers.
Solicitors enjoyed no rights of audience in the higher courts of law, where silks still appeared with juniors who were paid two-thirds of their leader’s fee. Judicial appointments were made entirely from the ranks of the Bar. The Lord Chancellor, by means of the usual but archaic processes of consultation, himself determined who should become a Queen’s Counsel or a Judge. It was clear that some who aspired to such status had a black mark against them, but who had put it there was obscure and there was no formal means by which it could be exposed, still less eradicated. It was assumed that most barristers did aspire to the High Court Bench. If invited to accept such an appointment, a QC was expected to accept it. One judge, Harry Fisher, who swiftly abandoned the office, first in favour of the city and then of university life, after brief exposure – I parody – the monotony of personal injury litigation in Sunderland punctuated by the occasional affray in Darlington, was regarded as having done that which a gentleman should not do.
In court the tradition of oral advocacy, of oral evidence, was unchecked; precedents relied on would not infrequently be recited in full. Judges conventionally declined to read any papers before coming into court in case it prejudiced their otherwise open minds. They acted as referees, determining who won or lost, penalising breach of the rules, but were otherwise uninvolved. Cases would frequently be adjourned for counsel’s convenience, or sometimes because the judge had a public duty to perform, occasionally a euphemistic synonym for an invitation to a royal garden party.
Barristers, uniquely among the professions, were immune from suits for negligence, although also they could not sue for their fees. The only established form of dispute resolution alternative litigation after the demise long since of the duel was arbitration. The technology to support such litigation was immature. Typewriters were, at best, electric not [phonic?]. The fax machine had but recently arrived on the scene, the word-processor was unheard of, Blackberries were still fruit. Copying files was a laborious process. Conferences took place face-to-face, research was done in libraries, judges recorded evidence and argument in manuscript.
Under the Legal Aid system inaugurated in 1949, in broad terms, anyone who satisfied a means and merits test could walk through the door of any solicitor, who was entitled, regardless of expertise, to take, with counsel’s assistance, a case through from start to finish at public expense. England was truly an offshore island in the legal world. Although QCs could still travel to exotic regions of the old empire – Singapore, Malaysia, Hong Kong, the Caribbean Island, the newly independent African states – to appear in full fig and with white wig, in courtrooms cooled only by revolving fans, the domestic common law was uninfluenced by the law of the Common Market or by the European Convention on Human Rights. The writings of academics were only cited in court after their authors were dead, but not, by venerable tradition, before.
Fast forward the clock to 2010, four-and-a-half decades later, how different is the picture. Barristers are still called to the Bar by the Inns of Court, institutions of medieval origin but with considerable staying power. But the Bar is now a wholly graduate profession. Pupillage is still a necessary path of the aspirant barrister’s education, but it is preceded even to those with law degrees, who are spared the monotony of the graduate diploma in Law, by a year’s specific training by the Bar Professional Training Course in such matters as advocacy, negotiation, client relations and other matters which previously the fledgling barrister had been expected to acquire by some mysterious osmotic process. Pupils no longer pay for the privilege of pupillage, now itself a structured training programme. On the contrary, the major sets of chambers fall over themselves to offer substantial scholarships of up to £50,000 a year to attract the best and brightest of their generation. OLPAS the mark 2 model of PACH, the Pupils Application Clearing House, itself based on UCAS, restricts the window for applications to a specified time of year, in common with professional football transfers, to prevent unseemly competition.
The barristers’ formal attire of yesteryear gathers mothballs in the attic; dark suits are still obligatory, although the concept of darkness appears somewhat flexible. Women, who now constitute 58 percent of those admitted to the profession, usually wear the trousers. Minority ethnic counsel are on the rise, constituting almost 24 percent of pupils in 2007. Chambers are larger. In Birmingham, two sets have more than 100 tenants. My old set now numbers 75, of whom almost half are Queens Counsel. It has been re-christened Blackstone, in the modern style, where no significant figure in English legal history from Bracton and Erskine through to Denning and Wilberforce, have not been pillaged to add borrowed lustre to a chambers’ name, not to speak of Matrix, professional home of Cherie Booth, which has looked to Hollywood rather than to history or the House of Lords for inspiration in its title.
Tenants and pupils are chosen by a rigorous process conforming to modern best practice, informed by anti-discrimination legislation and the Human Rights Act. Not only is it now conventional for upwardly mobile barristers to move to different sets, but transfers are even solicited, again, just as they are between football clubs. The clerks, a durable race, have been supplemented by practice managers or even by chief executives. All are now salaried. The clerk’s ten percent has gone with the wind. Once it was appreciated its survival would guarantee the recipient an income far in excess of that enjoyed by the highest earning barrister.
The Bar itself has been affected by waves of legislative regulation, the Courts and Legal Services Act of 1990, the Access to Justice Act 1999, the Legal Services Act of 2007. In order to react to, but also to anticipate further control, the Bar Council has become an executive engine, spawning committees, position papers and guidelines on every subject from international relations to maternity leave. The chairmanship is now a full-time post.
The balance of power between the professions has shifted. Barristers will dispense advice in solicitors’ offices. Solicitors are no longer prohibited guests, but encouraged to attend shameless parties where they are wooed with champagne and canapés, some might say excessively. Movement within the Bar is paralleled by movement from one profession to another. Between the Bar and solicitors, is no longer a Rubicon but a rivulet. There is a wealth of legal directories in which lawyers’ specialties can be recorded. It is, nonetheless, irritating to be flattered, by some publisher, as a leading expert in a particular field but then invited to pay several hundred pounds so that this remarkable piece of intelligence can be broadcast to the wider world.
These weighty volumes nonetheless proliferate with their own ranking list, treated by barristers with reverence or contempt, depending on how they are personally assessed, in the same way as politicians variously treat opinion polls. There are the lawyers’ equivalent to the Oscars and BAFTA ceremonies held in the ballrooms of leading London hotels, in which titles such as “Construction & Technology Junior of the Year” are handed out by celebrity comperes.
Solicitors, subject only to fulfil a certain criteria in terms of experience and training, have rights of audience in the highest courts, where QCs now often appear without the buttress of a junior. As a quid pro quo, the Bar has promoted direct access, cutting out the solicitor middleman. This has not, despite dour predictions, brought a halt to the expansion of the independent Bar. When I was called, there were 2,300 barristers in independent practice, now there are over 12,000. In the law’s house, there are many mansions; there will always be scope for the buccaneer as well as the backroom boy.
Solicitors can aspire too to the highest judicial post. QCs, as well as judges, are chosen by commissions, with a strong lay component, but the Bench itself is no longer the inevitable culmination of a successful career at the Bar. The charms of college or boardroom, a preference for advocacy over adjudication and the growing gulf between the income of a fashionable silk, and even the Lord Chief Justice, have ensured that by no means all who could be on the High Court Bench are, or increasingly will be.
Modern technology has transformed the operation of the law. Video conferencing has become common. Courts can accommodate simultaneous displays of evidence on screen. Submissions are handed up and judgments handed down on disk. Research is increasingly done through the electronic database and the World Wide Web. Professor Richard Susskind has termed the lawyers of the future “legal information engineers”. In court, influenced by civilian and transatlantic example, written now accompanies oral advocacy. Skeleton arguments and witness statements have to be provided, judges are expected to read them in advance, and some, indeed, do.
They have become case managers, controlling the timing and pace of litigation, conscious of the need to meet targets and to cut costs. Barristers can be sued for negligence and even exposed to wasted costs orders. They are obliged to carry insurance and can enter into contracts to provide legal services to their professional clients. Adjudication has been, in part, privatised, with mediation and other forms of ADR supplementing more conventional arbitration. There is a Community Legal Service and a Criminal Defence Service, a system of state defenders to complement the Crown Prosecution Service, old style conventional legal aid for civil work being swept away, it no longer exists for personal injuries claims or most damages actions. And the Legal Services Commission enters into franchise contracts with vetted practitioners to provide services. Conditional fees are now allowed to support privately funded litigation.
It is closing time in the gardens of the East. Malaysia ceased to be an area where English silks can appear, Singapore almost so, and even in Hong Kong the Bar Council operates a justifiable protectionist policy. Strasbourg and Luxembourg provided new fora to replace the old. In civilian terms, doctrine as well as jurisprudence can be relied on in litigation and living academic can collect the number of their citations in judgments as well as in the footnotes of prestigious journals. Comparative law has infiltrated forensic argument. As Tom Bingham precipitately noted, “There is a world out there.”
But has the transformation of the context transformed the content? Are the values and virtues of the Bar what they were? Can they and should they survive this tsunami of reform? Tom Bingham, amplifying his much-quoted Williams lecture on the rule of law into a slim volume, wrote in his chapter on a fair trial, “Scarcely less important than an independent judiciary is an independent legal profession, fearless in the representation of those who cannot represent themselves, however unpopular or distasteful their case may be.” In that single sentence, are identified three elements crucial to the Bar’s ethos: availability, fearlessness and independence, but the greatest of these is independence.
It is the availability as much as the quality of representation which is the guarantee provided by the Bar. Under the so-called cab rank rule, any barrister not otherwise engaged or conflicted out and competent in the relevant area of law, must appear for any client willing and able to pay an appropriate fee, even if he disapproves of the client’s character or cause. It was said in one analysis of legal ethics, to be to barristers what the Hippocratic Oath is to doctors, and in Arthur Hall v Simons, the Law Lords variously described as a valuable professional rule or ethic, a long and honourable tradition and as a fundamental and essential part of a liberal, legal system. In the same case, various rationales were supplied. The rule ensured that no one is left without representation, even the most unpopular and anti-social. It protects barristers against being criticised for giving their services to a client with a bad reputation. It negates the identification of the advocate with the cause of his client and, therefore, assists to provide him with protection against governmental or popular victimisation.
Some of elsewhere pitched its justification high. Erskine defended his own defence of Thomas Paine, author of the Rights of Man, with the words, “From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject, from that moment the liberties of England are at an end.” Some have pitched it low. Geoffrey Robertson QC wrote: “It reduces the amount of excrement through the letterbox.”
Yet the virtues of cab rank rule are not always recognised outside the profession. The abolitionist, Granville Sharp, prime mover in Somersett’s case, when Lord Mansfield famously determined that slavery was unlawful in England, criticised Dunning, counsel of a slave owner, who had represented a slave in an earlier case, for his forensic volte face, recording his disapproval of, “an abominable and insufferable practice in lawyers to undertake cases diametrically opposed to their own declared opinions of law and common justice.”
When I appeared before the Committee of Privileges, in a vain effort to postpone the ejection of the hereditary peers from the House of Lords, Margaret Jay, the then leader of the House, came up to me in the Moses Room shortly before the hearing and expressed her surprise at my appearance, as she phrased it, “on that side.” And yet, when some years later, in an article in The Spectator, I suggested that retired members of the university who lived in Oxford had no more obvious right to vote on university affairs than hereditary peers to participate in the deliberations on Upper House, Lord Trefgarne, one of my sometime clients, wrote a letter complaining that my views seemed inconsistent with my representation of hereditary interests in the earlier litigation.
Others have suggested that the rule is more mantra than mandate. Lord Steyn in Arthur Hall said, “Its impact on the administration of justice is not great. In real life a barrister has a clerk, whose enthusiasm for unwanted briefs may not be great, and he is free to raise the fee within limits.” Yet the menace, if any, comes less from avarice than from ideology. In setting up Chambers in Lambeth as a barristers’ co-operative, where profit was not the prime mover, Lord Gifford, hereditary peer and soidisant passionate advocate said: “We let it be known that we would not want to prosecute cases for police, nor would we act for landlords against tenants or for employers against employees.” Threatened with disciplinary proceedings by the Bar Council, he ingeniously defended that stance on the basis that his Chambers had indicated a preference, not imposed a prohibition. But even in sets which house the alternative Bar or those of avowedly left of centre persuasion, there is no reason to believe, or any evidence to support, that their members could or indeed would purge from themselves what the current chairman has called the DNA of the Bar. As a barrister cannot disdain, neither can he pre-judge his client’s case. Dr Johnson said: “A lawyer has no business with the justice or injustice of the cause which he undertakes unless his client asks his opinion, and then he is bound to give it honestly. The justice or injustice of a cause is to be decided by the judge.”
So does the barrister then, in accepting a brief, become monocular, or may he have a broader vision? Henry Brougham, to justify his controversial defence of Queen Caroline, proclaimed: “An advocate, by the sacred duty which he owes his client, knows, in the discharge of that office, but one person in the client and none other. He must go on, reckless of the consequences, even if his fate it should unhappily be to involve his country in confusion for his client’s protection.” By contract, Lord MacMillan, a Law Lord, commented extracurially, “In the discharge of his office, the advocate has a duty to his client, a duty to his opponent, a duty to the court, a duty to the state and a duty to himself. To maintain a perfect poise amidst these various and sometimes conflicting claims is no easy feat.”
Amongst that quintet of perceived obligations, only a pair may command general agreement, the duty to the court and the duty of the client, the former wrongly omitted from Brougham’s catalogue of one. As is recorded in the Gospel according to St Matthew, “No man may serve two masters,” but a barrister must. He owes, as Lord Hoffmann put it, “a divided loyalty”, for the duty to the client is subordinate to the advocate’s principal duty. Lord Denning gave a classic enunciation of that duty’s pith and purpose. He said of the barrister, “He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants, or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause; it is the cause of truth and justice.”
The practical effects of this duty, now enshrined in statute, are many, and illuminated by a wealth of judicial dicta. An advocate may not deceive or knowingly mislead the court nor allow the judge to take what he knows to be a bad point in his client’s favour. He must bring to the attention of the court all relevant decisions and legislative provisions of which he is aware, even those that are adverse to his argument. He must conduct the proceedings economically and not waste time on irrelevancies, even if the client thinks they’re important, notwithstanding, as Chief Justice of Australia, Anthony Mason, graphically described, “The client may wish to chase every rabbit down every burrow.” Still less may he take false points, however much his client may insist he should do so. He must help the court to further the overriding objective of the Civil Procedure Rules, he must not set his name to a plea which he does not consider to be properly arguable, he must not unjustly make a charge of fraud without evidence to support it, he must see that his client discloses relevant documents, even those that may be fatal to his case.”
These principles apply to barristers in criminal as well as in civil proceedings. Prosecuting counsel play an important public role in the promotion of a open and fair criminal justice system, so the Bar Council prescribes prosecuting counsel should not attempt to obtain a conviction by all means at its command. Although Mervyn Griffith-Jones qualified this by warning Middle Temple students in 1973, “Don’t act as second defending counsel, as some young men seem to think they should do in order to be fair.” When 12 years earlier, prosecuting Penguin Books, the publishers of Lady Chatterley’s Lover, as Crown Counsel, he lost the jury’s sympathy in his opening speech by asking them whether it was a book that a jury man would like his wife or his servants – I stress the plural – to read, he was, presumably, not anticipating his own later advice.
While the defence lawyer’s role in criminal proceedings essentially partisan, he is still required to place the interests of justice first. If his client confesses his guilt prior to trial, he is limited to testing the strength of the prosecution case; he must not set up an affirmative case inconsistent with that confession nor call evidence in support of an alibi or otherwise which he knows to be untrue. Subject to that proviso, as again the Bar Council prescribes, it is a duty of counsel when defending an accused on a criminal charge to present to the court fearlessly and without regard to his personal interest. Counsel may be partially consoled by the obiter dictum of Lord Justice James in Crown v McFadden, “Forensic techniques may vary from time to time but it is still possible to point to success at the Bar based upon a reputation for courage in standing up to a judge when occasion demands.”
It is, however, worth pausing for a moment to reflect upon the significance of this unusual constraint and to imagine its impact if it were transposed, the mutatis mutandis as we were once permitted but no longer to say in submission to court, to other arenas. We are a mere fortnight away from a general election in which politicians appeal to the verdict of the people, who gave, what might reasonably be described as a reserved judgment, indeed a split decision. During the campaign, and I make no partisan point, there was a wealth of examples in the language of old-fashioned pleading too numerous to specify of suppressio veri, economy with the truth, if not of suggestio falsi.
Imagine for a moment how the democratic process would be transformed and improved if politicians were under a duty not to deform statistics or to make full and frank disclosure of material, say, relating to the national debt. Imagine for a moment if cricketers walked, footballers refrained from diving, rugby players from committing that contradiction in terms, the professional foul, or team managers in any game from berating match officials, how that too would purify the culture of sport. That barristers operate in this unusual way is not a testament, of course, to their inherent morality. They are cut from the same crooked timber of humanity as all of us, but as with the cab rank rule, the duty to the court, the second pillar of the Bar’s wisdom, is something rare and precious to be preserved and protected.
In my view, the duty to the court, deeply embedded in the English common law tradition, no more acts as an undesirable restraint on the barrister’s freedom of action than do the Queensberry rules on professional pugilists. Indeed, as the same Chief Justice of Australia said, “It fortifies him in the exercise of an independent discretion or judgment in the conduct and management of a case.”
How far then should the barrister himself fortify these structures of independence? Should a barrister be a cause lawyer or a case lawyer? Autobiographies with titles such “Memoirs of a Radical Advocate” or even “The Passionate Advocate,” more intriguing perhaps even than, “Seventy-two Years at the Bar”, are recent accounts of the careers of advocates who, without violating the cab rank rule, wear on their sleeve not only their hearts but their minds.
Why do I prefer an alternative style, in which the barrister’s views are as private as his vote, even accepting the price to be paid in erosion of civic commitment and even of moral sensibility? There are two reasons. One is actuality and the other is appearance. The function of the advocate is to give advice and then conduct a case with detachment, his only passion being for success on behalf of his client. Ideological or emotional involvement in an outcome seems to me to risk infection of analysis and presentation. I am very conscious that when I am on the side of the case I prefer, I have to guard against an excess of the adrenalin, not an exogenous prohibited substance, which is essential to the most effective advocacy.
In 1976 I appeared in an unsuccessful effort, to preserve St Marylebone Grammar School, the last of its kind in London. Lord Denning, in one of his most elegiac passages, was able to indicate how he would have wished to decide the case. “Many will grieve,” he said, “when that which was great is passed away, but so it must be.” I grieve too, but necessarily in silence. More recently, I fear that my scepticism about the Strasbourg inspired rule that the United Kingdom cannot deport individuals proven to be a threat to its national security to their country of origin because of concerns about the risk of the treatment they would there receive, may, despite my best endeavours, have percolated into my submissions before the House of Lords. Lord Hope felt constrained to address full frontally the argument, “Surely, the sooner they are got rid of, the better. On their own heads be it If their extremist views expose them to the risk of ill-treatment when they got home,” and administered what Touchstone called, the “Reproof Valiant”. That, however, is not the way the rule of law works. The lesson of history is that by depriving people of its protection because of their beliefs and behaviour, however obnoxious, leads to the disintegration of society.
Clients, be they prisoners, parents or public authorities, may welcome the barrister’s sympathy as well as his skill, but they are best served if they enjoy, without any sacrifice of courtesy on the barrister’s part, only the latter. The case he advances, after all, is his client’s, not his own. That is why the advocate formally abstains from any expression of belief and deploys the neutral concept of submission. But how he advances the case must be the product of his own best dispassionate judgment. Alistair Campbell, in his diaries, records of Jonathan Sumption, briefed in the Hutton inquiry, “It was absolutely clear that he was not taking something out of the diaries just because the Prime Minister would do,” and concluded, “What I admired about Sumption most was that he didn’t seem to care what the press or public were thinking about this, he was totally focused on the judge.” In circumstance of far less gravity, I once had, myself, to tell my instructing solicitor that my client could promote his case with Max Clifford or with Michael Beloff, but not with both. And after, in Wednesbury term, taking all material consideration into account, the barrister must, as Frank Sinatra would have recommended, “do it his way”.
It is, of course, difficult for emotions to become engaged in a question of construction of an arcane provision of the Hague-Visby Rules or even of the obscure out of boundaries [though?] volatile law of negligence, but it is the development of public law and its supplanting private law, as the most important element in appellate adjudication and the concurrent migration of political issues and legislative reports which expose the advocate more readily to the temptations of partisanship and, more importantly, to the perception of it.
In his foreword to a leading commentary on Human Rights practice, Lord Phillips, previous holder of the triple crown of Master of the Rolls, Lord Chief Justice and Senior Law Lord, and who has now, to mix the sporting metaphor, achieved the grand slam by becoming the first President of the Supreme Court, reminisced, “When I practised at the Bar, the staple diet of the House of Lords consisted of civil law and tax appeals; judicial review was in its infancy. How things have things have changed. Baroness Hale and we, her colleagues, devote the majority of our energies to public law.” In this new environment, I am particularly uncomfortable with the too ready association of the barrister with his client’s case. In the highly sensitive and increasingly complex field of immigration law, in which in my far off days as junior, I used regularly to practice, I noted the significant attachment of clients to lawyers of their own ethnic background, not always to the advantage of their claim, sometimes because their chosen champion had inadequate command of the language in which the court had to be addressed.
I am uncomfortable too with the converse position, when women advocates are instructed to defend men on trial for rape, not on account of their forensic abilities, but on the crude calculation that jurors would be beguiled into thinking that no woman could defend someone who had committed an act of violence against a member of her own sex. I do not believe that barristers of known left wing sympathies are necessarily best placed to defend striking trade unionists or those of publicised Europhobic tendencies to represent UKIP. A barrister who can appear at different times for the BNP and the Socialist Workers’ League is not the forensic equivalent of a Vicar of Bray, but an inherent and a true professional [inaudible]. It is especially unwise to adopt a mindset that virtue can only repose on the claimant’s side. It is not only the advocates for claimants, but those for respondents too, who are responsible for assisting in the construction of clarification of the law. Barristers, after all, do not make law, they supply from either side of the court, the material from which the judges can fulfil their own distinctive role.
In an essay entitled “Early Days” Lord Justice Sedley reminisces about his triumphs and disasters as a novice barrister, present at the creation of modern judicial review. It is an exhilarating and entertaining account of his role in seminal cases involving gypsies, low income tenants, immigrants and prisoners. In some of those I was myself involved, in the self same case about control units, the product of a Home Office philosophy which was tough on crime, if not necessarily on its cause, being led by Stephen at first instance and leading him in the course of appeal, the result of an idiosyncratic silk selection by the then Lord Chancellor, Lord Hailsham.
It never occurred to me that I was or could [inaudible] on advancing some radical political agenda. I was simply doing my daily job. Lesser advocates than Stephen can, if they always appear on the same side of the argument, cause confusion in the minds of those who try the case, between the client and his advocate to the detriment of the former. It is surely axiomatic that a barrister’s arguments, whether mediated through advice or advocacy, would be given greater weight and respect if he is recognised by any test to be truly independent.
The recent case of McFarlane v Relate Avon Limited provides a much publicised example of what I have in mind. A psycho-sexual therapist failed in his claim for religious discrimination against his employers who refused to exempt him from providing his services to same sex couples. He was supported by Lord Carey, the former Archbishop of Canterbury who in a witness statement invited the Lord Chief Justice to establish a panel of judges designated to hear cases involving religious rights. The appellant’s advocate has a unique expertise in such cases but, as his website and record showed, he is, as well, a crusader for evangelical religious values. A counsel not only more detached, but seen to be more detached, from the principle he was contending for, that of allowing religious belief to qualify in some way the [inaudible] of anti-discrimination law, might have adopted a more nuanced approach which eschewed the gratuitous and doomed plea for a specialist non-secular court trenchantly dismissed by Lord Justice Laws as deeply inimical to the public interest. Those who cannot appreciate that there may be two sides to a question are not best placed to argue in favour of one.
Criminal law is not immune to this problem. Members of the Crown Prosecution Service, originally created so as to separate the functions of police and prosecutor, have started to colonise frontline advocacy with the consequent risk that, as employees of a public authority, they will become prosecution minded and seen to be so. The era is long since gone when it was possible to combine at one and the same time a fulltime practice at the Bar with an active political career, but F E Smith, a paradigm example of someone who a century ago was able to do both, understood well the matters at stake. When criticised by his fellow conservatives for representing the liberal Herbert Samuel in the Marconi trial, he wrote to The Times, “Political issues constantly present themselves in the decisions of the Law Courts. In the overwhelming majority of cases, juries have done their duty indifferently between the parties, treating their own views upon politics as immaterial. How long do you think this stage of things will endure if every conservative case is to be presented by conservative advocates and resisted by liberal advocates?”
The law officers face peculiar challenges. The then Attorney General was recalled to the Bar Council for investigation [that his?] advice to the government on the legality of the invasion of Iraq misjudged the distinction between his legal and political roles. That body, in receipt as it turned out of opinions by both Sir David and myself provided in isolation from each other, rejected jurisdiction, leaving Lord Goldsmith to the no doubt tenderer mercies of the Chilcot Inquiry.
It seems to me inevitable that the role of the Attorney General would have to be deconstructed, like that of the Lord Chancellor, and for analogous if not identical reasons of disentangling roles seen to be in tension. Wearing two hats is no less difficult than wearing three, but a single item of head gear is more becoming.
There are institutional as well as ideological pressures on the independence of the Bar. Sir Gavin Lightman, in a much discussed lecture, “The Civil Justice System and Legal Professional Challenges Ahead”, somewhat like a former cabinet minister freed from the burdens of collective responsibility, rediscovered the path of true principle for the profession he had left a decade before. He excoriated the metamorphosis of the legal professions into legal businesses and the consequent impact on the internal organisation of the Bar. “The dominant philosophy today amongst many chambers”, he wrote, “is to place the highest premium on keeping all available work for clients in house. Indeed chambers have increasingly become, in all but name, partnerships between members committed to the pursuance of the best interests of members.”
There is, if not a ring, at least a tinkle of truth in what he says, but what is certain is that the perception of the Bar from outside has altered. A decade ago an issue arose whether a barrister who had been appointed an arbitrator by one party to the arbitration should be removed by the court on the ground that another barrister from the same chambers had been instructed in the arbitration. Mr Justice Rix, as he then was, in rejecting the application, emphasised the uniqueness of the Bar’s organisation and the fact it provided a structure of protection both for the interests of the client and the interests of justice. “It is the essence of practice at the Bar”, he wrote, “that all barristers are self-employed. This is not a mere matter of form.” But several years later an IC SID Tribunal, considering the converse situation – that is whether a QC could any longer act as counsel in a case where a member of the tribunal was in the same set – decided that what Mr Justice Rix had seen as a matter of substance was or would be seen as a matter of mere form. Accepting that de jure barristers in the set of chambers were independent of each other, the tribunal ruled that they would be seen de facto as having a collective connotation. The warning flags are fluttering elsewhere. The Court of Arbitration for Sport, whose adjectival law is substantially Swiss, regard in the words of its Secretary General the notion of a member of a set of chambers acting as arbitrator when a party is represented by a member of the same set as problematic, though I have never, in all my time at the Bar, expected, still less received, favours from judges whom I know well.
The problem will be exacerbated. Barristers exploit the permission duly given to work in partnerships, or in both self-employed and employed capacity at the same time, or to become managers in and hold shares in legal disciplinary practices, and the more so if they participate in the alternative business structures contemplated by the same legislation which would allow them to work alongside other legal professionals and non-lawyers, a development optimistically described by Lord Faulkner, as the legal system’s Tesco.
The influence of outside ownership, the promotion of profit over professional standards, the commodification of legal issues, all threats inherent in these putative entities, may yet cause us to mourn the eclipse at one and the same time the neighbourhood corner shop and of Harrods.
Similar concerns are generated by the serious commercial pressures on substantial sections of the Bar. Within what the Chairman of the Bar has recently called an increasingly broad church, there are in fact many Bars. Those who depend upon public funds, in particular in the areas of criminal and family law, suffer, if not death, at least damage by a thousand cuts; freeze has been followed by fall. Judicial review of the latest pre-election government decision was briefly on the agenda. The outgoing Minister for Justice retorted by identifying, with less than complete accuracy, the top legal aid earners for the last year, as if the income of a few was characteristic of the income of the many. The hourly earnings of the majority were in a counter-attack described by the Chairman of the Criminal Bar Association as less than those of a garage mechanic. This led, predictably, to an amusing, if unedifying, correspondence in the letter columns of The Times, as to which provided the more valuable social service.
The real victims of course will be the most vulnerable members of society who are not, I hasten to add, the barristers themselves, to whom the barristers, distracted by a wish, in no way dishonourable, to receive a reasonable income for demanding work, will be increasingly inhibited in their ability to provide proper representation and may even be compelled to avail themselves of the exit route permitted by the cab rank rule itself. A palliative of conditional fee agreements, shifting the burden of financing and many types of litigation from State to persons, natural or legal, and now available in all except criminal and specified family proceedings, confers on barristers, as Sir Gavin Lightman pointed out, a financial interest in the outcome of litigation in which they are engaged which is calculated to create unacceptable conflicts of interest and duty and creates unacceptable pressures to win.
In this uncertain financial climate, Baroness Deech, the Chairman of the Bar Standards Court, has said: “We have to negotiate a path between the Scylla of fusion and the Charybdis of attrition of the Bar.” In identifying the perils on that path, I have sought tonight to make a summary case for the survival of a professional, independent in mind, spirit and appearance and a member of a profession itself independent, though not unaccountable, capable when called upon of defending individual rights against the power of the ever burgeoning State and its sundry satrapies, but equally of representing the State when it seeks to enforce the public interest against those who act in a way inimical to it.
In a surface sense, everything has changed. In a subterranean one, nothing has or should. The environment in which the Bar operates at any one time may be ephemeral but its values must be eternal. In his book, “The End of Lawyers”, Richard Susskind explains, albeit in a footnote, “I reiterate the question mark in the title is intended to confer that this book is an enquiry into whether lawyers have a future, rather than a prediction of their demise”, and equally mercifully, while prophesying that lawyers who are unwilling to change their working practices and extend their range of services will in the coming decade struggle to survive, adds, “Dispute avoidance and online dispute resolution will chip away at some of this domain but I do not seize these as eliminating advocacy entirely.”
So I end by considering the moral issue created by the art of advocacy itself. A recent consultation paper by the trio of legal regulators described advocacy as a fundamental pillar of the justice system, as certainly it is, viewed from a national perspective. Lord Hoffmann noted in a judgment: “The substantial orality of the English system of trial and appellate procedure means that judges rely heavily upon the advocates appearing before them for a fair presentation of facts and adequate instruction of the law. This regard is axiomatic that the service of a professional advocate are beneficial, whether of Cicero, the hero of Robert Harris’s projected trilogy, a William Murray, later Lord Mansfield, whom Alexander Pope hymned “graced as thou art with all the power of words, so known, so honoured in the House of Lords”, a couplet which might have required modification had the Supreme Court been established 300 years ago, and which was parodied by the actor, Colley Cibber, a victim of Murray’s eloquence, in a style worthy of William McGonagall, “Persuasion tips his tongue when e’er he talks and he has chambers in the King’s Bench Walks.” Or of Clarence Darrow, who in the Scopes trial proved a more doughty destroyer of creationism than even Richard Dawkins and was memorably played by Spencer Tracy in the film, Inherit the Wind, or of modern giants, such as Sir Sydney Kentridge or the late George Carman.
There is much nice learning on when and whether natural justice requires that barristers’ use be permitted or required. Indeed, the principle of equality of arms, inherent in the right to a fair hearing, is guaranteed by Article 6 of the European Convention and requires that everyone who is a party to proceedings must have a reasonable opportunity of presenting his case to the court under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent. But equality of arms does not mandate parity of representation. It has been held that a fair trial does not necessarily entail representation by a QC, merely because the Crown is represented by one. The importance, said Lord Wolff in his judgment, is to have an advocate, whether he be a barrister or solicitor, who can ensure that a defendant’s defence is properly and adequately placed before the court.
Well, up to a point, Lord Wolff, for there are but two possibilities: either the relative quality of representation has no impact upon the outcome, or it does. The first possibility is at odds with every day experience in the courts. In another context, Mr Justice McGarry wisely said, “Everybody who has had anything to do with the law well knows that the path of the law is strewn with examples of open and shut cases which somehow were not.” It is precisely to alter the odds that particular advocates are selected. A senior silk at the top of his game is worth as much to a legal as Rooney, a Renaldo or a Messi is to a football team.
Let me call two witnesses from north and south of the equator. First again, Sir Gavin Lightman, who said: “The quality of solicitors and counsel varies as does the quality of wine, from unfit to drink to vintage. Vintage tends to be very expensive, beyond the means of the ordinary litigant and most must be satisfied with plonk. Cases are won and lost by reason of the quality of the representation at the trial.”
Secondly, Michael Kirby, the peripatetic former Antipodean High Court judge, who wrote in a recent article, “In an adversarial system such as exists in the United Kingdom, and Australia, the party that argues most persuasively will often win the day. It is not always the case that he who pays wins but it is certainly the case that whereas all barristers are equal, some are more equal than others.”
Geoffrey Robertson entitled his interim autobiography, “The Justice Game”. Contests between unevenly matched contestants may be permissible in a game, but not when justice is the intended trophy. It will be little consolation to the clients of Jerry Guerinot, twenty of whose clients have been sentenced to death in Texas, that the Federal Court in Houston, turning down an appeal based on his incompetence in handling of a case, said, without conscious irony, “The constitution does not require perfection in trial representation.”
There may be a hollow in the crown of the adversarial system, but how it is to be filled in the real as distinct from the ideal world, I confess I do not know. But let me not conclude on so dispiriting a note. In Medcalf v Mardell, Lord Hobhouse said, “The judicial system exists to administer justice and it is integral to such a system that it provides within a society a means by which rights, obligations and liabilities can be recognised and given effect to in accordance with the law, and disputes justly and efficiently resolved. The role of the independent advocate is central to achieving this outcome. So in a lecture which has inevitably been decked out in borrowed plumes, I hope I may be forgiven for plagiarising myself with a tail feather: “They also serve who only stand and speak.”
David Ibbetson:
It is probably appropriate to thank the speaker rather than letting him move to the wine. When David Williams had to choose the speaker for this lecture, knowing that he was not going to be here, he had one of the most difficult tasks, I suspect, of his life, to find someone who could follow on from four Chief Justices, following the footsteps, finally, of the Chief Justice of the Supreme Court. It was an almost impossible task. I think we would disagree that he had chosen a veteran jobbing attorney, as our speaker described himself tonight. Rather more accurately, as our Chair described him, someone who is a sheer joy to listen to. As well, it was someone who would say things that David himself would have said had he still been with us, that absolutely central to the justice system is the position of the independent and robustly so Bench and Bar. Those of us who are not that actively involved in the practice of the legal system but take a very active interest in it from the sidelines, know that over the last few years, it is that independence of Bench and Bar which has actually protected the civil liberties of the rest of us. I think our speaker tonight has quite rightly drawn attention to it.
It is something which a Cambridge man of some centuries ago, Mr Cook of the larger Trinity in Oxbridge would have been proud. As Chief Justice, he stood up against King James. It is something of which one of my own heroes, and David’s heroes too, a Welshman, Sir William Jones, a friend of Erskine, friend of Mansfield, a friend of Granville Sharp, and indeed of others who have peppered the lecture this evening, Sir William Jones would have gone along with it. Sir William Jones, who is a hero of mine, had another side to his character which I know that David approved of. It was his love of conviviality and the like. He was also a poet, something else which David approved of, and I just want to end with one line, as we thank you, indeed picking up on your final remarks, a line from one of Jones’ poems written in the 1780s: “Leave year books and parchments to grey bearded sages”, he said – that is not a direct comment – “Leave year books and parchments to grey bearded sages in pursuit of some more convivial activity.”
Mr Beloff, thank you very much indeed for gracing us with your presence tonight. Thank you for all of us, and I think this comes from the heart of everybody from within Cambridge, everybody who is a friend of David’s, thank you for being so true to David’s memory.
