the barrister
#56
ESSENTIAL READING FOR BARRISTERS
9 th A pril - 24 th M ay 2013
E st . 1999
www.barristermagazine.com
Easter Term ISSUE
ISSN 1468-926X
Judicial Diversity – working for change
Features
There are many truisms about a career in
that I should consider becoming a Deputy
the law, none more obvious than the fact
District
that we will all be faced, often on a regular
Perhaps
basis, with competing priorities for our
of
attention. I know that when I was a partner
at the time it had
in my law firm my professional and family
never occurred to
responsibilities often competed and, without
me that I would be
the support I received from others, juggling
suitable. If others
would have been all the tougher. Given
are thinking this
the constraints on my time the question of
way, then we may
whether to become a judge or not was the
be missing out on
last thing on my mind. I remember being
a range of talented
surprised when someone suggested to me
candidates
the
price £2.80
limbo for would-be barristers has been opened 11 Career up with a new route into the legal profession
Judge.
By Patricia McHale, Senior Lecturer in Law, London Metropolitan University
because situation
24 Are You Sick of Diversity? By Caroline Newman LLM, non-practising solicitor and Principal Consultant at Lawdacity
Helen Grant MP Justice Minister
for
p.6
and law: 28 Language reclaiming the human rights Debate By Lucy Scott-Moncrieff, President, Law Society
Public funding cuts and the future of the junior Bar
News
April 2013 sees the introduction of some
funded by the LSC. Further, this significant
of the most far reaching changes to the
reduction in the availability of public
public funding of Family Law cases in
funding is only one facet of the broader
many years. Among the raft of significant
reduction in funding for Family Law cases.
changes which are due to come into effect
Funding for financial relief and other
in that month, perhaps the most significant
miscellaneous Family Law cases is also
is that private Children Act cases will no
being constricted; the LSC has stated that
longer be eligible for public funding at all,
it envisages its coming reforms to public
save in cases where there are allegations of
funding to lead to an 83% reduction in the
domestic violence.
number of financial relief cases it funds,
Publishing Director: Derek Payne
while overall the LSC has indicated that
email: info@barristermagazine.com
According to the LSC's own figures, this
it intends its reforms to lead to a general
is intended to lead to a 75% reduction in
reduction of 56% in the number
the number of private Children Act cases
of private Family Law cases which
22
Bar Council calls for proportionate regulation in response to LSB’s business plan
23
‘Risk-assessed’ supervision consultation launched
0845 5190 176 Publishers: media management corporation ltd Design and Production: Alan Pritchard email: info@soinspire.me.uk
p.10
00
the barrister
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the barrister
03
Fighting ghosts: secret justice and the Justice and Security Bill By Kate Allen, Amnesty International UK director
“
I always tell my lawyers we’re
“Closed material” is information that the
cases, says: “It is impossible for me to
fighting ghosts. I gave up. I got tired
government claims would be damaging
adequately convey the frustration and
of asking ‘show me the evidence’.
to national security or otherwise harmful
helplessness felt by a barrister seeking
I know I have a Special Advocate but I
to the public interest if it were to be
to represent a client when a closed
don’t think the Special Advocate can
disclosed. This material is withheld for
material procedure applies. I have
make a difference. If you can’t speak
the entire case (and indeed perhaps
sought to do it in control order and SIAC
to your Special Advocate and he can’t
forever) from the individual/s whose
cases on many occasions. Most of your
speak to you or your legal team how can
interests are at stake in the case, from
time is spent outside court, waiting to
he fight a case on your behalf?”
their lawyer, and from the media and
be allowed back in. When you are able
wider public, none of whom has access
to cross examine, you have no idea
This is how one exasperated man
to the closed part of the case. With the
whether the questions you are asking
described the process of trying to
extension of closed material procedures
are pertinent, or unhelpful. You do not
challenge the use of secret evidence in
to the ordinary civil system this could
know whether your submissions are on
a “national security” case, including
mean that a survivor of torture suing
point, or wholly irrelevant. Representing
to justify the imposition of restrictive
for damages against a government
a client in these circumstances has been
immigration bail conditions. The wife
department might not be allowed to
described as like taking blind shots in
of another man who was similarly
know the content of such material,
the dark at a hidden target.”
subject to restrictive bail conditions
even though the court can rely on it to
and deportation procedures on national
determine the facts and outcome of their
A report from Amnesty International
security grounds echoed this, saying
case.
last
year
charted
the
troubling
expansion of closed material procedures
“You should be able to see the evidence. Even our solicitor can’t see it; that is
In supposed mitigation of the unfairness
into the UK legal system in recent
a nonsense, it’s just ‘secrecy, secrecy,
of
years. At the last count there were
secrecy’ and if your lawyer asks any
has
questions they [the government] just say
(security-cleared lawyers). These are
where the government can potentially
‘I can’t comment’”.
appointed to (try to) represent the
rely on evidence that may remain
interests of individuals involved in
undisclosed to an opposing lawyer and
The government’s use of secret evidence
the closed part of the hearing. Special
to his or her client. With the Justice
to deprive or substantially restrict the
advocates are able to review secret
and Security Bill, the government
liberty of individuals in the UK has
evidence but are forbidden from actually
is seeking to expand closed material
already been a matter of considerable
communicating, except in very limited
procedures into civil cases where these
concern to human rights groups and
and narrow circumstances, with the
are said to involve matters of national
legal practitioners for well over a decade.
individual concerned or their legal team,
security. It means that where plaintiffs
In particular, the process known as a
and they are prohibited from discussing
seek damages against the government
“closed material procedure”, introduced
any part of the secret evidence with
over a government official’s alleged
more than 15 years ago in the wake of
them.
involvement in - for example - their
the
procedure,
introduced
the
“Special
government Advocates”
already
21
different
legal
contexts
kidnap (“rendition”), illegal detention
Chahal v UK (a 1996 European Court of Human Rights case concerning the
Meanwhile, the representing lawyer
or even torture, the government may be
deportation of a foreign national) has
is left largely in the dark. Dinah Rose
able to rely on secret evidence that the
been highly contentious.
QC, who has acted in several such
individual, their lawyer and the public
04
the barrister departments
government agency already implicated
Service)
in
in wrongdoing requires laws to enable
A key government claim in support of
November 2010. Yet the government’s
it to continue to operate - out of sight of
the Bill has been to maintain that cases
determination to keep the case secret
full judicial or public scrutiny. It is also
will not otherwise be able to proceed
at all costs appears to be the reason
worth adding that were it not for the UK
because of the risk of revealing sensitive
the case was settled. Earlier in the case
authorities’ years-long failure to provide
material or working methods. The
the government had fought to introduce
for any remedy (including an effective
former Justice Secretary (now Minister
unprecedented secrecy - in the form of a
independent investigation) in the case
without
has
closed material procedure - into a civil
of several former detainees, then these
argued that a closed material procedure
trial case, despite this being done in the
same individuals may not have been
is a sort of “flexibility” option, necessary
absence of existing statutory authority.
forced themselves to take cases against
to
over-
At the Court of Appeal (Civil Division),
government departments.
disclosure, cases being struck out or the
Lord Neuberger (then Master of the
forced settlement by the government
Rolls) firmly resisted this, observing that
When
of cases it could, it implies, otherwise
“it is not open to a court in England and
security” and the need to “safeguard”
have fought successfully. Mr Clarke has
Wales, in the absence of statutory power
the work of those in the intelligence
said that presently “judges cannot hear
… to order a closed material procedure
services, that does not give them carte
evidence gathered by spies, even when
in relation to the trial of an ordinary civil
blanche to push through illiberal and
it is absolutely central to the case”.
claim, such as a claim for damages for
dangerous legislation. Ken Clarke talks
“There is no option”, he claims, “but
tort or breach of statutory duty.” With
of devising a system that “protect[s]
for this material to be excluded entirely
this route to secrecy looking likely to be
the secrets of our intelligence services
from the courtroom”.
closed off, the government first settled
from public scrutiny but make[s] sure
the Al Rawi case (without waiting for the
that they remain accountable to the
In truth this is greatly overstated. Indeed
Supreme Court to rule on the issue and
law, to Parliament and to the public”.
there are several existing “options”.
prior to completing the Public Interest
Yet the Justice and Security Bill looks
In the past we have seen cases where
Immunity process to determine how
set to throw a cloak of secrecy over
parts of a case were held in camera,
much material could be disclosed in the
behaviour that should be brought to
where confidentiality agreements were
case) and quickly doubled back to try to
wider attention, indeed in some cases
enforced, where access to some part
introduce the statutory power that would
behaviour
of the proceedings was restricted for
offer to entrench secrecy into future civil
further investigation by the police and
the media, where witnesses’ identities
proceedings. Mr Clarke’s outrage was
other authorities.
were protected, where redactions were
misplaced; indeed the outrage should
employed, and so on. In many ways, this
properly be ours, not the Secretary of
When the Green Paper for the Justice
is just normal legal practice.
State’s.
and Security Bill was published in
various
will never see.
(Al
Portfolio)
prevent
Ken
either
Clarke
dangerous
government
Rawi
v
Security
politicians
invoke
potentially
“national
deserving
of
October 2011 Amnesty described the Instead, government ministers have
Tim Otty QC, one of the lead counsel
Bill as intending to make “drastic
ignored
in Al Rawi v Security Service, has
changes to the justice system”, while
written witheringly about the Bill’s
worrying that the government had a
objections to the Bill) and, apparently
unprincipled
patent
closed mind on the subject and would
heedless of measured criticism and
impracticality, and in particular of
listen to little of the arguments against
indeed longstanding legal principles,
how we should be extremely wary of
the measures. Time seems to have
have played to the gallery with a series
accepting the government argument
proven us right. Ploughing on in the face
of misleading claims. For example, Mr
that the intelligence services require
of considerable opposition, trying to
Clarke has spoken of “understandable
this legislation if they are to function
reverse numerous ameliorative (though
public outrage” over the government’s
efficiently. The latter point is worth
still
settling of the case brought by several
emphasising. We are essentially being
introduced by the House of Lords, the
former Guantanamo detainees against
asked to take on trust a claim that a
government has appeared determined
solutions
these (and
perfectly
reasonable
numerous
other
unfairness,
its
only
peripheral)
amendments
the barrister to depart radically and dangerously
the court arrived at its decision”, and
from the normal principles of fairness
“a clearly reasoned Judgment enables
that currently apply in civil trials cases.
the public to understand the law and to see what is being done and said by the
Richard Hermer, another barrister who has experienced the difficulties thrown up by closed material procedures in SIAC cases, has described it as “the
judges in the courts, to see how justice is being dispensed.” In the Kafkaesque world of the Justice and Security Bill, judgments are potentially closed or based on evidence never disclosed to
most Kafkaesque court environment I
those it most affects. Instead of open
have ever been in or would want to be
justice we are nearer to the famous
in”. Similarly, Amnesty has described
parable in The Trial, where a man from
the overall effect as being “a secret
the country is forever excluded from
justice system straight from the pages of
justice by a fierce doorkeeper guarding
a Kafka novel”.
law’s portal. If instead of accessing justice you’re reduced to fighting ghosts,
To quote Lord Neuberger again, now speaking as President of the Supreme Court, “a reasoned Judgment is a wellestablished ‘function of due process, and therefore of justice’”. In other words it is intrinsic to a fair trial. “A clearly reasoned Judgment”, says Neuberger, “enables the litigants to understand why
then something has gone badly wrong with the law. Secret justice is no justice at all. Rose http://www.reprieve.org.uk/ media/downloads/Atkin_Memorial_ Lecture_Final_version.pdf Amnesty report – http://www.amnesty. org/en/library/asset/EUR45/014/2012/
05
en/546a2059-db83-4888-93ba8b90cc32a2de/eur450142012en.pdf J&S Bill – http://services.parliament.uk/ bills/2012-13/justiceandsecurity.html Clarke - http://www.dailymail.co.uk/ news/article-2151486/Ken-Clarke-Mysecret-justice-plans-broad-Mail-publicservice-fighting-them.html?ito=feedsnewsxml#axzz2K3k6k5Ei Neuberger C/App - http://www.reprieve. org.uk/static/downloads/Microsoft_ Word_-_Al_Rawi_v_Security_Service-_ Final.pdf Otty - http://www.opendemocracy.net/ ourkingdom/tim-otty/slow-creep-ofcomplacency-and-soul-of-english-justice Amnesty Kafka http://www. a m n e s t y. o r g . u k / n e w s _ d e t a i l s . asp?NewsID=20601 Neuberger Sup Ct - http://www. s u p r e m e c o u r t . g o v. u k / d o c s / speech-121120.pdf
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06 p.1
the barrister
judicial office. Achieving
judiciary
is
a
more
something
diverse
that
I
figures are even starker when we focus
now runs outreach events aimed at
only on the senior levels of the judiciary.
practising lawyers, where they provide
This just isn’t good enough.
information about the requirements
am
of judicial office, and where you can
committed to - both personally and in
During
practising
get advice and guidance about the
my roles as Justice Minister and Minister
solicitor, a judicial career wasn’t seen
appointments process. These events
for Women and Equalities. Our judiciary
as being open to everyone. The ‘tap
present a fantastic opportunity to dispel
is rightly world renowned: respected
on the shoulder’ approach, where it
those myths about judicial appointments
for their professional expertise and
was who you knew and not what you
and what a career in the judiciary might
their independence. But the reputation
knew, still held sway. I don’t recall
be like. I think it is important to have a
of our judges should not distract us
opportunities being widely promoted
realistic view of the demands of judicial
from the fact that the diversity of our
and there was a distinct lack of support
office before applying, to make sure you
judiciary, while improving, is still a
and information available to those
have the right skills and experience to
long way from reflecting the make up
who might have considered applying.
warrant selection.
of society. Of course, our judges must
Thankfully, we have come some way
always be appointed on merit – but
since then, but there is still more that we
The
the judiciary play such a vital role in
could be doing to promote opportunities
important changes to the appointments
the administration of justice that it is
more widely and provide support and
process and to the way in which judges
essential they are representative of the
encouragement to eligible candidates
can work to try to encourage more
people and society they are serving.
from under-represented groups.
people from diverse backgrounds to
my
years
as
a
I believe that more diversity among
Government
is
making
some
apply for office. Through the Crime
our judges will not only increase
We also need to think about how we
and Courts Bill, we are enabling judges
public confidence in the judiciary and
get diverse candidates to consider a
to work part-time in the High Court
the justice system as a whole, but
legal career as an option in the first
and above, a principle that is already
will also provide visible role models
place. The Government is playing its
established in the lower courts, so that
from different backgrounds for those
part in this, as are the judiciary, the
those with responsibilities outside of
aspiring towards the legal profession
Judicial Appointments Commission, The
work still have the opportunity to take
and eventual judicial office.
Law Society and the Bar Council. The
up a judicial post. As a working mother,
Commission has recently updated their
I appreciate the strain that those with
The profile of the legal profession –
research on the perceived barriers to
caring responsibilities can be under,
the judges of the future - is, albeit
applying for judicial office, which sought
and I think offering this flexibility and
slowly, evolving into a more diverse
the views from a range of contributors.
prospect of a better work-life balance
and representative one.
It is also
This report, when published, will help
could
encouraging to note that more women
shape the work that all of us involved
who have rejected a judicial career
are being recommended across all
in the process take forward over the
reconsider.
levels of the judiciary, and candidates
coming years.
from Black, Asian and Minority Ethnic
make
talented
individuals
I cannot emphasise enough that none of
backgrounds are performing well in
The Bar Council runs an annual social
these changes will alter the fundamental
entry-level
However,
mobility Bar Placement Scheme, which
principle that judges must always be
change is not happening quickly enough.
introduces sixth form students to life at
appointed on merit. But, such is the
Still only 22.6 per cent of our judiciary
the Bar, and also works with schools
importance of increasing diversity to
sitting in the courts are women and of
to encourage able students to consider
public confidence in the criminal justice
those who stated their ethnicity, only
a career at the Bar. The Bar Council’s
system, where there are two candidates
5.2 per cent are from a Black, Asian
Equality
Committee
who are completely indistinguishable on
or Minority Ethnic background. These
in partnership with the Commission
merit, selection panels will be allowed
competitions.
and
Diversity
the barrister
07
to consider diversity when making a
be proactive in setting out the career
Achieving greater judicial diversity is
final decision.
opportunities for talented individuals
not only a priority for me but something
from under-represented groups and
I care deeply about. Some say it is
The composition of selection panels for
encouraging them to apply for judicial
just a matter of time; that increasing
senior judges is changing, which will
office. So if you know a talented colleague
diversity in the legal professions will
bring a more diverse group to the process
who you think might be suitable, then
eventually create a ‘trickle up’ effect
of judicial selection, representing a
encourage them to apply. Perhaps, as
into the judiciary. But to me it isn’t good
wider range of experience and views.
was certainly my experience, they may
enough to just sit and wait. We need to
The Lord Chancellor and Lord Chief
have just never considered it as an
take more action now. I am confident
Justice will in the future be under a
option. A little honest encouragement
that with commitment from the legal
duty to promote judicial diversity, which
may be all that they need.
professions, and strong leadership from
will provide a strong signal that the
the Government and the judiciary, the
Government and the judiciary are taking
For individuals considering a judicial
meaningful action we are all taking
this issue seriously and are committed
career, think about whether now would
could lead to real and visible change.
to providing leadership.
be the right time to apply. Make the most of the information and outreach
There is clearly a lot of valuable
events provided by the Bar Council, and
work being done, but this must be a
consider talking to designated contacts
collaborative effort and I would ask
to discuss your thoughts and their
you to help where you can. We must all
experiences.
Helen Grant MP, Justice Minister
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08
the barrister
Rape stats, Savile and a Royal Commission By Felicity Gerry QC, 36 Bedford Row
T
his year I spent 2
Commission
Justice
place in private, with restrictions on
months in Australia
Peter McClellan AM said “The Royal
naming individuals and on reporting.
arriving just as the
Commission
charged
However, public understanding of what
terms of reference for
with examining the sexual abuse of
has gone on is a “fundamental objective”
a Royal Commission
children in the context of institutions
of the Commission so it is likely that,
into
institutional
throughout Australia. Having regard
where possible proceedings will be in
responses to child sexual abuse were
to what is already publicly known of
public. My view is that, subject to the
published. Ironically, the terms were
these problems the task before the
appropriate funding and providing it
published on the same day as the report
Commission is large. However, until the
is made clear that the process is to
in to abuse by the late DJ Jimmy Savile
Commission has commenced its work
improve things for the future not to
and in the same week as a study by
and people come forward to give us an
get bogged down in the past, this is a
the UK Ministry of Justice, Home Office
account of their personal circumstances
process that would be worth mirroring
and Office for National Statistics found
we cannot gauge the full extent of that
across the world.
that in the UK up to 500,000 people
task”. He said that six commissioners
Men like Jimmy Savile offended with
are victims of sex crimes every year.
would “endeavour to gain a complete
impunity. Priests and other professionals
The statistics are awful but, the sad
understanding
systematically
truth is there is no rape epidemic; it’s
various parts of Australia in the most
Witnesses who must have been aware
just that finally rape has become big
efficient manner possible…... our task is
of what was going on did nothing and
news. Rape is endemic across the world
complex and will take significant time”.
now seek to blame the system and the
and has been for generations. It occurs
It is an interesting evidence gathering
system has a lot to answer for. Early in
in homes, in institutions, in the street
process: Vulnerable witnesses will need
the Operation Yewtree investigation, I
and is a war crime. Ask any criminal
to be accommodated, the Commission
wrote in the Times: “Those who failed
barrister and they’ll tell you that the
has powers to compel the production
to act will have to live with themselves
Criminal Courts are full of serious cases
of evidence, including documents, and
forever but arguably the courts and
of rape, abuse and sexual violence but
Justice McLellan indicated that the
the justice system were not to blame.
for years the public gallery has been
commission will expect “all institutions
Parliament made the laws that so
empty. Ironically, the glut of cases is the
that may have entered into confidential
failed to protect young women and
inevitable consequence of improvements
agreements
will
those laws were debated by men who
in data collection and in prosecuting
cooperate with the Commission in
mixed with the likes of Jimmy Savile.
offences. As counsel, we deal with
relation to the disclosure of those
Parents, friends and colleagues passed
matters that should have been tried
matters”. This will place a heavy burden
by inappropriate conduct and failed to
decades ago but people were inhibited
on church and teaching organizations
act. The courts can only sort out the
or prevented from complaining. It is
who may have dealt with abuse “in
philanderers from the paedophiles if
the secrecy of abuse that allows it to
house” in the past.
given the opportunity”. It now seems
perpetuate. The public may not like
The Commission is not a prosecuting
that some people did complain to
it but my prediction for 2013 is that
body but it “will establish links with
the authorities but a prosecution of
they will hear a lot more about abuse
the appropriate authorities in each
Savile was not pursued. There must
and that knowledge should inevitably
State and Territory to whom a matter
have been failures at every level, long
inform their day to day conduct. “Dirty
may be referred with the expectation
before any criminal proceedings were
old men” and abusive women will be
that where appropriate prosecutorial
contemplated.
exposed far more than they ever were
proceedings
Not everyone is a rapist and it is
in the past.
encourage victims to come forward,
important
Launching the terms of the Royal
some parts of the proceedings will take
is reliable and the right suspects are
in has
of
with
may
Australia, been
the
problems
individuals
commence”.
in
To
that
abused
evidence
children.
collected
the barrister
09
identified. It is just as bad to be falsely
slavery based not on a court case but
sure such cases are properly and fairly
accused of sexual abuse as to be a victim
on a 18th century judge's decision that
tried. Jimmy Savile would have had
of it. Nevertheless, it is equally important
a husband could not rape his wife."
a complete defence under the old UK
that the law reacts to any findings by an
Times have definitely changed and the
law to some of the allegations against
inquiry. Law makers across the world
process of improving the law to provide
him. He knew it and had a “policy” to
have taken a long time to react to sexual
protection for individuals is not over.
react to any allegation that kept him
offending. In England and Wales, for
The
Savile
from a robust prosecution. In the UK
many years, the maximum sentence for
investigation
Australian
the law has been much improved and
indecently assaulting a female child was
Royal
findings
in Australia, by launching the Royal
2 years, unlawful sexual intercourse
that that individual prosecutors were
Commission, the Prime Minster, Julia
was time barred after a year and the
“unjustifiably cautious” or that Church
Gillard has given victims an opportunity
idea that a man could rape his wife
confessions were kept secret in the past
to be heard.
without sanction remained good law
but to learn from those past mistakes in
The high profile cases are the tip of an
until as recently as 1991. The weak laws
order to inform future cases. Statistics
enormous problem that will place great
effectively allowed sexual offences to be
on child abuse are not an exact science
strain on any criminal justice system in
committed behind closed doors with
as abuse takes so many forms ranging
any part of the world but it is important
no proper police intervention. Much of
from grooming to violence. A Royal
that men, women and children can go
the old law and sentencing has now
Commission is a useful process to collect
about their lives with as much safety
changed. For example, on the 24th of
information. The truth is that, although
as possible and that sex offenders are
October 1991, The Times front page
there were complaints against Savile
identified and locked away, whether
read: "Wave of prosecutions will follow"
that were not properly followed up,
they are celebrities or not. We can learn
as five law lords unanimously swept
there were nothing like the complaints
lessons from the dead suspects but it’s
away the principle established by Chief
that have been made since his death.
the live ones we need to catch and
Justice Hale in 1736 that by marriage, a
Suddenly people are complaining and
woman gave her body and irrevocable
the good news is that they are being
collecting evidence, information and data is a good place to start1.
consent to sexual intercourse with her
heard. Ironically, like most criminal
husband in all circumstances. Lord
barristers, I have been listening to
Felicity Gerry
Keith of Kinkel said that the principle
these people in court for years – the
36
was “anachronistic and offensive” and
prostitute violently raped by her pimp,
counsel at William Forster Chambers in
that the common law could change in
the step daughter systemically abused
Darwin, Australia and co-author of The
the light of social, economic and cultural
by her step father, the young boy abused
Sexual Offences Handbook (2nd Edn
developments.
Lord
Lane
importance and
Commission
of the is
the not
Bedford
Row,
London,
visiting
declared
by his care worker and the school
due 2013)
that "a rapist remains a rapist and is
children whose headmaster admitted
January 2013
subject to the criminal law, irrespective
in evidence that he had a fetish for
of his relationship with his victim ".
little girls’ knickers. All of these are real
1 R v R [1992] 1 A.C. 599, House of
According to The Times report at the
cases. All resulted in convictions and
Lords
time; “the ruling caused uproar in the
long sentences. Often the evidence is
public gallery, and cheering supporters
historic, sometimes it is more recent. It
of Women Against Rape were evicted....
is common for complaints to be delayed
its spokeswoman, Claire Glasman said:
through fear, trauma and just an old
"This is a fantastic day for women
fashioned belief that victims will be
everywhere. The law lords have finally
ignored. There are some fabulous police
nailed a legal lie which has somehow
officers out there who really try to make
survived for nearly three centuries. This
sure that their cases are prosecuted,
is really a step towards making it clear
there are lawyers who take a chance
legally that women have the right to say
on flaky evidence from a vulnerable
'no' to sex, even if they are married.
witness and there are advocates who
It overturns 250 years of legal sexual
give their all in court to try to make
10 p.1
receive
public
the barrister
funding.
While
funding for public Children Act
at sets doing any significant quantity of
case. Negotiating with such litigants in
Family Law work.
person can often feel akin to pulling teeth; in an effort to avoid being taken
cases has thus far avoided the swing of the Treasury's fiscal axe, the
In addition, it is through working on these
advantage of, litigants in person are
reforms outlined above are intended to
publicly funded cases that most junior
frequently wary of agreeing to even the
result in a total reduction of 40% in the
Family Law barristers gain experience
most commonplace and common sense
number of Family Law cases which are funded by the LSC1.
and develop their professional abilities
provisions within a draft order, and
and expertise. These cases act as an
their emotional investment in the case
invaluable training ground from which
means that attempted negotiation on
It is well known that the LSC is
Family Law barristers can move on
the substance of the case is too often
carrying out these reforms with the
to undertake larger and more complex
completely fruitless. Meanwhile, in an
aim of reducing the Legal Aid budget by
privately paid cases. This is especially
attempt to give the litigant in person
some ÂŁ350m. Whether these planned
the case when it comes to financial
a fair chance, judges are sometimes
reductions in public funding will in fact
relief work. The loss of the majority
inclined to give the party with legal
save the government any money in the
of this publicly funded work therefore
representation a tougher time in court
long run has been heavily debated over
threatens to severely disrupt the Family
than might have been expected, making
the last two years. Similarly, there was
Bar at large by reducing the flow of
that party's representative's job harder
extensive discussion of the possible
fully experienced barristers into the
still.
effects on the most vulnerable in society
upper ranks of the profession. The
of these reforms in the lead up to
long term effects on the quality of
Thus after April those at the junior
passing of the Legal Aid, Sentencing and
the service offered by the Family Bar
Family Bar face the threat of a significant
Punishment of Offenders Act in 2012.
are incalculable but are likely to be
reduction in the size of their practice and
What has not been discussed in such
significant.
consequently of their income, combined at the same time with an increase in
detail, and what I wish to consider here today, is the effect these reforms are
Finally, these reforms are inevitably
the difficulties faced by them and by all
likely to have on the legal profession,
going to result in a large increase
other Family Law practitioners at court.
and specifically on the junior Bar.
in the number of litigants in person
It is to be hoped that those in charge
from April 2013 onwards, as has been
of the public funding of Family Law cases in England and Wales take note of
independent Family Law Bar will know,
recognised by the Lord Chief Justice Lord Judge among others2. This is
a significant proportion of the work
likely to make the work of those at the
posing for those at the Bar and for other
given to the more junior members of
Family Bar harder at the very moment
legal professionals before the effects of
the Family Law Bar is publicly funded.
when the changes to public funding are
these reforms become irreversible.
Young barristers in their Second Six
placing practitioners under exceptional
and in the first few years of practice
financial strain.
As all barristers in practice at the
the serious problems their reforms are
Aidan Murray Crook, junior barrister, Trinity Chambers, Chelmsford
will generally work on large numbers of publicly funded private Children
Many of those reading this article
Act and financial relief cases. These
will already have experience of the
1
publicly funded cases provide many of
problems litigants in person can present
gov.uk/20111121205348/http:/www.
those at the junior end of the Family
to practitioners at court. Litigants in
justice.gov.uk/downloads/consultations/
Bar with the bread and butter of their
person
annex-a-scope.pdf
practice. The disappearance of the
detailed knowledge of the substantive
2
majority of this work overnight in April
law relating to their case, and of the
lcj-voices-new-fears-over-rise-litigants-
2013 cannot fail to have a seriously
procedure to be followed at court,
person
deleterious impact on the careers and
meaning
livelihoods of all those in junior practice
longer than would otherwise be the
often
that
understandably
hearings
take
lack
much
http://webarchive.nationalarchives.
http://www.lawgazette.co.uk/news/
the barrister
11
Career limbo for would-be barristers has been opened up with a new route into the legal profession By Patricia McHale, Senior Lecturer in Law, London Metropolitan University
F
or many years getting
toughening up the bar programme,
Anthony
pupillage
been
with the new BPTC replacing the Bar
outreach manager at Inner Temple,
tough
Vocational Course in 2010. They have
comments, “It isn’t just about the
(to say nothing of the
also raised the pass mark in skills
numbers, though, the breakdown of the
further challenge of
subjects from 50 to 60 per cent, only
numbers is important as well. We need
securing
allowing two attempts to pass and no
to look at who we’re attracting as a
in-course reassessment.
profession – we find talent wherever
has
increasingly
tenancy).
The oversupply of young barristers has grown every year – there were at
Dursi,
recruitment
and
that may be from, but we need to make
least several armfuls of hopefuls for
This has now been followed by the
sure we provide balance so we don’t put
every one of the 446 pupillages up for
Bar Aptitude Test in a bid to lower
off students who would get a pupillage.”
grabs in 2012 and only one in six UK
the proportion of students with a
Dursi, agrees that more still needs to be
national students who complete the Bar
propensity to fail and ensure those
done to help students from less privileged
Professional Training Course (BPTC) are
with a low aptitude do not slow down
backgrounds enter the legal profession.
successful at gaining pupillage at the
classes. Piloted between July 2009 and
However, he emphasised that the bar
Bar of England and Wales. http://www.
September 2011, students who have
is better at recruiting outside Oxbridge
barcouncil.org.uk/about-the-bar/facts-
taken the test have been far from
and the Russell Group than many people
and-figures/statistics/
complimentary, saying that although
realise. The most recent statistics from
they understand the need for such a
the Bar Council show that 27.4% of pupil
Despite the overwhelming statistical
test, as it currently stands it is not fit for
barristers studied at universities outside
conundrum faced by candidates and the
purpose.
this elite band. http://www.barcouncil.
dire warnings pronounced repeatedly
org.uk/about-the-bar/facts-and-figures/
by the bar, there are an increasing
It is undoubtedly here to stay, even if
number of students lining up to hand
its form is further refined, as the BSB
over around £16,000 each for the BPTC.
believes the outcome of the test shows
The Inns have done a massive amount of
The Bar Council and Bar Standards
a good correlation with the outcome of
work to reach out to people, particularly
Board’s (BSB) ‘Bar Barometer’ shows
the BPTC.
from ‘non-typical’ bar backgrounds,
that for 2010-11, 3,100 people applied
statistics/#PupilBarStats
where even acknowledging they want
for the BPTC, up from 2,657 the year
However, there is clearly much more
to come to the bar is a massive step.
before. This has become a huge issue
that needs to be achieved as the desire
Through outreach activities such as the
for the Bar and will be considered at
to control numbers has to be balanced
the forthcoming Annual Bar Conference
against the need for increased access
2012 in November.
to the bar – the dilemma is that if there were a mechanism for reducing
So what has been done? The professional
numbers wholesale then there is the
bodies have spent a great deal of time
potential that this could impact on
focusing
diversity.
on
raising
standards
and
The barrister magazine cannot accept responsibility for information supplied by other parties, views expressed may not necessarily be that of the editor or publishers.
12
the barrister
Pathways to Law programme, school
years, has issued a call for "affirmative
visits and online information, the Inns
action" to compel the legal profession to
have
recruit more students from lower socio-
Challenging
economic backgrounds into its ranks.
public funding may also help, as it is
made
prospective
¬barristers
very well-informed not only about the statistics but also the opportunities and
problem.” government
moves
on
suspected there will be a further dip
scholarships. The progress the bar is
Speaking
John
in pupillages this year as practitioners
making in terms of social and economic
lamented "systems at work in the
at family and criminal chambers suffer
mobility can be seen in the Barometer
legal profession that are impervious to
from legal aid cuts.
statistics comparing the cohort of pupils
diversity initiatives".
at
the
symposium,
in 2009-10 with 2008-09’s figures. In
Whether that reduction will be made up
2009-10 only 23 per cent of pupils came
The review focuses not only on numbers
for by the thrusting commercial bar or
from Oxbridge compared with 32 per
of students entering the legal profession,
more opportunities in the employed bar
cent the year before; only 46 per cent
but also on future changes in legal
remains to be seen, and depends very
of 2009-10 pupils came from Russell
practice, but the panel is not due to
much on the economic situation.
Group universities compared with 65
report until December. So watch this
per cent previously; only 7 per cent of
space!
So what else is being done now? A
pupils’ parents were lawyers compared
change in regulations by the Solicitors
with 13 per cent ¬previously; and 55 per
So where does that leave us regarding
Regulation Authority in May 2012, now
cent of pupils came from a professional
the disparity in numbers? More funding
allows graduates from the BVC/BPTC
background compared with 75 per cent
for pupillages seems an obvious solution,
within the last five years to undertake
previously.
but is difficult because chambers are
a shortened Legal Practice Course (LPC)
commercial enterprises subject to the
which does not require them to study or
In terms of the future, a lot depends
inexorable laws of supply and demand.
be assessed in litigation based subjects.
on the outcome of the Legal Education
There are not huge swathes of legal
They are given credit for “accredited
and Training Review (LETR), which
work being left undone because of a
prior learning” and will therefore be
is a comprehensive review by the
lack of people-power and chambers are
exempt from taking these subjects.
representative
bar,
not going to take on people if there is
http://www.sra.org.uk/students/lpc/
solicitors and legal executives looking
no work for them, and nor should they.
accreditation-prior-learning.page
at the education and training of lawyers
BSB chair Baroness Deech commented ,
across England and Wales.
“People are talking about various ways
After completing the new shortened
of increasing pupillages.
But there’s
version of the LPC, bar graduates will
LETR held a major symposium in
no point in increasing numbers of
still have to obtain and complete a
Manchester in July 2012. In his address
pupillages if there isn’t the work for
training contract in order to qualify as
to the symposium, Professor Richard
them to do in their first years – it is
a solicitor. The exemptions do not apply
Susskind – who is advising the review
market forces.”
to any part of the training contract. But
bodies
of
the
team – laid out his vision for the future
this will enable bar graduates to enter
of legal services. “We have got to open
“The
our eyes, widen our horizons and train
outstanding and absolutely wonderful
our lawyers for as they will be, rather
and the country could use these people,
Undoubtedly there are more training
than as they are today,” he said.
but due to cuts in legal aid and the
contracts available than pupillages even
economic recession it’s very difficult.
in the current economic climate. Nigel
the chair of the
The bar is not alone in this – look at
Savage, Chief Executive at the College
diversity group advising the biggest
the numbers of media graduates trying
of Law said, “The number of training
review of training for lawyers in thirty
to get into the BBC. It’s a national
contracts was up by 11% last year.”
Professor Gus John,
quality
of
bar
students
is
the legal profession as solicitors.
the barrister
“There is the potential for continued
Why has the SRA introduced this change
growth in the legal services market,
in regulations? The introduction of a
with all the opportunities that growth
policy on accredited prior learning in
brings. We do need more lawyers,’ he
relation to the LPC appears to have been
said.
under consideration for some time. However, because of the impact that
The ratio of applications per vacancy
such a policy could have on achieving
in the law sector is one of the lowest at
their stated regulatory objective of
45:1 – the average is 73:1. Many City law
increasing access to the profession they
firms, such as Allen & Overy and Clifford
have decided to make this change in the
Chance, recruit over 100 graduates
regulations now.
every year. Although the sector is highly competitive – with a minimum entry
Historically, legal education has been
standard of a 2.1 for 76% of firms – it
slow to respond to the rapidly changing
remains rich in opportunities for would-
legal services market; however the
be trainees.
emergence of a new kind of “shortened” LPC which if flexible enough to allow
Frances Burton, MA, LLM, Barrister,
bar graduates to work while studying,
Mediator, former Tribunal Judge and
could help relieve the bottle neck and
“The change
enable a more socially diverse group of
Research Fellow, said:
in regulations enables talented bar
students to practice law.
students to take a proactive approach
Professor
to moving their careers in the right
Faculty
direction to bring the added value
International
of their Bar backgrounds to finding
Metropolitan
employment on the other side of the
“Responding to the change in the
profession.”
SRA regulations will enable many bar
Robert of
McKeever,
Law,
Dean,
Governance
Relations
&
at
London
University
said,
graduates to realise their ambition and Owsun Abebrese BA, LLM, Barrister,
enter the legal profession via a Plan B.
Academic
and
Talented bar graduates from a wider
Immigration Judge, said: “There are
social background whose legal career
more
has been in limbo have now been given
Leader
Training
in
Contract
Law
positions
available than pupillage vacancies –
another option”.
this is a fact. He went on to say,” Everyone is Bar students are ideally placed to take
committed to supporting diversity in
advantage of dual qualification to give
the legal profession, so I welcome the
them a head start in securing a training
initiative shown by the SRA.”
contract. Many will consider entry into the legal profession via this alternative
London Metropolitan University appears
route now that the SRA have relaxed
to be the first LPC provider to have
their regulations. This is an opportunity
acted on the change in regulations and
not to be missed.”
offer a shortened LPC exclusively for bar graduates.
Professor Gus John
13
14
the barrister
“The more extensive a man's knowledge of what has been done, the greater will be his power of knowing what to do.� British Prime Minister, parliamentarian, Conservative statesman and celebrated author Benjamin Disraeli is perhaps not best known for his pithy, apposite, quotes on the reasoning behind carrying out a comprehensive disclosure exercise in litigation, and yet from beyond the grave his words must echo through disclosure service providers on a daily basis. By Mike Taylor, barrister and director, i-Lit Paralegal
T
he
headline-line
of
a reference to proportionality in it's
31.5 (3) begins the changes by stating
couldn't
opening paragraph as well as another
that;
be more appropriate
mention
a
The process will begin not less than
when
comes
specific reference to enforcing the rules
14 days before the first CMC when
the
to ensure that case are dealt with justly
each party must file and serve a report
purpose of disclosure
and proportionately. This is an important
verified by a statement of truth, which -
exercises. Of course if we all followed
change. It sets the tone under which
(a) describes briefly what documents
Disraeli's advice to the letter we'd
all subsequent rules are read and it
exist or may exist that are or may be
spend even larger amounts time and
emphasises the need for proportionality.
relevant to the matters in issue in the
money reading and re-reading all of the
The change may be small but it certainly
case;
documents that are under the control
seems to refocus the entire CPR in the
(b) describes where and with whom
of clients. Very sensibly we have the
spotlight of proportionality.
those documents are or may be located;
this
to
article it
describing
of
proportionality
and
Civil Procedure Rules and in particular
(c) in the case of electronic documents,
parts 1 and 31 to help us temper our
Rule 31.5 is where what has changed is
describes how those documents are
disclosure vigour with proportionality.
just as important as what hasn't.
stored;
The Civil Procedure Rules, in common
The things that haven't changed are
Documents
with all complex codified procedures,
that that an order for disclosure is still
Practice
occasionally need some fine tuning and
an order for standard disclosure unless
solicitors to prepare an appropriate
April 1st 2013 will see the 60th update
the court directs otherwise and the
response to this requirement.
to those rules since they came into force
court can still dispense with or limit
(d) estimates the broad range of costs
in 1999.
standard disclosure and parties can still
that could be involved in giving standard
agree to dispense with or limit standard
disclosure in the case, including the
The 60th update, amongst other things,
disclosure. The new rule repeats the
costs of searching for and disclosing any
turns it's gaze on disclosure and in
previous rule in its entirety.
electronically stored documents; and
and
The changes are important they describe
This is potentially a complex and
emphasising the role of the judiciary in
a new process for ensuring that parties
detailed requirement and the one which
ensuring that disclosure is carried out
agree the way in which disclosure is
will almost certainly cause the greatest
proportionately.
carried out and emphasise that the court
amount of problems. Parties will almost
can force parties to complete disclosure
certainly prepare these cost estimates
exercises in a proportionate way should that become necessary (35.8 (a) - (f))1.
using different assumptions about what
Using the questions found in Electronic Questionnaire
Direction
31B
found will
at
enable
particular bringing the costs associated with
disclosure
under
control
WHAT'S THE DIFFERENCE? Rule 1.1, the overriding objective, has been updated to specifically include
should and shouldn't be included. Areas of dispute will include (but won't be
the barrister
limited to);
15
8. How documentation is exchanged
that order to be made under 31.5 (7) (i.e.
between parties.
an order other than standard disclosure)
1. How data is collected
Parties who are pushing for a particular
parties would do well to demonstrate in
2. Which Service provider completes the
method of disclosure (either standard
their report that standard disclosure is
data processing (all charge in different
or otherwise) will very easily be able to
disproportionately expensive given the
ways and at different levels, a recent
produce a report, quite appropriately
value of the claim. Rule 31.5 (8) simply
case I was involved with had quotes
verified by a statement of truth, which
gives the court to the power to give
ranging from 11k up to 57k for exactly
outlines the pricing scenario they wish
directions as to how disclosure is given
the same work)
to present to the court and which they
(see above).
3. Whether the filtering assumptions
feel is most likely to produce the menu
used to arrive at the pricing estimate
option (see below) that most suits their
Additionally under 31.5(4) if parties
are fair
requirements.
have agreed to exchange the Electronic
4. How much lawyer time is involved in
Documents
Questionnaire
found
at
arranging the external service provider
(e) states which of the directions under
PD31B then that questionnaire should
5. What document review platform is
paragraphs (7) or (8) are to be sought.
be
used and how many people need access
Whilst the presumption is still heavily in
outlined
to that platform.
favour of standard disclosure it would
documents questionnaire is still not
6. How long data needs to be hosted for.
seem that parties can request or the
compulsory
7. How documentation is reviewed and
court can order any of the provisions
will provide parties with the ability to
what assumptions (around speed, price
under 31.5 (7) and (8).
complete the new budget appropriately.
and use of technology) have been used to arrive at that pricing.
appended at
to
31.5(3), however
report the
found
electronic
completing
it
The requirement to meet the opposition It would seem to follow that in order for
to seek to agree a way forward for
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16
the barrister
disclosure (which is in accordance
documents on which it relies, and at
the identification of the documents that
with the overriding objective) has been
the same time request any specific
relate to an issue may require parties to
elevated from Practice Direction 31B
disclosure it requires from any other
examine all of the documents in their
to the rule (31.5 (5)) and the ability of
party;
control (depending on how the parties
the court to approve an order agreed
documents are stored).
between parties without a hearing is
To disclose the documents that you
(d)
also included (31.5 (6)).
rely on you first need to know what
disclose any documents which it is
documents you have available to you
reasonable to suppose may contain
Perhaps the most talked about aspect
(as Disraeli noted, “To be conscious that
information which enables that party
of the 60th update (in relation to
you are ignorant of the facts is a great
to advance its own case or to damage
disclosure) has been the "menu" option
step to knowledge.�) and until lawyers
that of any other party, or which leads
for disclosure. However as we have
have had an opportunity to investigate
to an enquiry which has either of those
already seen the presumption of the
the documents under the control of the
consequences;
rules is still that disclosure will be
client they can be in a very real way be
"standard" disclosure and that parties
"ignorant of the facts" and so not aware
This is the old "Peruvian Guano" test. I
are required to produce budgets for
of what documents that they actually
will leave any comment to this to Lord
standard disclosure.
rely on. This potential order seems to be
Woolf in the report which first gave
aimed at circumstances where a party
rise to the Civil procedure Rules, at
However 31.5 (7) does give a range of
may, for instance, have a very tight core
paragraph 17 of chapter 21 of Access to
options other than standard disclosure.
bundle of evidential documentation that
justice he states;
It must be assumed that whilst in theory
it doesn't think will be improved on by
these options are available in any case
requests for specific disclosure by the
"17. The result of the Peruvian Guano
and at any time in practise it would seem
opposition.
decision was to make virtually unlimited
to be the case that parties are going
an
order
that
each
party
the range of potentially relevant (and
to have to demonstrate to the court
The problem with this does seem to be
therefore
that the presumed form of disclosure,
that parties are opening themselves up
which parties and their lawyers are
standard, is in some way not compliant
to unknown specific disclosure orders
obliged to review and list, and which
with the overriding objective (i.e. that
(which will presumably arise out of
the other side is obliged to read, against
standard disclosure is either "unjust" or
examination of their core bundle and
the knowledge that only a handful
disproportionate to the value of the claim)
their own documentation) and so an
of such documents will affect the
for the menu options to be really given
argument for this option on the basis
outcome of the case. In that sense, it
serious consideration. Proportionality is
of proportionality will be difficult. Given
is a monumentally inefficient process,
certainly going to be the door that most
that parties are also very likely to look at
especially in the larger cases. The more
litigators are likely to push against in
all documents in their control that may
conscientiously it is carried out, the
an attempt to dispense with standard
be relevant to the case it would be more
more inefficient it is."
disclosure not least because the budget
cost effective to draft a detailed standard
It would therefore seem unlikely that this
for standard disclosure (demonstrating
disclosure protocol than to request this
order will produce a more proportionate
its disproportionate nature) will already
option which is potentially open ended.
result than standard disclosure.
have been drawn up.
(c)
an
order
that
directs,
discoverable)
documents,
where
practicable, the disclosure to be given
The final menu option is;
The "menu" under 31.5 (7) has 6 options
by each party on an issue by issue basis;
(f) any other order in relation to
however one of the options is standard
Issue based disclosure that limits itself to
disclosure that the court considers
disclosure (option (e)) and another is
a simple order that limits disclosure to
appropriate.
to dispense with disclosure altogether
documents relating to a specific issue or
(option (a)) and so really there are only
issues may help to reduce overall costs.
There was, prior to the publication of
4 "new" disclosure options. They are;
However it is difficult to tell if it will
the rules, some speculation about a
31.5 (7)
actually assist in producing a disclosure
"keys to the warehouse" option arising
(b) an order that a party disclose the
exercise which is more proportionate as
under this "catch all" rule. However
the barrister
with standard disclosure remaining as
will remain standard disclosure.
the presumed method of disclosure it
17
North Yorkshire, DL10 6BG
would seem inconceivable that a situation
Finally lawyers would do well to take
E-mail: info@i-litparalegals.co.uk
where, parties simply hand over all of
heed of Disraeli for a final time, when
Phone: 01748 810221
their documents to the other side would
he said;
end up being more closely attuned to the new overriding objective, could arise.
“As a general rule, the most successful man in life is the man who has the best
Conclusions
information.”
With the exception of 31.5 (3) (a)-(e) the new rules would seem to affirm
That that does not just apply to the facts
old rules and elements of the existing
of a matter but also the way in which
practice directions. The options under
modern standard e-disclosure exercises
31.5 (7)
can be carried out quickly, predictably
more
would generally seem to beg
questions
than
they
answer.
Clients continue to drive for lower and
1 It could be argued that the principle established in Mueller Europe Ltd v Central Roofing (South Wales) Ltd [2012] EWHC 3417 (TCC) (30 November 2012) confirmed that the courts have always had much the same power.
and at low (or at least proportionate) cost.
more predictable costs and with an e-disclosure industry which is set up to
Mike Taylor
service standard disclosure it seems to
i-Lit Paralegal
be an obvious truism that the most cost
Rushwood House,
effective, predictable form of disclosure
Richmond,
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18
the barrister
Clipping the wings of Russian litigation in English Courts Arthur Dedels, of Zaiwalla & Co Solicitors in London, considers the prospects of Russian litigation in English Courts
O
f
the
50,000-
revealed and the big names which are
of the parties the right to commence
in
aired in the course of English litigation.
litigation in the Courts of any competent
London, only a few
For these reasons, and in the light of
jurisdiction. With regard to the latter
hundred
lay
recent legislative and judicial activity in
right, the Presidium of the Supreme
claim to speaking
Russia in conjunction with statements
Commercial
Russian. This lexical
from some public figures, the future of
contrary to previous judicial practice,
limitation has not, however, prevented
Russian litigation in the English Courts
that the clause was invalid because it
an avalanche of Russia-related cases
does not look too bright.
breached the balance of rights between
odd
lawyers can
appearing in the English Courts over
Court
of
Russia
held,
the parties. The Russian Telephone
the past few years. It is estimated that
Anton Ivanov, Chairman of Russia’s
Company was therefore able to issue a
over 50% of the cases currently passing
Supreme Commercial Court, opined
claim in the Russian Court even though
through the Commercial and Chancery
recently
Petersburg
the contract did not provide for it to have
Divisions of the English High Court
International Legal Forum that “Russia
this right. Importantly, this decision
relate to Russia in some way. Given this
should guarantee its citizens and entities
sets a precedent which will have to be
pattern, it is unsurprising that many
protection from the unfair competition of
followed by all lower Courts in Russia.
observers are wondering whether the
foreign judicial systems.” He went on to
English Courts will continue hosting this
suggest that the Russian Courts should
The most obvious advice for anyone
inundation indefinitely.
be empowered to disregard judgments
dealing with a Russian party but who
from foreign jurisdictions, and to punish
wishes to avoid litigation in Russia is
The reasons why so many Russian
individuals who interfere with Russian
to avoid clauses that grant a unilateral
parties decide their disputes in the
interests overseas. The punishments he
right to commence proceedings in a
English Courts include the fact that
had in mind included freezing assets in
particular state (or in the Courts of any
English law is often stated to apply to
Russia and denying individuals entry
competent jurisdiction as in the above
transnational commercial transactions,
to the country. The Prime Minister and
case). One would also be well advised
the appeal of an uncorrupted English
former President, Dmitry Medvedev
to avoid similar clauses relating to
legal system, the independent and
condemned the “prejudiced competition
arbitration, as the reasoning of the
objective approach of English judges,
of foreign legal systems” and endorsed
Russian Court may well be the same as
freedom of speech and press and the
Mr Ivanov’s proposals.
in the case of litigation.
abounds in London.
It was not long before Mr Ivanov had a
Further, if you wish your dispute to be
However, the corollary of the comfort
chance to implement his vision in a case
heard in England, it is advisable in most
which
when
over which he was presiding as a judge.
cases to opt for arbitration rather than
litigating in England is that it can
The case concerned a dispute between
litigation. This is because there is no
cause problems for other Russians. The
the Russian Telephone Company and
agreement between the UK and Russia
above traits of the English legal system
Sony Ericsson Communication Rus, over
for the enforcement of judicial decisions.
can easily become a hindrance to a
a contract that granted both parties
Therefore, any remedy awarded by
Russian party. Another problem is the
the right to commence arbitration in
the English Court may be very hard
amount of information that is publically
London. However it also granted one
to enforce in Russia. It is only safe to
at
the
St
reliable legal advice and support which
some
Russians
feel
the barrister
19
commence litigation in England against
come out in the dispute, as well as the
President, Vladimir Putin, delivered
a Russian party when the decision
decision and its reasons, are not publicly
his annual Address to the Federal
sought can easily be enforced in the UK
available. Thirdly, the right to appoint
Assembly. One of the issues he raised
or in other countries with which the UK
an arbitrator or a panel of arbitrators
was the challenges faced by the Russian
has an agreement on enforceability of
allows the parties to choose experts
legal system. Mr Putin was concerned
judicial decisions. This is the case, for
in their field of business. This ensures
that “according to some assessments,
example, when the ultimate goal is to
that the arbitrator fully understands the
nine out of ten major transactions made
gain financial compensation and the
underlying issues, and often eliminates
by major Russian companies are not
Russian party’s assets are located in the
the need for expert witnesses. Fourthly,
regulated by Russian laws” and gave
UK. In contrast, it is always safest to opt
decisions of arbitrators are legally
instructions to the Government to make
for arbitration when a Russian party
binding; the parties can and often do
proposals that will make a difference
is involved, because both the UK and
agree that there can be no appeal from
in this regard. This clearly shows that
Russia are signatories to the Convention
the final decision. At that time, the
not only is Russia seeking to bring home
on the Recognition and Enforcement of
decision can only be made subject of an
litigation involving Russian parties, but
Foreign Arbitral Awards – known as the
appeal in Court, and then only if there is
is also looking for the ways to make
"New York" Convention.
evidence that the tribunal did not have
Russian law applicable to these matters.
the right to make its award, or that there
-
Arbitration is a form of alternative
was serious irregularity on the part of
Arthur Dedels, Zaiwalla & Co in London
dispute
the tribunal.
T: 0207 312 1000
resolution.
As
opposed
to
traditional litigation in a state Court,
E:arthur@zaiwalla.co.uk
where disputes are decided by judges,
Finally, when it comes to choosing a
in arbitration the parties to the contract
place to arbitrate, London has always
appoint an arbitrator themselves. The
boasted the reputation of being the
Arthur Dedels was born in Latvia, but
parties may also want a dispute to be
world’s most reliable forum. London has
his mother tongue is Russian. Having
heard by a panel of three arbitrators.
long been considered the commercial
finished
In this case each party appoints one
capital of the world and England has
England and obtained a BA in Law with
arbitrator, and a chairman arbitrator
a very well-developed legal system
first class honours and a distinction in
is appointed either by the arbitration
with highly experienced and skilled
Masters in International Commercial,
centre where the dispute is being
legal advisors and judges. Many retired
Corporate and Maritime Law. Arthur
heard or by the two party-appointed
judges and senior legal advisors become
mainly works with the firm’s Russia &
arbitrators.
arbitrators. Therefore, the traditions
CIS desk assisting clients from all over
and expertise of the English legal system
the world in CIS related cases.
W: www.zaiwalla.co.uk
school,
Arthur
moved
to
Apart from enforceability in Russia,
are reflected in English arbitration.
there are several other features of
Moreover, London has a very highly
Zaiwalla & Co. Solicitors is a niche
arbitration which are usually considered
regarded Commercial Court and the
London
to be advantageous in comparison with
UK Arbitration Act 1996 allows the
international
litigation for a party whose true intention
Commercial Court Judges to keep an eye
and litigation.
is to ensure a fair trial.
on the arbitration process in London, in order to maintain the integrity of
Firstly, arbitration is usually cheaper
London International Arbitration and
and
ensure that arbitrations are conducted
much
faster
than
litigation.
Secondly, arbitration is a form of private
in a fair manner.
dispute resolution. This means that the public and media do not have a right to
P.S.
attend the hearings, and the facts which
At the time of writing, the Russia
law
firm
specialising
commercial
in
arbitration
20
the barrister
Bar Pro Bono Unit – why bother? By Tom Copeland, Caseworker, Bar Pro Bono Unit
A
n
esteemed
The Unit is often the last resort for
can be particularly useful where a case
silk
at
the
individuals, they are not simply looking
requires a great deal of work or negative
funded
to get something for free. Individuals
advice has been provided. Whilst the
recently
must demonstrate they cannot secure
client instructs counsel directly, the
asked me why
legal aid, obtain a CFA or alternative
Unit is alive to the fact that dealing
members of his
funding or pay for assistance privately.
with individuals can be time-consuming
Chambers should undertake Bar Pro
Increasingly people are referred to the
for both counsel and chambers and
Bono Unit (‘Unit’) cases when they can
Unit by their local MP due to a dearth of
manages the individual through the
simply accept the offers of pro bono
free local advice agencies. The cases are
process.
work coming direct to their Chambers
often not ‘sexy’ and many individuals
from solicitors.
earn a fraction over the modest legal aid
The Unit can obtain support for a
threshold.
barrister from either a pro bono solicitor
publicly Bar
His question got me thinking. The
or legal executive, no barrister is
impeding cuts to legal aid will not only
Every Unit case has been reviewed and
expected to act as a pseudo-solicitor. The
affect around 650,000 people, it is
deemed worthy of assistance by a senior
Unit has a relationship with LawWorks,
going to place an immense strain on the
barrister, the Unit does not wish anybody
CILEX
entire profession from frontline advice
to waste precious time on a ‘hopeless’
Association and can seek support for
agencies to Lord Justices of Appeal.
case. The Unit receives around 1,300
counsel where appropriate. This can be
The Bar, especially junior legal aid
new applications each year and the
invaluable where a client is struggling to
practitioners, is not immune from this
Unit’s panel of specialist reviewers
manage his or her own case. It is also
pressure. So, in this difficult climate:
decide whether a case is worthy of
a welcome opportunity for barristers to
Why should barristers go the extra mile
assistance. If so, he or she identifies the
work with firms that might not usually
and volunteer with the Unit?
work, expertise and seniority required
instruct them or their Chambers.
and
Employment
Lawyers
in the particular case. Importantly, the This
article
intends
to
challenge
assumptions that may deter barristers
reviewers also ensure that the Unit
Many barristers find a Unit case develops
selects cases fairly and consistently.
them professionally, whilst this is not
from taking on Unit cases and set out
the objective of the Unit it is a welcome
why it is crucial the Bar’s commitment
Volunteer barristers are only instructed
additional benefit for volunteers.
Any
to pro bono work must remain strong.
to undertake a specific piece of work,
barrister can get a flavour of Direct
In short, the Unit’s framework to
thereby reducing the danger that a case
Access under the Unit’s licence. Often
facilitate pro bono cases for the Bar
can spiral out of control and take up
volunteers spend most of their time
ensures the most deserving individuals
an unreasonable amount of time. Once
representing the bank, the landlord or
and organisations benefit from the finite
the specific piece of work is complete,
the employer so a Unit case throws up
goodwill of the Bar in a co-ordinated
the client requests further assistance
different challenges and takes them out
approach.
from the Unit not counsel. This ‘buffer’
of their comfort zone. Occasionally, pro
the barrister
bono advice enables an individual to
public good and striving to ensure access
obtain public funding or a CFA. If this
to justice fearlessly; now more than ever
happens everybody is a winner and the
before the Unit requires its members
Unit acts as a valuable safety net.
to stand up, put on their raincoats and brave the storm.
21
The esteemed silk
The legal sector is in the midst of a storm
who asked why barristers should bother
with the Bar weathering challenges
already has.
posed by legal aid cuts and increased competition. The Unit operates within the eye of this storm, it attempts to accommodate the needs of the Bar and frontline advice agencies whilst ensuring the most vulnerable and deserving individuals
receive
legal
assistance
that matches that which a privately or publicly funded client would receive. The Bar has a history of working for the
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news
22
the barrister
Bar Council calls for proportionate regulation in response to LSB’s business plan The Bar Council, which represents barristers in England and Wales, has called for proportionate and financially responsible regulation in its response to the Legal Services Board’s (LSB) draft business plan for 2013-14. In its response to the LSB, the Bar Council emphasises the fundamental importance of proper regulation to ensure that the justice system works in the public interest. However, it has voiced concerns about the costs and scope of the LSB’s plans, which do not seem to take sufficiently into account the cuts that the legal profession currently faces and the increasing financial pressures under which it operates. These concerns were highlighted by a recent Freedom of Information request, which disclosed that £21,367 was spent on the recent LSB
publication which looked into the Cabrank rule. The Bar Council has serious reservations about this particular piece of research, the need for which is not clear. There is particular concern that so much is being spent on research that the Bar Council believes is of questionable quality and which the LSB itself indicates will not result in any sort of consultation. Maura McGowan QC, Chairman of the Bar, said: “Nobody can question the importance of proper regulation. However, at a time when most Government departments have to reduce their expenditure, the oversight regulator does not appear to feel the same pressures. We must seek to ensure that the profession is not unnecessarily burdened by the weight and cost of regulation. It is widely recognised in Government that small businesses need to be free from excessive
red tape. As a profession of small businesses, this should also be true of the way in which the Bar is regulated. “The LSB has achieved a great deal since its formation, for which it should be commended. But over the coming year, it ought to focus on its core duties of regulatory supervision and avoid mission creep and duplication of what is already being done by front-line regulators. “The Cab-rank rule report was just one example of this worrying trend. If the driver was better to inform the LSB itself of the background and application of this rule, it must be said that there is a wealth of knowledge, expertise and material at the Bar Standards Board, as front-line regulator, which arguably should have been accessed before incurring new costs which have led nowhere.”
Leaked email shows CPS puts cost first, quality second when prosecuting serious crimes – bar leaders The Bar Council, which represents barristers in England and Wales, along with the Criminal Bar Association and Circuit Leaders have published evidence that the Crown Prosecution Service (‘CPS’) has adopted deliberate practices not to instruct the correct advocate for a given case if there is a financial interest to the CPS in keeping the work in-house. An internal CPS email reveals beyond doubt what the Bar has long thought to be the practice in terms of how the CPS instructs advocates, namely: 1. Complex, difficult or ‘messy’ cases requiring a superior level of expertise are briefed out to the independent Bar – especially if they are likely to be poorly remunerated, and 2. Cases which are weak or likely to be particularly profitable are
to be kept in-house, which will result in misleading figures as to how cost effective in-house CPS advocates are. Maura McGowan QC, Chairman of the Bar Council, also speaking on behalf of the Criminal Bar Association and all the Circuit Leaders, said: “The public interest demands that the correct advocate is instructed to prosecute a case based on skill and the complexity of the case. Today, we are able to show, with incontrovertible evidence that the CPS is deliberately acting against the public interest and the best people are not being used to prosecute serious crimes. “The emergence of the CPS in-house advocate and the focus on cost and budget rather than quality of advocacy is a serious blow to the criminal justice system. We would never have known for certain that this practice was going
on, without the evidence that we are publishing today. “The public and the Bar might justifiably believe they have been misled. “Both Michael Turner QC and I have informed the Director of Public Prosecutions on the topic. He has offered his apologies and has stated in terms that this communication was unknown to him or anyone in his office and does not represent any general policy. He has promised a full investigation. “We await that investigation to see whether the stated method of instruction in the attached email is indeed limited to the five North London Courts or if the notion of dividing work with cynical disregard for standards is more prevalent than we have been led to believe.
the barrister
23
news
Bar Survey – Barristers set leading example in CSR and commit to further Pro Bono funding A survey conducted by the Bar Council, which represents barristers in England and Wales, has found that close to half the profession (42.4%), across all practice areas, regularly carry out voluntary legal pro bono work, in addition to paid work. It also found that 36.6% of the Bar regularly volunteer for non-legal charitable organisations. These findings show that despite the economic pressures many sections of the Bar are currently facing, the role that barristers play in society has enormous value, and is both socially responsible and publicly useful. Key findings of the survey include: • 42.4% of respondents regularly carry out voluntary legal pro bono work in their local community • Over a third of respondents dedicate time to working for charitable organisations • Almost a quarter of respondents
were found to devote more than one working day per fortnight to voluntary work, and almost a third give up more than one working day per month, and • The overwhelming majority of respondents believe that barristers have a responsibility to lend their skills and knowledge to those who cannot pay for them. The Bar Council also confirmed, as announced by Immediate Past Chairman, Michael Todd QC, last year, that as part of the Practising Certificate Renewal process, it has asked every practising barrister to make a £30 opt-out donation to support the work of the Bar Pro Bono Unit, in an effort to secure the vital charity’s long term financial sustainability. Maura McGowan QC, Chairman of the Bar, said: “The Bar has long demonstrated a strong sense of commitment and duty towards legal pro bono work, but
the findings of this survey show an astounding level of dedication at the Bar to those in society who need legal advice and representation, and to ensuring access to justice. “The private comments which respondents provided reflect the pressure which many barristers are under, but despite those pressures, they still place an enormous value on acting in a socially responsible and publicly useful manner. “It must be unheard of for 42% of a predominantly self-employed profession regularly to give away its primary services, free of charge, to those most in need. “The Government should take these findings into account when looking at further cuts to fees at the publicly funded Bar. This survey explicitly demonstrates the contribution the Bar makes to the taxpayer and to society.”
‘Risk-assessed’ supervision consultation launched Sets of chambers and barristers have the opportunity to influence how they are supervised by the Bar Standards Board (BSB) by taking part in a consultation exercise. The BSB is seeking feedback on a new approach that is designed to target resources at chambers and entities that are most likely to breach the Code of Conduct. Under the proposal, the Bar Standards Board would inform chambers that are identified as higher risk and signpost available support. Risk would be evaluated by taking into account matters like disciplinary history but also good practice measures that reduce the likelihood of noncompliance. The BSB intends to develop supervision as a credible and proportionate alternative to enforcement action when breaches do occur. This would mean that
enforcement is reserved for the most serious or persistent cases of noncompliance.
resort to enforcement action. There are strong public interest arguments in favour of this approach.”
In particular the BSB would like comments on:
Take part in the consultation email SIssop@barstandardsboard.org.uk
• How the BSB plans to gather evidence to determine which chambers or entities are at risk of breaching the Code of Conduct. • What the BSB should look for in terms of good practice measures that make non-compliance less likely. • When and how supervision should be used as an alternative to enforcement action. Head of Quality Oliver Hanmer said; “Our aim with the new approach to supervision is to develop positive relationships with chambers so we can work together to prevent problems arising. We are keen to collect views. The focus of supervision is on working with the Bar to achieve the common goal of compliance with regulatory requirements without the need to
1. Further information from the Bar Standards Board Press Office on 020 7611 1452. 2. The Bar Standards Board regulates barristers called to the Bar in England and Wales in the public interest. It is responsible for: • Setting the education and training requirements for becoming a barrister • Setting continuing training requirements to ensure that barristers' skills are maintained throughout their careers • Setting standards of conduct for barristers • Monitoring the service provided by barristers to assure quality, and handling complaints against barristers and taking disciplinary or other action where appropriate.
24
the barrister
Are You Sick of Diversity? By Caroline Newman LLM, non-practising solicitor and Principal Consultant at Lawdacity
W
hen I coach
black barristers and other so called
throughout my life especially during
barristers
minorities or protected categories. The
the formative years of my career.
I am often
reason I feel sick is that, in my humble
More importantly I know of many
challenged,
opinion, it does not accurately reflect the
many barristers and solicitors who
sometimes
feelings of frustration, disappointment,
experienced the same fate as I did and
f i e r c e l y,
confusion and anger felt by these groups
worst in many cases. People have been
about why diversity is important. Why
when they are on the receiving end of
left traumatised by their experiences of
should diversity matter if they want to be
discrimination or unfairness.
discrimination at the bar. In fact I was
a QC? As long as they can draft excellent
shocked (even though I shouldn’t be)
documents and are skilful advocates why should it matter if they have done little or nothing to promote diversity at the Bar.? Of course I listen patiently and when they are done I then explain to them why indeed having a diverse profession is important, primarily because the Bar is still the main feeder profession for members of the judiciary and indeed for Silk. When I work with solicitors and business leaders I emphasise the business benefits and I explain that Diversity is important because it is essential for businesses to attract the best talent. Once they have attracted them then the next challenge
to hear first hand, only last week, from Any better suggestions? Well I wish I could come up with a better or different word that would be acceptable to the majority population to describe the critical issue of treating people fairly and not discriminating against fellow human beings on the basis of characteristics they can do nothing about.
a very senior barrister in a relatively diverse
chambers
that
even
today
he is not being clerked and is totally unsupported by his clerks. This has been a feature throughout his career. He has to find his own work by developing relationships with solicitors by himself and hunt for his own work. Sadly this is a story that I have heard too
I wish I had another word to describe the
many times, yet each time I hear it I feel
slow loss of hope that they experience.
that physical sickness that I felt when I
I see the light going out in their eyes
was on the receiving end of racism, or
as they describe to me time after time
shall we say direct discrimination, or
how they feel when they are rejected for
..... a lack of awareness of the benefits
pupillage, often without even getting an
of diversity.
interview. They know they can do well, if given a chance. They know how hard
Day after day, evening after evening
they have had to work to get through
I
Well, like some of you, I too am sick of
the education system, to deal with the
conferences etc to be lectured on and
diversity, but perhaps for very different
negativity from some teachers and often
to discuss the topics of “Diversity”,
reasons.
their parents.
“Inclusive Leadership”, “Diversity and
I am sick of what I feel is a wishy washy
Why should I care? Because I am one
Whatever happened to the words racism,
term that has entered this debate. The
of those lawyers who has been (and
prejudice, inequality, discrimination or
term diversity attempts to describe
continue to be) on the receiving end of
unfairness? It seems that these words
the aspiration of female barristers,
discrimination. This has been a factor
have been replaced by words which are
is how to retain them.
attend
seminars,
workshops,
Inclusivity” or other similar issue?
the barrister
non-threatening
and
non-judgmental
and more acceptable to the majority. During my time in local government in the 1990s we attended Racism Awareness Training.
Today the course would be
called “Diversity and Inclusivity” or “Inclusive Leadership”. Here even the word diversity has disappeared and the word “Equality” has long disappeared as an aspiration.
to demonstrate their competency in
by their determination to try to change,
promoting
excellent
without, of course, compromising the
standard? Will it be the 800 or so QCs
integrity of the bar and continuing to
who have already been appointed since
recruit on “merit”. I have been inspired
the new system for the selection of QCs
by some of the creative ideas that go
came into existence?
beyond the compliance requirements.
diversity
to
an
These QCs have
ostensibly already demonstrated their commitment and evidenced their actual promotion
of
diversity
during
their
careers and, by implication, their ongoing commitment to improve diversity at the
I can see the rationale for this. Because if things are going to change we need to encourage, persuade, cajole, set targets, give reasons, and justifications as to why people should be given a fair chance in life. But are we denying that people are racist or sexist or homophobic? Are we denying the experience of the people on the receiving end of the behaviour by focusing on the needs and sensitivities of the majority population? Are we letting each other off the hook? Are we denying the opportunity for us to challenge our prejudices and unconscious biases? We talk about the “business benefits of diversity”. Whilst I am a proponent of the business benefits of diversity it saddens me that it appears that the personal pain, rejection and disappointment that some members of our profession feel is submerged or forgotten by the shift in focus away from the “victims” of racism, sexism and homophobia to focus on the “perpetrators” and their needs.
Bar. Surely with all this focus on diversity
better at the Bar?
Together we have discovered new ways of encouraging a wide range of applicants, ensuring that those applicants get a fair chance and when they are appointed put in place positive action programmes to help them to succeed.
change will come soon, won’t it?
Whilst also
ensuring that everyone in chambers Will it be the judiciary? The Government?
receives training and that they create
The Bar Council or the Bar Standards
an environment within which that pupil
Board? The BSB has recently revised its
or tenant can thrive. And, who knows,
Diversity and Equality code of conduct
with a fair allocation of work, coaching,
and has imposed deadlines on chambers
training, mentoring and sponsoring they
by which they should deliver on fairer
might go on to qualify for judicial office or
recruitment.
become a Silk themselves, one day.
By 31st January at least
one person on a recruitment panel ought to have been trained in fair recruitment? Then chambers have another 18 months to ensure that everyone who is involved in the recruitment of pupils have received
When I work with barristers we explore the reasons why diversity is important enough tor it to be a compulsory competency for appointment as a QC.
training. Barristers
have
been
attending
the
courses. My question is this. Is this yet another what many barristers have referred to as a “box ticking” exercise? Each time I hear that phrase from a barrister I have to resist feeling annoyed that this is how some of them regard the
Why is Diversity at the Bar Essential? I explain to my clients that it is important to the government and to society for there to be an increase in the proportion of women and ethnic minority judges on the bench.
process of ensuring that their colleagues
But
get an equal or even a fair crack at a
Commissioners have said repeatedly that
career at the Bar.
‘throughout the judiciary the numbers of
Yet I am encouraged when I work Who will lead change and make things
25
with some chambers (and individual barristers) who have been open to
the
Judicial
Appointments
women, ethnic minorities, those with a disability and solicitors do not reflect the pool of available candidates’.
exploring ideas about how they can
So what are the barriers to a more
Will it be the 200 or so barristers that
actually improve the diversity profile of
diverse judiciary? What can realistically
apply for Silk each year?
their chambers. I have been encouraged
be
They have
done
to
achieve
speedier
and
26
the barrister
sustained progress to a judiciary more
2.1 children then we will have an aging
2011 and set out 10 recommendations
representative of the people it serves?
population. In the United Kingdom
to increase the number of women on
women have 1.6 children. So there is a
boards.
It would appear that everyone agrees that “merit” must remain the sole criterion for selection as a judge. However, I have found that people often have different definitions of what constitutes merit. There can be little doubt that some people who merit judicial appointment are not joining the bench.
When Will Real Change Come?
pending demographic problem. We are limiting the opportunity to bring talent into business and into the law. There
from industry and the public sector
all chairmen of Financial Times and
for talent.
And when talented black
Stock Exchange (FTSE) 350 companies
or female (or both black and female)
should set targets for the percentage of
graduates are considering their career
women they aim to have on their boards
options will they continue to consider
in 2013 and 2015:
the Bar when they see a lack of diversity, a lack of opportunity to progress in their
McKinsey has researched and reported
careers and achieve their life goals?
on numerous occasions on the topics
Quite simply they will either not come to
of
the Bar or will leave and go elsewhere.
women
and
diversity,
employee
engagement and talent and innovation. They claim that diversity is essential for
Its main recommendations were that:
will continue to be strong competition
If there are some people who think this
FTSE 100 boards should aim for a minimum of 25% female representation by 2015 chairmen
should
announce
what
they intend to do to increase female representation
on
their
boards
by
innovation. The Bar could learn a great
might be a good thing as it is a return to
deal from the approach of industry,
how things were then I submit that they
both in the US and in the UK towards
would be mistaken. There is no room
all chief executives will review the
diversity.
for complacency. Young people simply
percentage of women they aim to have
will not wait.
on their executive committees in 2013
Is there a need or desire for
innovation at the Bar? Perhaps not. Perhaps the Bar is content for things
and 2015
to stay the way they have always been.
In industry there are various campaigns
However, I submit that the Bar (as the
to increase the number of women
solicitors profession is being forced to)
on boards. In 2010 the government
has to adapt and change. External forces
commissioned Lord Davies of Abersoch
including
to
technology,
immigration,
September 2011
find
out
what
was
The 30% Club
preventing
A 30% Club has emerged to work
legislation, have and will continue to
women becoming board members and
towards achieving these goals. So is it
disrupt the way we do business and
to develop a strategy to increase the
time for a 30% Legal Club? Why 30%
therefore the way we do law.
number of women on the boards of
you may ask? Apparently it is at 30%
listed companies.
that a minority community stops acting like they are a minority. So how would it
The Pressure for change
In September 2010 Lord Davies began
be if 30% of senior judges were female?
a consultation that included senior figures,
women
business
So is it time for quotas? No, they say.
Research shows that women will need
business
to have 2.1 children in order for the
leaders, entrepreneurs, executive search
population to grow at the current rate.
firms (headhunters), investors, women’s
If you restrict positions to white middle
networks and women who are just below
class men then your talent pool will be
senior board level. His report Women
At a recent seminar I was introduced
decreasing. If women have fewer than
on Boards was published in February
to
Quotas are against the law. lower standards.
Quotas
We only recruit on
merit.
the
concept
of
“Targets
with
the barrister
Teeth”.
Essentially, this means that
managers are set targets but are held accountable for achieving those targets. The accountability might include non payment of bonuses if the targets are not met. If you can’t stomach quotas then how about introducing “Targets
Reverse Mentoring At the same seminar I first learned about the concept of Reverse Mentoring where a junior member is teamed up with a senior member. The idea is for the senior member to walk in the shoes of the more junior person. They tell their
with teeth” for Chambers, the JAC,
seniors about their experiences and the
Chambers, the Bar, perhaps even for
kind of help that they need. Wouldn’t
the QC Appointments Secretariat. What
this be interesting at the Bar? I can just
might these teeth look like?
see the role reversal between a pupil
Well,
firstly chambers can make a public
27
and their pupil supervisor.
declaration of its intention to increase the representation of chambers.
By
doing this you put your reputation on
Caroline So how can we ever have change?
the line. You can’t fail on it or people
Newman
LLM
is
a
non-
practising solicitor, Principal Consultant at Lawdacity, author of Legal Gold and
will call you on it. It becomes as much
There are some Chambers who are
Chair of the African Women Lawyers
a part of your business goals as other
doing truly inspiring work in this area.
Association.
targets.
These Chambers could share their stories of success. This is one of those
Individuals could be held personally
times when the competitive nature of
responsible
for
the bar can give way to collaborative
achieving the targets. The tone from the
sharing of ideas. I often share success
top is also essential as this ensures that
stories (on a no names basis of course)
top people make it clear that diversity
in my work as I go from one Chambers
is important. The demand from junior
to another assisting them with this
barristers is there. If it proves difficult
complicated matrix of policies they are
to engage with the clerks then you can
required to introduce and implement.
and
accountable
find ways to reflect success in terms of pay or rewards.
The Bar can make paternity leave acceptable. Parenthood is a shared
McKinseys report that whilst there is
objective. Both men and women need
a shrinking talent pool of home grown
time off to take care of family activities
talent. 55% of the best graduates are women.
When deciding where they
want to work some of these women will be asking “is there anyone here who looks like me”? There is the problem of
and participate in family life. Chambers can help dads to articulate what they want and create a space for difficult conversations about family choices to take place.
the leaking pipeline. Women are leaving
Crucially, I think it is very important to
the professions. There are not enough
help everyone to understand how Black,
women in the pipeline to step into their
female and gay barristers feel and for
shoes. Urgent action is required now to
this to remain a key focus in all work
benefit the next generation.
around diversity.
28
the barrister
Language and law: reclaiming the human rights debate By Lucy Scott-Moncrieff, President, Law Society
L
anguage
matters.
government has a particular faith in the
“Yes we can” helped
power of language: the establishment of
propel Barack Obama
the Government's 'Nudge Unit', whereby
into the White House,
simple language and imagery is used to
just as “Read my lips
persuade people to make different and
1. Unfortunately,
no more taxes” did
'better' choices is evidence of this.
'European' features in both descriptions,
for the first President Bush. We all know
supremacy of parliament.
Taken individually:
because
this is a misperception that those
the different messages being given when
So, in this article I want to explore the
wishing to cause mischief can easily
we use strident instead of assertive, or
language of human rights to see whether
exploit. We can't change the words, but
stubborn instead of determined.
we can come up with some nudge words
we can point out that they are no more
and phrases to restore the confidence of
connected than Her Majesty and the
the public in laws specifically designed
performers of Bohemian Rhapsody.
I'm
particularly
interested
in
the
way language is used in the law, in
to
the wording of our laws and in our
collectively.
benefit
them,
individually
and 2.
conversations about the law, and the
Human rights are the rights we
have by virtue of being human, and they
ways these words can undermine the
In the wake of the report of the
belong to the virtuous and un-virtuous
very purpose to which they are being
Commission on a Bill of Rights and
alike.
put.
one of its conclusions: that there needs
Mencken hit the nail on the head when
to be 'better public education and
he wrote:
The
American
essayist
H.L.
My recent lecture at the London School
understanding of the present human
of Economics examined how our use of
rights structures and their effects'1. I
“The trouble with fighting for human
words can greatly influence how people
hope to respond to that invitation, and
freedom is that one spends most of one's
think about human rights law.
add to the necessary debate.
time defending scoundrels. For it is against scoundrels that oppressive laws
I'm desperately sad that the ideals and
The myths we need to tackle are:
are first aimed, and oppression must
benefits of the human rights project
be stopped at the beginning if it is to be stopped at all.”2
have been so badly misrepresented
1.
by people, some of whom clearly have
Court are part of the European Union.
their own axes to grind, but others
2.
of whom really ought to know better,
the bad guys over the good guys.
individuals or groups of people seeking
including governments, and including
3.
to affirm their human rights who are
this government.
reflect our traditions and culture.
perceived as, and may well be, bad guys.
4.
This makes a good (and easy) story for
The European Convention and
Our human rights law favours
Human rights law does not
The European Court of Human
Much of the current debate focuses on
But just as words have been used to
Rights goes beyond its original remit.
newspapers and phone-in programmes,
vilify the human rights project, words
5.
The European Court of Human
so long as it is presented as a version
can be used to restore it. Indeed, this
Rights
unacceptably
of health and safety gone mad, and
challenges
the
the barrister
politically correct idiocy, rather than
sufficiently similar concept of fairness.
being presented, more accurately but
29
behaviour can lose someone the right to enforce all sorts of rights, as can lack
more boringly, as a decision on the
3.
It has been argued that human
of mental capacity to make responsible
oppressiveness or otherwise of the
rights are alien to our culture and
decisions. Enforcement of rights can be
actions of the state in relation to the
tradition, and in particular our tradition
curtailed if to do otherwise would be
individuals concerned.
that rights carry responsibilities.
to allow someone to act irresponsibly towards the rights of others, individually
I wonder if the words we use in talking
Well, yes and no.
or collectively, and the recent decisions
about human rights law may add to the confusion.
on freedom of religion are a good Most of the ECHR rights were articulated
example of this.
in England and the UK long before they Let's start with the word 'rights'. Rights
were in any other European country.
So let's speak about how our traditions,
sounds like entitlements, sounds like a
On the other hand, we do not have an
and heritage, and linking of rights and
sense of entitlement, sounds like self-
illustrious history in relation to equality
responsibilities underpin human rights
righteousness.
and minority rights and at least some of
law, rather than being at odds with it.
this does seem to derive from our JudeoThese
are
not
attractive
traits
in
Christian heritage.
4.
themselves and are even less so when
The European Convention is a
‘living instrument’ and designed to grow
it is perceived that those claiming the
For instance Article 1 of the Universal
with the societies in which the people
rights have little to justify any sense of
Declaration of Human Rights states:
it is designed to protect live and adapt
entitlement
And claiming rights also carries with
to changing circumstance. Of course it “All human beings are born free and
challenges parliament – which is why
equal in dignity and rights.”
some politicians are so unhappy about
it a sense that the person doing the
it – but that was always its intention.
claiming thinks that their rights are
But when Mrs Alexander, who wrote 'All
more important than the rights of the
things bright and beautiful'
law abiding, ordinary, well-behaved,
the verse
Conservative
majority of the population. 'I know my
“The rich man in his castle,
Churchill's 1951 government, and a
rights' is not how properly behaved
The poor man at his gate,
member of the British team involved in
people are meant to deal with situations
God made them high and lowly,
drafting the European Convention, was
requiring compromise, as so many
And ordered their estate.”
happy to assert that “the Convention
situations do.
she was undoubtedly writing in the
superimposes an international code
Christian tradition,
but hardly in
on our unwritten constitution”. And
And despite what the tabloids say,
compliance with either Article 1 of the
when the government in 1966 allowed
human rights law is alive to the need to
UDHR or Article 14 of the ECHR.
individual petition to the court it did so
included
balance conflicting rights. But 'Qualified
5. David
Maxwell-Fyfe, Home
Secretary
in
in the knowledge that Parliamentary
rights' sounds like you have to qualify
As for the criticism that human rights law
decisions would be open to challenge.
to get these rights, and it seems like
fails to link rights and responsibilities,
But this is nothing new.
its always the bad guys do. I doubt
this is simply untrue.
'proportionality', is a frequent topic of
For 800 years we have recognised the
conversation on the Clapham Omnibus,
The
so I suggest using the more familiar and
concepts
Convention of
is
saturated
responsibility.
with
Criminal
need to keep the power of government in check.
30
the barrister
In the thirteenth century the king
responsibilities,
was absolute ruler, but Magna Carta,
rights law, rather than being at odds
famous for articulating the rights and
with it.
freedoms of (some of) the population,
4.
also gave the barons authority to
with us and our society, to continue to
challenge bad King John if he went too
protect us.
far. The Bill of Rights did likewise with
5.
William and Mary, and the ECHR is
us from an over-mighty state.
underpin
human
Our human rights law grows
Our human rights law protects
therefore following a long and glorious tradition.
And, finally, our human rights law is not about foreigners, or prisoners, or
In a country like ours, with no
asylum seekers; it is about us, and how
entrenched laws to protect the rights
we think of ourselves, and what sort of
of the people against the power of the
a country we want to live in.
state, we have a particular need for protections that cannot be overturned
By using words we have a (cheap) way
through the ordinary parliamentary
of getting people to think differently
process.
about who does what and bring the reputation of human rights law back
International treaties, ratified because
to where it belongs. At the heart and
they reflect our values and priorities
foundation of a society we want to live
as a nation, serve this purpose, and
in and be proud of.
we should be proud that they do so and that we have governments that
1 A UK Bill of Rights? The Choice
recognise the value of limiting their
Before Us, Volume 1, p.176. For an in-
own power, however irksome they find
depth discussion of the Report of the
it.
Bill of Rights Commission, see Mark Elliot’s article in this issue.
So by unpicking these myths, we end up with nudge statements that:
2 H. L. Mencken, Baltimore Sun, July 26, 1920.
1.
The European Convention and
Court of Human Rights are no more connected to the European Union than the monarch is to Messrs Mercury and May. 2.
Our fundamental freedoms are
ours as of right and no-one, including the government, can unfairly ignore them. 3.
Our traditions and heritage,
including
linking
rights
and
the barrister
31
The Death of ProcureCo By Ian Dodd, Bar Consultancy Network
T
his year’s chairman
although a small number of, principally,
Perhaps now might be the time for the
of the Bar Council,
criminal sets had attempted to construct
Bar to begin thinking and preparing
Maura
McGowan
some sort of tendering body and were
for it rather than waiting until the last
QC, was recently
trying to attract interest in them; with
minute or, worse still, doing nothing as
quoted (The Times
little success.
some at the Bar firmly believe that they
Law
Section,
24
can overturn it? Laudable as it might
January) as saying that one of her main
Sadly, the details of the Bar Council’s
be it is also liable to be an unrewarding
challenges in the position would be “…
‘ProcureCo’ proposed structure were
hope given the state of the nation’s
the prospect of competitive tendering…”.
fatally flawed as most astute readers of
finances, the unending need for the
it readily saw. Apart from the fact that
government to cut costs and the total
As this is a potential game-changer for the Bar it is an opportune time to review the situation so far and look how the response to this challenge might be framed.
no-one had actually asked the LSC if they were prepared to offer contracts to
lack of the general public’s interest in or sympathy for the Bar.
such bodies the practical application of To underline the urgency for positive
it was impossible.
action a consideration of chambers’ First, a little history. In April 2010 the Bar Council published its notes on ProcureCos. This was followed, in June the same year, by the paper ‘The Future of the Bar’. Both were the culmination of work by the, then, Chairman of the Bar Council, Nicholas Green QC and were predicated on the imminent arrival of ‘Best Value Tendering’ and ‘One Case
However, Nicholas Green’s work did encourage a few, forward-looking and entrepreneurial workable
chambers
collaborative
to
build
agreements
which are now being used with a range of widely-differing clients. For some chambers, engaged in large-scale commercial work, similar arrangements had been in place with clients for some
One Fee’ from the LSC.
time. For most chambers, though, this That version of competitive tendering for legal aid work was cancelled by Ken Clarke in December 2011.
Until then
pioneering work stopped when Ken Clarke kicked the ball into the long grass.
finances might be illuminating. There can’t be a barristers’ chambers in the land, dependent on criminal work, that hasn’t seen its income fall with fee reductions, solicitors’ HCAs and the CPS ‘in-house’ chambers affecting them adversely. The new CPS prosecution guidelines will see even more work disappear. Given that about 80% of chambers are dependent on publiclyfunded work for between 20% and 90% of their income the importance of having new working arrangements with many clients cannot be understated.
there had been a deal of activity at the Bar to prepare for its arrival sometime in
Late last year the LSC, once again,
So, instead of fighting the unwinnable
2012. For example, the Bar Council said
promised the arrival and operation of
battle, the well-known and highly-
that there were “about 100 ProcureCos
BVT/OCOF for legal aid work and now
regarded intelligence and intellect of
being set up by barristers’ chambers”.
a consultation document is expected
the Bar might be brought to bear on
This was, probably, an exaggeration
sometime in the middle of 2013.
the matter of creating a viable future
32
the barrister
after the advent of BVT/OCOF. Or,
answer. That might well be the case.
time high and, by and large, they have
maybe, the Bar would benefit from
In which event we might also expect
left the Bar trailing in their wake with
doing it even if the unwinnable battle
that the structure they’ll use to effect
their far-seeing activities.
is, astonishingly, won. In any event,
their desires will be that which they
the longer-term war will be lost and
published
and
It could well be far too late for the
the Bar, acting now, might just end
exhaustive research and work went
Bar to leave their response to the
up with some very smart, flexible and
into
a
challenge of competitive tendering until
profitable joint venture vehicles, bulk
bidding procedure and two pilots were
the consultation document is published.
contracting agreements and other, long
scheduled for Greater Manchester and
Immediate action will bring positive
term beneficial arrangements.
Avon. This, surely, is the logical starting
results.
in
2010.
investigating
Extensive
and
refining
place for the Bar to begin to build their One of the obstacles to progress might
contracting vehicle.
well be that the Bar likes its status as a referral profession and wishes to
The working infrastructure of chambers
preserve that. How much better, though,
will need to be changed to accommodate
to do that with a guaranteed volume of
and respond to the different demands
instructions than to be reliant on them
bidding for and winning a contract will
arriving one at a time and, often, at the
bring. Time spent in reconnaissance
whim of a solicitor late in the afternoon
is
before the case? In order to get there the
of
Bar will need to consider, construct and
alternative strategies, would be time well
implement some significant changes
spent. Discussions with other chambers
to the way it works now. Times are
and, of course, solicitors, to find the
changing, for everyone, and many of the
best forward path might be encouraged
pillars of the historical foundations of
with a view to forging a sustainable and
the Bar are also being shaken.
profitable future for that part of the Bar
seldom
wasted
preparation,
and
a
including
process suitable
where legal aid income is important. Significantly, a recent report by the LSB, conducted by two eminent, and
Since the launch of ‘ProcureCos’, nearly
suitably qualified, academics reveals the
two years ago, many solicitors have
Cab Rank Rule for the obsolete and
risen to the challenge of the LSA. There
redundant device it is. In the world of
are nearly 300 applications for ABS
commercial bulk contracting there will
status being processed by the SRA. Few
be no room for such things and the
if any, are from barristers’ chambers.
supplier of advocacy will need properly
Solicitors have also embraced, with
to understand their relationship with
enthusiasm, energy and investment,
the supplier of work and act accordingly.
innovative and, often, technology-based
Some suspect the consultation on BVT/
initiatives to develop their businesses
OCOF will be no more than a charade
for a very different future. Merger
and that the MoJ already know the
activity amongst solicitors is at an all-
the barrister
33
It is now called the Bar Professional Training Course (BPTC)! By Mohammed Saleem Tariq, LL.B (Hons) Law (University of Liverpool), BPTC BBP Law School Holborn Introduction
The Change
T
he
Criminal papers; it has succeeded as becoming an additional examination in
The obvious change and the most blatant Bar
its own right to the tearing sadness of prospective BPTC students1.
Vocational
is the name. What worries students
(BVC),
more is the standards they are required
what was once the
to meet in order to graduate before
Should a student receive 90% in the SAQ
main
appreciating
difficulties
section and 59% in the section containing
students to fulfil their
involved with attaining pupillage. The
MCQ’s, will then have successfully failed
dreams of becoming
pass rate for today BPTC students
the paper. There is no aggregation of
Barristers, today hides in the shadow of
has increased by a discouraging 10%,
marks involved, unless what is being
a less student friendly regime. The Bar
meaning every student must now attain
sat is the Alternative Dispute Resolution
Professionals Training Course (BPTC)
the pass mark of 60% in all examinations.
exam which today takes a similar format.
introduces prospective students to a
Many students, those who come to the
A score of 60 % or above is needed on
grilling 12 months of brain zapping,
BPTC with distinctions and 2.1s in their
“both” sections to successfully pass that
teeth grinding and dream crushing set
degree could be deceivingly unalarmed
paper. What makes these examinations
of bullet proof examinations. What was
by this for a gasping second or two.
the most daunting of them all is the
every parents dream and every student’s
However, there are two surprises.
fact they are now centrally set by the
Course
pathway
for
the
further
efforts now face their rock in the road to becoming a Barrister.
Why Change
BSB, whom consider the work given to First
is
the
introduction
of
Short
students of every BPTC provider before
Answer Question’s (SAQ’s). Students
setting a terrifyingly challenging paper
will no longer be able to ignore the war
at the end of the year.
and peace of the Civil and Criminal Procedural Rules when revising. The
Whether BPTC providers are able to
The transformation occurred as recent
sleepless night of memorising which
make the journey less mind draining is
as 2010 and is still undergoing some
answer fits with a Multiple Choice
questionable. Taking the Opinion and
nip and tuck to achieve the very best
Question is archaic. Random pickings
Drafting module examinations in the
from its students. The changes were
and a lack of knowledge of these rules
BVC meant students had a full week to
recommended in 2008 by Derek Wood
will no longer suffice when hoping to
perfect every sentence, question and full
QC who chaired a working group that
scrape a pass in these exams.
stop. Having full access to a computer
carried out a review of the BVC and its
and their resources is nothing more than
recommendations were subsequently
The second surprise is that the Civil,
a fading hope for BPTC students. There
approved by the Bar Standards Board
Criminal
Ethics
is discretion to allow students to take
(BSB). The desire to induct and nurture
modules now require every student to
the Opinion and Drafting examinations
more than able students to become
attain the 60% pass mark in both sections
home, as this change never formed part
confident and able barristers was the
of the paper. For those BVC graduates,
of the 2008 recommendation.
paramount aim when introducing the
you read right. Professional Ethics is
make things easy now! Depending on
BPTC.
no longer a single MCQ in the Civil and
which provider the BPTC student is with,
and
Professional
Why
34
the barrister
the student will have a 3 or 4 hour and
and Professional Ethics examinations in
15 minute, hand written examination.
its first year of inception to now being
Opinion’s and Drafts would never be
centrally set by the BSB. This change
given by Counsel in handwritten form,
caused an uproar of student complaints
but ironically a course that teaches
after being introduced in 2011, which
students the working life of a Barrister
then reached the comforting ears of
decided not to incorporate this element.
the BPTC providers. Questions with
I assume computers would be too
multiple answers, questions that were
modern for use.
poorly phrased and questions outside of the taught material were reviewed with suggestive range of answers being
BVC students vs. BPTC students
recommended and accepted in some instances by the BSB. For students who
Is there a payoff? Would the surviving
may disappointingly fail to pass the
BPTC graduate find it easier to attain
BCAT test which is to be in place for
pupillage?
chosen
the class of 2013 need not lose grip of
over a BVC graduate? Can those BVC
their lifelong ambition. They may decide
graduates compete with the mind and
to pursue the LPC, should the changes
skills set of those that went through the
to the BPTC not leave a sour taste in
BPTC? With the number of pupillages
their hopes, and progress on to a less
going at an alarmingly low rate, and
intensive conversion course to cross
the
with
qualify as a Barrister. For the moment
each year that passes, there is a need
the BPTC may find itself going through
to choose the best candidate. However,
more changes as it finds it feet.
Would
competition
they
be
accumulating
things aren’t as black and white as they may appear. In the year of failing
A. Banfield & J. Welsh, ‘Transforming
to enter Chambers as a pupil, those
the BVC’, June 2010, last viewed on 11
BVC graduates may be found down the
December
road in the firm of a Solicitor, building
com/transforming-the-bvc/1004683.
practical experience and sharpening
article>
2012<http://l2b.thelawyer.
their skill sets. The aim for introducing the BPTC may be washed away when
1 It is worth noting at this point that the
the pupillage panel interview a BPTC
module Legal Research no longer forms
graduate with no experience in his back
part of the BPTC.
pocket and a BVC graduate with a year of practical experience in the field of choice.
Future Being fairly new, the BPTC has already stood witness to a change that saw the BPTC provider setting the Civil, Criminal
the barrister
35
The real ‘hunger games’ By Kent Alexander, General Counsel for CARE hit are Niger’s women and children, always the most vulnerable to poverty. Conflicts simmer on three bordering countries. And among many other challenges facing Niger, a catastrophic drought is underway.
D
riving from Niger’s capital Niamey to the town of Konni for five hours through the sand-swept, arid Sahel region, I listened to the audio book The Hunger Games. The novel opens with a scene of bleak poverty in a postapocalyptic town called District 12. Dirt, grime, threadbare clothing, scarce food. Looking out the window at the mudand-thatch structures and the gaunt, colorfully dressed women floating by my window, I couldn’t help but think Niger was District 12 on steroids. Here, people are experiencing ‘the hungry season’, and it is certainly neither a novel nor a movie. It’s very real.
According to a recent report over 10 million of Niger’s 16 million citizens will run out of food stocks well before the next harvest, expected around October. All families have cut back on their food consumption. Most who I met are down to one meal a day.
The country is on the proverbial brink. Without help, many will suffer irreparable physical harm; many will lose their lives. How economically poor are the villages we visited in western Niger? Mind bogglingly poor.
Still, I couldn’t help but smile about the difference people here are making in partnership with CARE. Having joined CARE as General Counsel just last April, this is my first trip to a region deep in the throes of crisis. This is poverty as I’ve never seen. The facts? Niger ranks 186th out of 187 countries on the UN’s Human Development Index, putting it in a dead heat with the Democratic Republic of Congo as the least developed country on earth. Most adults over 25 have precious little formal education, and an overwhelming majority are illiterate. Particularly hard
When we arrived at Ayyawane hundreds of people gathered for a welcoming ceremony. During the program, young children presented formal requests in envelopes to the group of visitors from CARE. Their number one request? Not toys, not new clothes, and certainly not a trip to Disney World. Drinking water. Water! This was especially striking because Ayyawane was by far the most ‘affluent’ of the villages we visited.
teristically pushing and shoving each other. The tail gate was open, and the driver stood beside our cooler containing a few leftover cold drinks from lunch earlier in the day. Philippe Leveque, the National Director of CARE France said, “Kent, this is the face of poverty.” Frankly, I thought he was overreacting a bit and said as much. After all, the day was broiling – over 100 degrees Fahrenheit. Of course the kids were elbowing in for a shot at a cold drink. Then I took a closer look.
The cooler was shut tight, and the driver was not handing out drinks at all. He was handing out a few of our empty cans and plastic bottles. The cans were fodder for tin toy planes and cars to use or sell. The bottles were to be used as receptacles for months down the road when the rains finally come. The throng of children only dispersed after a man swatted at them with a stick. Our trash was their treasure. So the uplifting parts of the visits? There were certainly many.
Then, at the end of our visit, I saw something that gave me a small but jolting idea of what poverty is like.
While in Ayyawane, we visited a garden made possible by five wells that CARE had dug through the years. Outside the garden stood a huge grove of trees, greenery rarely seen in most of Niger. The mayor told us they planted all those trees with support from CARE more than thirty years ago, when he was just 11. The grove now serves as a ready source of wood for energy and construction, which villagers maintain, planting new trees as they log.
As we headed to the car for our departure, dozens of young children crowded behind the Toyota and were uncharac-
In another village, Bangoukoirey (please don’t ask me to pronounce it!), I saw one of CARE’s savings p.38
We toured Ayyawane and spoke with the mayor and other people about their lives and their very modest dreams.
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p.35 and loan groups in action. Each of the three dozen or so women members stepped forward to contribute their week’s savings of 500 CFA (1 U.S. dollar) or less into a pooled fund, which they could later use to make and collect small development loans. The president of the group, colorfully dressed in a green, black and blue striped robe with a purple scarf, told me she had been saving for six years. During that time she had used the loans to buy poultry, two oxen and a cart, and had repaid all the money with interest. But life was still hard. With the drought underway there is no longer money for the future,
But they cannot do this without money to buy tools and without food to sustain them. And unfortunately food prices have soared since last fall.
and not enough for food and water now.
they see fit. A 36-year-old mother standing in line spoke of how critical the payments are to support her and her four children. Her husband is in the somewhat more prosperous Nigeria (though still a lowly #156 out of 187 countries on UNDP’s Human Development Index), scavenging for work to send remittances home, although finding work is never guaranteed. On the other hand, the lack of food and water in Niger is very real.
Back on the road, in the village of Maijanjaré we went to a rock-hard, barren field with hundreds of three-meter-wide half-moon craters that stretched as far as the eye could see. It reminded me of some television special featuring landscapes pocked with mysterious patterns allegedly left by some ancient culture or extraterrestrials. But in this case there was no mystery. CARE’s Project Manager Nouroudine Pereira told us that the villagers, ingeniously, dug the craters on a gently sloping plain so that when the rains finally do come the water will not simply wash over the baked terra cotta landscape and flood the southernmost point. Each crescent captures the rainwater and becomes a garden, and the villagers harvest millet and other crops to sell and to store for the next hungry season.
Enter CARE. Nouroudine explained the details of CARE’s ‘cash-for-work’ program, and after showing us the field brought us over to the line of villagers collecting their payments. CARE pays each villager a very modest sum to dig 2 craters per day into the concrete-like soil and provides the tools. This injects money into the economy, which people can use as
On the long drive back to the capital city of Niamey, I listened to the rest of The Hunger Games and watched more villages roll by. My mind wandered to the real life hungry season and the onset of a food crisis in Niger. Suzanne Collins’s book, compelling to most, seemed almost trite as I thought – and continue to think – about how to make the crisis in the Sahel compelling to all those who will never see it firsthand. How to avoid a severe crisis like what we are now see-
ing in the Horn of Africa. How to preserve the development progress made to date through the efforts of CARE, other NGO’s, the UN, the government and the people. How to help the adults and children of the Sahel with such strong spirits and determination avoid going beyond the tipping point, when no amount of aid can bring them back.
For more information or to donate to the West Africa Food Crisis visit www.careinternational.org.uk
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