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Bar Conference Saturday 2 November 2013
Keynote Address
- Lord Pannick QC1
In 1972, during oral argument in the United States Supreme Court,
counsel was asked by one of the judges why his written argument was
so inadequate. Why had he ignored all of the leading cases? "Your
Honor must realise", counsel replied, "I am a very busy man".2 All
of you barristers attending this Bar Conference today are very busy
men and women. But it is, I think, appropriate before you go about
the main business of this event to pause for a few minutes so we can
remind the Government, the public, and indeed ourselves, of the value
of what we do, its important contribution to the rule of law, and
the need to resist Government proposals which will limit its
effective exercise. We need to do what we do best: set out the strength
of the arguments and persuade the court of public opinion.
1
Barrister at Blackstone Chambers in the Temple, Fellow
of All Souls College, Oxford, and crossbench peer in the
House of Lords
2
See Floyd Abrams, "Speech to the Graduating Class,
University of Michigan Law School" (13 May 1990),
referring to the response by the assistant prosecutor from
Louisville, Kentucky to a question from Justice Douglas
in Branzburg v Hayes 408 US 665 (1972) (US Supreme Court).
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As we barristers know, advocacy has a simple but crucial
purpose. The law is best administered by independent judges who hear
argument on both sides of a case before they make up their mind. That
may not always appeal to busy politicians, blessed with the gift of
knowing the answers to complex problems. But the advocate exemplifies
the valuable principle that there is always another point of view,
a different perspective, an alternative explanation, of which
account should be taken before judgment is delivered. As Lord Judge
recently said in one of the last cases he heard as Lord Chief Justice,
the administration of justice depends on "the presence, assistance
and professionalism of high quality advocates on both sides".3
The danger with us advocates is that a professional lifetime
of speaking up for others may result in an ability to argue any case
on either side but a reluctance to express a strong opinion of our
own. According to his biographer, Sir Edward Marshall Hall, one of
the great advocates of the early 20th century, "was without settled
convictions on any subject" 4 Yet our experience as advocates
particularly qualifies us to speak out and express our own views on
threats to the quality of our legal system.
3
R v Farooqi [2013] EWCA Crim 1649, paragraph 109.
4
Edward Marjoribanks The Life of Sir Edward Marshall Hall
(1929), p.58. Similarly, John Mortimer's Horace Rumpole
reflects that he "had spent my whole life being other
people, safe blowers, fraudsmen, a few rather gentle
murderers. I'd had remarkably little time to be Rumpole":
John Mortimer "Rumpole and the learned friends" in The
First Rumpole Omnibus (1983), p.167. See also Philip
Ziegler Olivier (2013) at p.190: "Scratch an actor and
you find an actor, [Laurence] Olivier was accustomed to
remark".
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In setting out my concern that this Government does not
understand or appreciate the importance of advocacy to the rule of
law, I emphasise that similar criticisms could no doubt have been
made of many previous Governments, and will no doubt be made of future
Governments, whatever their political complexion. But this is the
Government we have, so its policies and conduct are the subject of
concern today.
I want to focus on three examples of why I am concerned. The
first is the Secretary of State for Justice's proposals to reduce
fees for criminal legal aid. I do not want to address the detail of
those proposals. There will be ample opportunity to do so during this
Conference. My point is more fundamental. I want the Justice
Secretary, Chris Grayling, to acknowledge that the work of lawyers
on criminal legal aid is demanding, that it makes an essential
contribution to the administration of justice, defending the
innocent and validating the conviction of the guilty, and that it
is already poorly paid. I want him to tell his Cabinet colleagues
that this country is a world leader in legal services, with something
like 7% of the global market, that his predecessor as Justice
Secretary, Ken Clarke, was correct last year to describe the United
Kingdom as "the lawyer of the world"5, and that the reason why clients
from around the world use our legal services (whether to litigate
in this country or to instruct our lawyers for cases abroad) is because
of the quality of our lawyers and judges. I want the Secretary of
5
Financial Times 6 May 2012.
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State to recognise that junior barristers struggling to earn a living
in magistrates courts and Crown Courts this week are the senior
prosecutors and judges of the future. I want him to understand that
if the Government seeks to administer our legal system on the cheapest
basis possible, it will inevitably dilute and pollute its quality
for the future.
The Justice Secretary regularly produces, as he did just before
the first round of consultation on the legal aid proposals which ended
in June, tables of high-earning legal aid solicitors and barristers.
He supplies them to journalists knowing that they will result in
headlines about "legal aid jackpots" and the "legal aid gravy train".
However politically convenient it may be, the Justice Secretary
should not be promoting the absurd myth that legal aid work is a
pathway to riches, or that a few examples of large fees (particularly
when earned over long periods) tell the public anything about the
pay of the typical legal aid barrister. A Justice Secretary who
understands the importance of advocacy would not be assisting in the
peddling of the lazy fiction that seeks to demonise legal aid lawyers
as "cashing in", as The Sun headline put it.
My second example of this Government's lack of appreciation
of the value of advocacy is the recently enacted Justice and Security
Act which allows for closed hearings in civil claims where evidence
is sensitive in national security terms. Claimants and their lawyers
are excluded from such closed hearings. During the Parliamentary
debates, Ministers refused to address the central point that a closed
hearing is fundamentally unfair because it prevents effective
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advocacy on behalf of the client. It is fundamentally unfair because
the judge will be deciding the case by relying on evidence which one
side has had no opportunity to challenge. As Lord Kerr of Tonaghmore
said in the Supreme Court in 2011 in the Al-Rawi case, "evidence which
has been insulated from challenge may positively mislead".6 It is
the role of the advocate to challenge the evidence.
My third example is that in a consultation which closed
yesterday7, Mr Grayling is proposing that the rules of standing for
judicial review should be restricted so that claims could only be
brought by persons with a direct interest and not by public interest
groups such as NGOs, charities and pressure groups.
Any attempt by Government itself, the defendant in so many of
these cases, to restrict the efficacy of judicial review must be very
carefully scrutinised to ensure that the changes are being proposed
in the public interest and not in the interest of Ministers and their
supporters. The Consultation Paper shows that Mr Grayling does not
understand, or appreciate, the importance of judicial review
advocacy as a check on abuse of the power of public bodies, and an
important inducement to them to adopt higher standards of legality,
fairness and proportionality.
The Justice Secretary wrote an article on this subject in The
Daily Mail on 6 September 2013. The title accurately summarised his
views: "Left-Wing Lobby that holds the UK back". Mr Grayling
6
Al-Rawi v Security Service [2012] 1 AC 531, paragraph 93.
7
Judicial Review: Proposals for Further Reform (September
2013).
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complained about a pending judicial review brought by the Plantagenet
Alliance, a campaigning group which objects to the burial of the bones
of Richard III in Leicester, where his body was recently found beneath
a council car park. In August, Mr Justice Haddon-Cave gave permission
for a judicial review application to be brought against the Justice
Secretary and the University of Leicester as it was, in the judge's
opinion, "clearly arguable" that there had been a failure adequately
to consult interested persons. The Daily Telegraph reported in
September that Mr Grayling was very frustrated by this case. "A source
close to" Mr Grayling (we all know what means) commented that "the
Justice Secretary thinks it is ludicrous that judicial reviews are
used for cases such as this. This is not what judicial reviews were
intended for and is a complete waste of taxpayers' money".8
I have no idea whether the Richard III judicial review will
succeed. But I do know that Mr Grayling needs a lesson on the
separation of powers. The days are long gone when Lord Chancellors
sat in judgment on legal claims, particularly a claim to which he
is the defendant. I would prefer to rely on the judgment of Mr Justice
Haddon-Cave, or any other judge, for a ruling on "what judicial
reviews were intended for". Mr Grayling would be well advised to let
the lawyers argue their case and let the judges decide and then he
can make an informed comment.
In his Daily Mail article on judicial review 9 , the Justice
8
The Daily Telegraph 18 September 2013. See also similar
comments in The Times 16 August 2013.
9
6 September 2013.
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Secretary warmed to his theme. The "professional campaigners of
Britain" are, he said, "hiring teams of lawyers" who had turned
judicial review into "a lucrative industry". Judicial review has
become, he said, "a promotional tool for countless Left-wing
campaigners. So that is why we are publishing our proposals for
change". And that is why those of us who value judicial review as
an essential protection of the rule of law are resisting the
proposals: because they are based on partisan and ill-informed
slogans.
The Consultation Paper issued by the Ministry of Justice itself
recognises 10 that the judicial review claims lodged by interest
groups "tended to be relatively successful compared to other JR
cases". So the Justice Secretary is complaining about cases in which
advocacy in court has exposed unlawful conduct by public bodies. The
Consultation Paper gave two examples11 of cases which have caused
the Government concern. The first is the judicial review brought in
1994 (the antiquity of the case is itself revealing) by the World
Development Movement complaining about the grant of overseas aid to
the Government of Malaysia for the Pergau Dam project. 12 The
Consultation Paper does not mention that Nigel Pleming QC and Owen
Davies, acting for the World Development Movement, persuaded the
Divisional Court to grant a declaration that the overseas aid was
10
Paragraph 78.
11
Paragraphs 75-76.
12
R v Secretary of State for Foreign and Commonwealth Affairs
ex parte World Development Movement Ltd [1995] 1 WLR 386.
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unlawful as it was outside the scope of the relevant authorising
legislation. The point, surely, is that whether or not the case was
brought by "left-wing campaigners", the case exposed a breach of the
law by the Government. If the rules of standing had been tighter,
the illegality would not have been remedied.
The other example given by the Government in the Consultation
Paper is the more recent case, decided in 2010, brought by the peace
campaigner Maya Evans. Her judicial review application, as presented
in court by Michael Fordham QC, Tom Hickman and Rachel Logan,
instructed by Public Interest Lawyers, challenged the practice of
the Secretary of State for Defence of transferring to the Afghan
authorities suspected insurgents who had been detained by the United
Kingdom armed forces in Afghanistan. Ms Evans' concern was that the
insurgents were at a real risk of being tortured or subjected to other
serious mistreatment. Again, the Consultation Paper ignores what
happened in court. Lord Justice Richards, giving judgment for the
Divisional Court, concluded that transfers to the Afghan facility
in Kabul should not occur because of a real risk of torture or serious
mistreatment, and transfers to other facilities were permissible
only if safeguards were strengthened13
It is unrealistic to think that anyone with a direct interest
could in practice have brought that judicial review claim. And so
Mr Grayling's proposal comes to this: that an important aspect of
13
R (Maya Evans) v Secretary of State for Defence [2010]
EWHC 1445 (Admin), paragraph 320. Lord Justice Richards
said at paragraph 287 that the court had "found this a
troubling and difficult case".
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government policy, with serous adverse consequences for individuals,
should be immune from challenge by advocates, however well-founded
the claim of illegality may be. To suggest that Michael Fordham QC
and the other counsel who represented Ms Evans were doing so as part
of "a lucrative industry" would be an insult were it not so laughably
absurd. If, as Shakespeare suggested in Romeo and Juliet, lawyers
"straight dream on fees"14, they would not have taken on Ms Evans'
case.
But the main answer to Mr Grayling's proposal does not depend
on whether the claimants succeed in the judicial review claims which
cause him concern. The question is whether claimants should be
prevented from instructing advocates to argue the case and obtain
a judicial decision. Lord Diplock made the point in 1981 in
considering
a
claim
brought
by
the
National
Federation
of
Self-Employed and Small Businesses Ltd15. It would, he said,
"be a grave lacuna in our system of public law if a pressure
group like the federation, or even a single public-spirited
taxpayer, were prevented by outdated technical rules of locus
standi from bringing the matter to the attention of the court
to vindicate the rule of law and get the unlawful conduct
stopped".
For similar reasons, Aharon Barak, the distinguished former
14
Act 1, Scene 4, line 75.
15
R v Inland Revenue Commissioners ex parte National
Federation of Self-Employed and Small Businesses Ltd
[1982] AC 617, 644.
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President of the Supreme Court of Israel, stated that restrictive
rules of standing in public law create "black holes" in which a public
body is free to violate the law without legal restraint. So public
interest groups, and concerned citizens, have standing in public law
claims because of their membership of a society that values the rule
of law.16
In this country, important public law claims have been brought
by bodies such as the National Federation of Self-Employed and Small
Businesses Ltd
17
, the ProLife Alliance
18
and the Countryside
Alliance19, organisations which even Chris Grayling would find it
difficult to describe as "Left-wing campaigners".
The Consultation Paper states that Mr Grayling's "concern is
based on the principle that Parliament and the elected Government
are best placed to determine what is in the public interest".20 But
it is judges, assisted by advocates, who are best placed to determine
what is unlawful.
Robert Jackson wrote that as Solicitor General of the United
States, lead Government counsel, in the 1930s he made three arguments
in every case : firstly, the one he planned ("logical, coherent,
16
Aharon Barak The Judge in a Democracy (2006), pp.194-196.
17
R v Inland Revenue Commissioners ex parte National
Federation of Self-Employed and Small Businesses Ltd
[1982] AC 617.
18
R (ProLife Alliance) v BBC [2004] 1 AC 185.
19
R (Countryside Alliance) v Attorney General [2008] AC 719.
20
Paragraph 80.
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complete"), secondly the one he actually presented ("incoherent,
disjointed, disappointing"), and thirdly "the utterly devastating
argument that I thought of after going to bed that night".21
Whichever of the three arguments we barristers present, I hope
the message is persuasive: the Government's approach to criminal
legal aid, closed hearings and judicial review claims suggests that
it neither understands nor appreciates the role of advocacy in
helping to maintain the rule of law. The policies of this Government
are damaging the reputation which this country rightly enjoys
throughout the world for the quality of its legal system. It is our
task as advocates to present that case as clearly as we can, not in
our interest, but in the public interest.
21
Robert H. Jackson : "Advocacy Before the Supreme Court
: Suggestions for Effective Presentation" 37 American Bar
Association Journal 862 (1951), cited in Oxford
Dictionary of American Legal Quotations (ed. Fred R.
Shapiro, 1993), p.11.
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