Page 1

the barrister



9 th A pril - 24 th M ay 2013

E st . 1999

Easter Term ISSUE

ISSN 1468-926X

Judicial Diversity – working for change


There are many truisms about a career in

that I should consider becoming a Deputy

the law, none more obvious than the fact


that we will all be faced, often on a regular


basis, with competing priorities for our


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



price £2.80

limbo for would-be barristers has been opened 11 Career up with a new route into the legal profession


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



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


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


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


Bar Council calls for proportionate regulation in response to LSB’s business plan


‘Risk-assessed’ supervision consultation launched

0845 5190 176 Publishers: media management corporation ltd Design and Production: Alan Pritchard email:



the barrister

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the barrister


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







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,


years. At the last count there were

secrecy’ and if your lawyer asks any


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


involvement in - for example - their






government Advocates”






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


the barrister departments

government agency already implicated



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



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



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


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


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.


and Security Bill was published in


will never see.


















October 2011 Amnesty described the Instead, government ministers have

Tim Otty QC, one of the lead counsel

Bill as intending to make “drastic


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



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


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


these (and










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 media/downloads/Atkin_Memorial_ Lecture_Final_version.pdf Amnesty report – http://www.amnesty. org/en/library/asset/EUR45/014/2012/


en/546a2059-db83-4888-93ba8b90cc32a2de/eur450142012en.pdf J&S Bill – bills/2012-13/justiceandsecurity.html Clarke - news/article-2151486/Ken-Clarke-Mysecret-justice-plans-broad-Mail-publicservice-fighting-them.html?ito=feedsnewsxml#axzz2K3k6k5Ei Neuberger C/App - http://www.reprieve. Word_-_Al_Rawi_v_Security_Service-_ Final.pdf Otty - 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









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


of judicial office, and where you can

committed to - both personally and in



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 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





I believe that more diversity among





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


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


levels of the judiciary, and candidates

coming years.

from Black, Asian and Minority Ethnic




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



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



who are completely indistinguishable on

or Minority Ethnic background. These

in partnership with the Commission

merit, selection panels will be allowed




the barrister


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


Helen Grant MP, Justice Minister

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the barrister

Rape stats, Savile and a Royal Commission By Felicity Gerry QC, 36 Bedford Row


his year I spent 2



place in private, with restrictions on

months in Australia

Peter McClellan AM said “The Royal

naming individuals and on reporting.

arriving just as the



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,



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



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



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


exposed far more than they ever were


Not everyone is a rapist and it is

in the past.

encourage victims to come forward,


Launching the terms of the Royal

some parts of the proceedings will take

is reliable and the right suspects are

in has




Australia, been












the barrister


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



from a robust prosecution. In the UK

many years, the maximum sentence for



the law has been much improved and

indecently assaulting a female child was



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


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




importance and


of the is

the not






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


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



the barrister



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


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


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


publicly funded cases provide many of

problems litigants in person can present

those at the junior end of the Family

to practitioners at court. Litigants in

Bar with the bread and butter of their



practice. The disappearance of the

detailed knowledge of the substantive


majority of this work overnight in April

law relating to their case, and of the


2013 cannot fail to have a seriously

procedure to be followed at court,


deleterious impact on the careers and


livelihoods of all those in junior practice

longer than would otherwise be the









the barrister


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


or many years getting

toughening up the bar programme,




with the new BPTC replacing the Bar

outreach manager at Inner Temple,


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


allowing two attempts to pass and no

to look at who we’re attracting as a

in-course reassessment.

profession – we find talent wherever




The oversupply of young barristers has grown every year – there were at




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

taken the test have been far from

and the Russell Group than many people


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


this elite band. http://www.barcouncil.

dire warnings pronounced repeatedly

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


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







The barrister magazine cannot accept responsibility for information supplied by other parties, views expressed may not necessarily be that of the editor or publishers.


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


recruit more students from lower socio-


economic backgrounds into its ranks.

public funding may also help, as it is




very well-informed not only about the statistics but also the opportunities and

problem.” government



suspected there will be a further dip

scholarships. The progress the bar is



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".




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


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


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.



not going to take on people if there is

solicitors and legal executives looking

no work for them, and nor should they.

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




team – laid out his vision for the future

this will enable bar graduates to enter

of legal services. “We have got to open


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,






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


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


to moving their careers in the right


direction to bring the added value


of their Bar backgrounds to finding


employment on the other side of the

“Responding to the change in the


SRA regulations will enable many bar

Robert of











graduates to realise their ambition and Owsun Abebrese BA, LLM, Barrister,

enter the legal profession via a Plan B.



Talented bar graduates from a wider

Immigration Judge, said: “There are

social background whose legal career


has been in limbo have now been given







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



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





a reference to proportionality in it's

31.5 (3) begins the changes by stating


opening paragraph as well as another


be more appropriate



The process will begin not less than



specific reference to enforcing the rules

14 days before the first CMC when


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


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;



article it





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.


The Civil Procedure Rules, in common

The things that haven't changed are


with all complex codified procedures,

that that an order for disclosure is still


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


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


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



found will



particular bringing the costs associated with




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);


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


have agreed to exchange the Electronic

4. How much lawyer time is involved in





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.


used and how many people need access

Whilst the presumption is still heavily in


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


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


31.5(3), however

report the





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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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


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


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


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


decision was to make virtually unlimited

to be the case that parties are going






the range of potentially relevant (and

to have to demonstrate to the court

The problem with this does seem to be


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.









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


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


North Yorkshire, DL10 6BG

would seem inconceivable that a situation

Finally lawyers would do well to take


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



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


would generally seem to beg





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


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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





revealed and the big names which are

of the parties the right to commence


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



recent legislative and judicial activity in

right, the Presidium of the Supreme

claim to speaking

Russia in conjunction with statements


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


lawyers can

appearing in the English Courts over





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



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



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




reliable legal advice and support which




the barrister


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


the tribunal.

T: 0207 312 1000





traditional litigation in a state Court,

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


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. Therefore, the traditions

CIS desk assisting clients from all over

and expertise of the English legal system

the world in CIS related cases.






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


to be advantageous in comparison with

UK Arbitration Act 1996 allows the


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


ensure that arbitrations are conducted





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


attend the hearings, and the facts which

At the time of writing, the Russia








the barrister

Bar Pro Bono Unit – why bother? By Tom Copeland, Caseworker, Bar Pro Bono Unit




The Unit is often the last resort for

can be particularly useful where a case




individuals, they are not simply looking

requires a great deal of work or negative


to get something for free. Individuals

advice has been provided. Whilst the


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


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


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


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.




in the particular case. Importantly, the This





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.


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


from the Unit not counsel. This ‘buffer’

of their comfort zone. Occasionally, pro

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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.


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




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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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



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

• 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.


the barrister

Are You Sick of Diversity? By Caroline Newman LLM, non-practising solicitor and Principal Consultant at Lawdacity


hen I coach

black barristers and other so called

throughout my life especially during


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


opinion, it does not accurately reflect the

many barristers and solicitors who


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





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


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”,


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.




Inclusivity” or other similar issue?

the barrister




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,



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.




These QCs have

ostensibly already demonstrated their commitment and evidenced their actual promotion





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


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





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


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


with some chambers (and individual barristers) who have been open to




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


They have







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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


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


the Bar or will leave and go elsewhere.





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




they intend to do to increase female representation





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


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





September 2011





The 30% Club


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,



So is it time for quotas? No, they say.

Research shows that women will need


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


Quotas are against the law. lower standards.


We only recruit on







the barrister


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


firstly chambers can make a public


and their pupil supervisor.

declaration of its intention to increase the representation of chambers.


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






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.



These Chambers could share their stories of success. This is one of those

Individuals could be held personally

times when the competitive nature of



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.



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.


the barrister

Language and law: reclaiming the human rights debate By Lucy Scott-Moncrieff, President, Law Society




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:


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.






way language is used in the law, in


the wording of our laws and in our





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



one of its conclusions: that there needs

Mencken hit the nail on the head when

to be 'better public education and

he wrote:





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


by people, some of whom clearly have

Court are part of the European Union.

their own axes to grind, but others


of whom really ought to know better,

the bad guys over the good guys.

individuals or groups of people seeking

including governments, and including


to affirm their human rights who are

this government.

reflect our traditions and culture.

perceived as, and may well be, bad guys.


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


The European Court of Human

so long as it is presented as a version

can be used to restore it. Indeed, this



of health and safety gone mad, and



the barrister

politically correct idiocy, rather than

sufficiently similar concept of fairness.

being presented, more accurately but


behaviour can lose someone the right to enforce all sorts of rights, as can lack

more boringly, as a decision on the


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


and minority rights and at least some of

law, rather than being at odds with it.

this does seem to derive from our JudeoThese






Christian heritage.


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


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


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


balance conflicting rights. But 'Qualified

5. David

Maxwell-Fyfe, Home



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,


so I suggest using the more familiar and


Convention of






need to keep the power of government in check.


the barrister

In the thirteenth century the king


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,


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


William and Mary, and the ECHR is

us from an over-mighty state.



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


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


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.


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,





the barrister


The Death of ProcureCo By Ian Dodd, Bar Consultancy Network


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



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




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






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


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



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



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








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


before the case? In order to get there the


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







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


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



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.


is the name. What worries students


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




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






efforts now face their rock in the road to becoming a Barrister.

Why Change

BSB, whom consider the work given to First






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



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


no longer a single MCQ in the Civil and

which provider the BPTC student is with,





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



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



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.






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


road in the firm of a Solicitor, building


practical experience and sharpening



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


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.


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.



the barrister

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the barrister

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

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