Thursday, 17 July 2014

Judge a man by his actions not his website - Reflection on the Attorney General

Of many of the appointments made in the Cabinet Reshuffle this week two of the least publicised and celebrated have been those of the new Attorney General and the new Solicitor General.  Dominic Grieve QC MP (58), who was Attorney General, was called by Middle Temple in 1980 and specialises in health & safety law, he became a Bencher in 2005 and a Silk in 2008 when shadow Attorney General.  He was elected in Beaconsfield in 1997.  Oliver Heald QC MP (59), who was Solicitor General, was called by Middle Temple in 1977 and practised at the Bar from 1979 until 1995 when he became a minister.  He was elected in North Hertfordshire in 1992.  They were sacked on Tuesday, apparently without much warning, as it would seem they were due to attend a press briefing later that day.

Replacing them are Jeremy Wright QC MP (41) who was called in 1996 and specialised in criminal law until 2005 when elected to his seat in Rugby and Robert Buckland MP (45) who was called in 1991 practised in crime, is a Crown Court Recorder and was elected to Swindon South in 2010.  Much has been made from legal commentators and practising barristers in the hours that followed their appointment of their comparative obscurity.  Some of the commentary has been sneering and scornful; the wisdom of publicising that scorn is perhaps worth reflecting on.  The principle anxiety that has been articulated is that the Prime Minister has deliberately appointed two very young and comparatively inexperienced Law Officers for their pliability particularly in regard to undefined and as yet unannounced Government plans to renegotiate Britain’s membership of or submission to the European Court of Human Rights.

It has been reported that Dominic Grieve and others  counselled the Prime Minister about embarking on such a course.  If this is indeed the intention I will add my voice to the swiftly swelling ranks of those who are illuminating and delineating some obvious perils that lie ahead.  Obvious to lawyers it is perhaps not so clear to politicians that if you as an individual, entity or country submit to the jurisdiction of a court then you agree to submit to its rulings.  That, of course, pertains whether the court rules in your favour or against you.

If as a country you choose that you no longer wish to submit to a supra-national court’s rulings then you have one option: leave.  The Prime Minister will not propose such a course for two reasons.  The first is that he lacks the political courage for such a stark and bold move.  The second is that he will be well aware of the withering international reaction to a mature democracy, supposedly with the highest regard for the Rule of Law, announcing to the world that because of pique over a few court rulings it wants to withdraw into its shell.  Such a withdrawal would be a repudiation of the notion that the safeguarding of human rights is something that transcends borders and small-minded concerns over sovereignty.

This is an opportune moment to pay tribute to Dominic Grieve who was an assiduous attender at Bar Council meetings even when he was the lightning conductor for the Bar’s anger over cuts to Legal Aid.  He took his role as Leader of the Bar extremely serious as he did all of his responsibilities in the office of Attorney General.  Some have remarked on his voting record which accorded with the Government’s legislative programme.  There is no question that in some quarters it was felt that he could have been even more vocal in warning and working to stop some of the Government’s disastrous reforms in their tracks.  However it is difficult conceive how uncomfortable it must be to have a representative role in the legal profession while at the same time attending Cabinet when the Government and lawyers are at loggerheads.  Necessarily the most important persuading and cajoling takes place out of sight.

If reports of the background to his dismissal are correct then nobody should doubt that he is a man of integrity who, when called upon to sanction heedless political opportunism over hard won safeguards to the Rule of Law, showed his true colours. 

Thus one turns to the newcomers.  Youth is not a synonym for inability.  It would be crass of me to observe that as chairman of the Young Barristers’ Committee I have more practising experience than the new Attorney  General because of itself that proves nothing.  Obscurity is no bar to achieving repute and respect.  Much mockery has focussed on the new Attorney General’s chambers profile and his self-professed familiarity with video links.  The day a barrister’s worth is judged by the hyperbole of his self-publicised qualities is a truly bleak day.  A barrister of genuine integrity ought not demean himself with puffery and advertising and it is a reflection of the age in which we live that we all submit to this diminishing practice.  I judge a man on his actions not his chambers’ website.

I do not believe it to be right that with the now well established mechanism in place for Queen’s Counsel Appointments that the Law Officers should be awarded Silk as a courtesy title.  Silk is won by a rigorous process of examination and scrutiny now and it is no more right that a Government job should carry Silk as a perquisite than it would be to award a Phd.  If the Government chooses to select a junior as a Law Officer that should be clearly stated and understood.

If the Government’s reported intentions are true then this will be a fantastically fraught time to occupy these ancient offices.  Our responsibility as members of the Bar is to support the new Law Officers in their inestimably important responsibility of upholding the Rule of Law.  If they betray that responsibility through action or inaction then they can be judged, not just by us but by every human being whose worth and rights is jeopardised through political expediency.  Until that happens, as every juror should, I am keeping an open mind.

Sunday, 6 July 2014

Equality & Diversity: Not an optional extra.

When I was at Eton in the 1990s I thought I knew all about diversity.  After all just in my year group were boys from Nepal, Saudi Arabia, India, China, Colombia, France, Italy, Germany, Spain, Austria, America, Palestine and all the corners of the British Isles.  There were Protestant boys, Catholic boys, Muslim boys, Jewish boys, Hindu boys, Sikh boys, boys of little faith, avowedly no faith and a number indifferent to the whole concept.  There were even some boys without titles.  This seeming eclecticism apparently conferred on us the ability to see, appreciate and understand a world of plurality and difference. 

But this surface variety concealed a clear common denominator.  The boy from Nepal, Prince Nirajan, was excused chapel on account of his semi-divine status at home, the boy from Saudi Arabia was from the House of Saud, all the other boys though perhaps from less exalted families shared in the joint bounty of privilege.  Privilege obliterates difference because the tensions attendant on difference are instantly defused by wealth and comfort.  Money is a language and a creed understood by all anywhere in the world. 

There were of course some scholarship boysinheritors of the school's original purposenamely the education of 70 poor scholars to keep it all real.  And there was my friend Musa, now an acclaimed poet, writer and football journalist, the one black boy in a year group of about 260 boys who has written insightfully about the experience of being a minority within such a rarefied minority   

When you leave Eton you believe you can do anything.  And you believe it because you can.  And for some that is the start of a life of unexamined and unthinking entitlement.  Doors that are always open for you because they always were and always will be.  But this post is not about Eton and whether schools like it are a blessing or a curse or a much more nuanced combination of the two. 

Instead this post is about the  criminal Bar (again!) and specifically access to it. To the outsider these are institutions that are essentially inseparable.  Both require their members to wear archaic black and white uniforms.  Both appear to exist in cloistered sequestration from the 'real' world.  But do not be deceived by appearances.  The Bar is a remarkably diverse place with its members drawn from a panoply of backgrounds and ethnicities, as the Bar Standards Board's biennial survey of the Bar demonstrates:  

2.1.2 Ethnicity 
In 2011, it was reported that one in ten (10%) of 
the Bar were from BME backgrounds. This figure 
remains unchanged in 2013 with 83% from 
white British backgrounds and 6% from other 
white backgrounds and 2% from a white Irish 
background. Asian Indian is the largest minority ethnic 
origin (2%). 
There is some indication of a rise in the proportion of 
BME barristers as just 7% of those who were 
called more than 21 years ago are from BME backgrounds 
compared with 13% of those called in the last 7 
years. However, it does not appear that there has been 
much increase in the proportion of BME barristers in the 
last 20 years. By age there are similar differences with 
just 4% barristers aged 60 plus being from BME 
backgrounds compared with 12% of those aged 
under 40. There is also some evidence, corroborating 
the findings from 2011 that a higher proportion of female 
barristers are from BME origins than men (13% compared 
with 9%). 

 2.2 Educational profile 
As in 2011, several questions were devised to gather 
information about the educational background of barristers. 
First, respondents were asked to indicate the type of 
secondary school they attended (state or fee paying) and 
then two questions sought information on their higher 
education; the university attended and the class of degree 
attained. These variables proved to be illuminating in 
differentiating between barristers in their choice of practice 
areas, success in achieving Silk and a variety of other 
employment-related issues. 
2.2.1 Secondary education 
Across all barristers 56% went to state schools and 
44% to fee-paying schools, the same as reported in 
2011. Female barristers are significantly more likely to 
have attended state schools than male (65% compared with 51% 
of men) and this is the key variable correlated with type 
of secondary schooling. It is also noticeable that more of 
the under 30 age group attended state schools and fewer 
of the 60 plus age group; however, this is partly linked to 
the relative number of women in each age group. It is also 
noticeable that more BME barristers went to state schools 
(67%), more of those who are gay/bisexual (67%) and more 
of those with adult caring responsibilities (66%). These 
differences were all noticeable in 2011 as well, reinforcing 
the reliability of the data. 
One final issue that was also mentioned in 2011 and bears 
repeating is that those barristers who started a career at 
the Bar later in life i.e. they were Called to the Bar aged 30 
plus are more likely to have attended state schools (66%). 
2.2.2 Higher education 
The second set of educational background questions 
concerned the university attended by respondents to 
the survey. Barristers were asked to write in the name of 
the university they attended and, using the same coding 
system devised in 2011, these were then coded into six 
broad groups that relate to current concepts of university 
hierarchy, and can be used to monitor changes in the 
profession in future years. However, this might be viewed 
as a somewhat crude measure and it may be that when 
older barristers qualified, different universities were 
considered of a higher status, depending on the subjects 
they studied. Notwithstanding these considerations the 
groups used are: 
■■ Oxbridge (Oxford and Cambridge) 
■■ Russell Group universities (e.g. Bristol, Edinburgh, 
Imperial, LSE, KCL but excluding Oxford and 
■■ 1994 Group universities (e.g. Bath, Durham, Exeter, 
■■ Other pre-1992 universities (e.g. Keele, Aston, Brunel, 
■■ 1992 universities (e.g. Brighton, De Montfort, Leeds 
Metropolitan, Sunderland) 
■■ Second wave new universities (e.g. Bath Spa, Solent, 
■■ Others, including overseas and Open University. 
Across all barristers, three in ten (32%, 30% in 2011) went 
to Oxbridge, 39% went to Russell Group universities 
and seven per cent went to 1994 Group universities. Just 
13% went to the old polytechnic sector of higher 
In recent years more new entrants to the Bar were 
educated at Oxford or Cambridge with 45 per cent of 
the Young Bar (new entrants 1-3 years) having attended 
Oxbridge, compared with 31% across the remainder 
of the Bar. Among those who started their career at the 
Bar later in life i.e. aged 30 plus, fewer attended Oxbridge 
or Russell group universities (16% and 33% respectively 
compared with 35% and 40% among more traditional 
entrants to the Bar). 
Whether or not barristers qualified later in life as mature 
entrants or were younger traditional entrants to the 
profession is strongly correlated with the university 
attended. For example, just under half (49%) of nontraditional 
entrants to the profession attended Oxbridge/ 
Russell Group compared with 75 per cent of traditional 
entrants. This variable accounts for most of the variation in 
university attended. Conversely many more non-traditional 
entrants to the profession studied at ‘1992 universities’ i.e. 
the old Polytechnic sector (20% compared with 10% of 
those who were called to the Bar aged under 30). 
In addition to this, more BME barristers came from 1992 
universities (21% compared with 10% of white barristers) 
and fewer went to Oxbridge (16% compared with 33% of 
white barristers). 

But before you say 'Hang on those stats aren't that impressive, what about the massive Oxbridge and private school bias' just imagine what the situation was like before the War.  Legal Aid has had a transformative effect on the ability of people from all walks of life to aspire to the Bar and, much more importantly, make that aspiration a reality.  I have worked alongside barristers from a startling and invigorating array of backgrounds including a former fireman and a former rough sleeper.  What they have all had in common is not privilege but an unwavering intention to put into practice the ideals of justice.  They are members of an elite profession but not an elitist one and the distinction is a powerfully important one. 

If the Bar as an institution is to afford any value to society it is essential that its standards are of the absolute highest.  All that the Bar needs and must demand of its members is an unflinching work ethic and immaculate judgment.  Social butterflies and dilettantes are anathema to the criminal Bar of the 21st century.  In return barristers are entitled to expect reasonable remuneration from the state for their substantial efforts.  And reasonable remuneration does not mean enough to pay school fees or for a small gite in the Dordogne but it definitely means enough to permit repayment over time of debts of up to £60,000 and ownership of a roof over one's head. 

This reasonable entitlement and expectation reflects another truth about the Bar.  The quality of justice the Bar administers and promotes is only as valuable as it is legitimate.  The legitimacy of justice depends on society's acceptance of and investment in it.  If the Bar looks and sounds nothing like society then there is every reason to doubt that society will accept the outcomes of its labours.  It is for this reason that Equality & Diversity should never be treated as some kind of joke or hobbyhorse of metropolitan liberals.  It is in fact of central importance to what the Bar does. 

On 27 February 2014 the Ministry of Justice published its response to the consultation it issued regarding proposed cuts to Legal Aid . It included an Equality Statement at Annex G (my emphasis): 
 'We have considered the implications of the reforms for the advancement of equality of opportunity and the need to foster good relations. For example, where it has been said in a consultation response that a particular change may affect the participation of persons who share a relevant protected characteristic and are under-represented in public life, we have considered the extent to which the proposed changes are compatible with the need to encourage such participation. We consider that where relevant, the reforms do not undermine attainment of those objectives.  

For the most part, we do not consider changes in legal aid remuneration to be relevant to the need to advance equality of opportunity or foster good relations. Respondents to the consultation suggested that reductions in levels of remuneration would result in a less diverse Bar, in turn resulting in a less diverse judiciary. We do not consider that the reforms will put women or BAME practitioners at a particular disadvantage over others in practice at the Bar and that this would ultimate reduce the diversity of the pool of practitioners applying for judicial office. However, if there is a particular disadvantage to a particular pool of practitioners with relevant characteristics, we believe our reforms are a proportionate means of achieving the legitimate policy aims set out above.  

The primary responsibility of MoJ in administering the legal aid system must be to provide fair and effective legal aid to those clients most in need. While we have taken into account points made by respondents about the potential effect of these reforms on providers and the junior Bar, the specific levels of representation within given practice areas at the Bar and solicitors profession are primarily the responsibility of the BSB and SRA.  

Although MoJ is mindful of the need to encourage those with a protected characteristic to participate in public life and the need to advance equality of opportunity generally, MoJ does not believe that legal aid remuneration is the most appropriate policy instrument by which to achieve diversity within the professions or the judiciary. Were the reform to make the attainment of the objectives more difficult, we consider that the changes are necessary and justified in all of the circumstances (including the financial context), for the reasons set out above.'  
 I have these observations to make: 

  1. We do not consider changes in legal aid remuneration to be relevant to the need to advance equality of opportunity or foster good relations - This is a quite remarkably obfuscatory statement.  Legal Aid cuts not relevant to the need for the advancement of equality is one thing but only a fool would contend that they are not relevant to the achievement of equality. 
  1. We do not consider that the reforms will put women or BAME practitioners at a particular disadvantage over others in practice at the Bar - You will notice absolutely no evidence is provided for this 'considered' opinion.  This is because the MoJ knows perfectly well that women and BAME barristers work predominantly at the publicly funded Bar and accordingly Legal Aid cuts will in fact put them at a very particular disadvantage. 
  1. Although MoJ is mindful of the need to encourage those with a protected characteristic to participate in public life and the need to advance equality of opportunity generally, MoJ does not believe that legal aid remuneration is the most appropriate policy instrument by which to achieve diversity within the professions or the judiciary - If the MoJ does not believe that paying women and BAME barristers a fair fee for the work that they perform in the public interest is the 'most appropriate policy instrument' for achieving diversity at the Bar it would have  been awfully decent of them to say what is. 

The overall thrust of the response of course being that the need to save money trumps all other considerations including operating a criminal justice system that enjoys any kind of legitimacy or international esteem.  The civil servant responsible for this part of the response is mercifully unnamed and one can only hope it was written through a Sahara desert of gritted teeth.  
What makes this disingenuous hypocrisy especially galling and hard to stomach is that my Bar Council responsibilities entail a significant amount of outreach work with, for example, The Social Mobility Foundation 

This and the work I do with the Kalisher Scholarship Trust enables truly bittersweet interactions with bright and able teenagers of genuinely diverse backgrounds.  They are introduced to the work of the Bar through observation, mock trials and debating and put through basic advocacy paces.  The latent talent of some of these children is abundantly obvious and to have a clutch of them inspired to say at the conclusion that they would like to aim for the criminal Bar is to feel drawn into the Ministry's grubby deceit.  These children can and must be the barristers of the future but setting them on the road without the promise of a living at the end of it would be to traduce the integrity of their dreams. 

Last week I visited the Bethnal Green Academy which in a previous incarnation was the alma mater of the Kray twins.  In Special Measures in 2007 it is now rated as Outstanding; an appellation which was richly deserved if the day I spent there was typical.  The Kalisher team put the children through their paces in the main hall of the school on the wall of which is quoted Nelson Mandela: 

'Education is the great engine of personal development.  It is through education that the daughter of a peasant can become a doctor, that the son of a mineworker can become the head of the mine, that a child of farm workers can become the president of a great nation.  It is what we make out of what we have, not what we are given, that separates one person from another.' 
I couldn't help but feel that the quote might be more pointedly and usefully displayed at the Ministry of Justice. 

Something that I have learnt from my time at the Bar is that diversity isn't just about skin colour it is about experience, expectation and opportunity.  What to one child is handed on a plate is to another placed at the pinnacle of Mount Everest.  The least we can do as a society is supply some climbing equipment.