The Pupil - Volume 5 by Oxford University Bar Society

THE PUPIL OXFORD UNIVERSITY BAR SOCIETY MAGAZINE

VOL. 5

Hilary Term 2022

TABLE OF CONTENTS

THE PUPIL ARTICLES Editor's Note

by Olly Hutton

Review of the Scottish Hate Crime Act 2021 by Bea Munro

Automating Hercules: Would 6 algorithmic legal reasoning advance the ideal of the rule of law? by Imogen Rivers Government Contracts and the Human Rights Act by Jonathan Powell A bleak picture from Bleak House: lessons from the Chancery Courts

by Rivu Chowdhury

Clause 2 of the Judicial Review and Courts Bill: Carting-off judicial review

IN CONVERSATION WITH DAVID WATKINSON

BIANCA BALMELLI

by Charlie Furniss

No-fault divorce: When, what and why?

by Rhys Duncan

Exploring the judicial system as a 18 novice: a roadmap for non-law students by Melissa Hussain

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EDITOR'S NOTE

FROM THE EDITOR I am delighted to be sharing with you the fifth issue of The Pupil magazine, Hilary 2022. As ever, the magazine is in two parts. The first features articles written by Oxford students on some of the biggest issues faced by the legal world today: from the threat to freedom of speech posed by hate speech legislation in Scotland, to a review of the new no-fault divorce law; from the likely effect of the ouster clause in the Judicial Review and Courts Bill, to the impact of algorithmic legal reasoning on the rule of law - our contributors have provided something for everyone. I am pleased to say that this issue of The Pupil is published in refreshingly unique circumstances. All four previous issues were published during the Covid-19 pandemic and, although it is not officially over, the lifting of all restrictions in February and the end of free mass testing from April signal a return to something close to normality. Nonetheless, the pandemic's repercussions continue to be felt. In this issue, we have comment on the vexed issue of government contracts, as well as a historical perspective on the current backlog in the criminal courts - a pre-pandemic problem exacerbated by lockdown restrictions. Speaking of the courts, we also have a primer for non-law students on the judicial system, written by one of your number. The second part of the magazine contains interviews with barristers. David Watkinson gives a fascinating insight into his forty-year career at the Bar, during which he was responsible for significant developments in housing and planning law, especially in relation to squatters, gypsies and travellers. And Bianca Balmelli offers a unique perspective, having previously practised in South Africa before completing her pupillage at Littleton Chambers in 2019. Thank you to the contributors for their insightful submissions, and to David and Bianca for being so generous with their time. I hope all readers enjoy what follows. I certainly enjoyed editing it. Olly Hutton, Editor of The Pupil

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REVIEW OF THE SCOTTISH HATE CRIME ACT 2021 BY BEA MUNRO The Hate Crime and Public Order (Scotland) Act 2021

enacted within the home: a substantial intrusion

has just passed through Holyrood and will have

into private life.

significant implications for freedom of speech and the protection of minority rights. It introduces a new offence 1

of “stirring up” hatred, and makes provision for the 2

Critics of the Act suggest that the Act is too vague 7

in what it considers “abusive” behaviour to be.

1 aggravation of offences by prejudice. The purpose of

The Act includes a “reasonable person” test to

the Act is to better protect minorities from hate speech;

attempt to improve clarity, but this obfuscates

instead it will have a “chilling effect” on speech.3

things further. The “reasonable person” test is

beset by the dilemma of community norms, which Part I of the Act makes the aggravation of an offence by

are not easily identifiable.9 Even if they were, they

prejudice a crime. The characteristics the Act uses are

are determined by a test of majority opinion which

“age, disability, race (and related characteristics),

only results in the tyranny of that majority and the

religion, sexual orientation, transgender identity and

neglect of minority views. This may be considered

variations in sex characteristics”. Part 3 of the Act

positive, as extremist views are filtered out.

creates the offence of “stirring up hatred against a group

However, the test ultimately fails to recognise the

of persons” based on an above characteristic. The broad wording of this provision raises questions as to what constitutes ‘stirring up’, and how ‘hatred’ is defined. The Act includes a plethora of conduct, including things communicated (through direct speech or media) and 6

things done. This can include sharing or showing the material to another and, crucially, extends to things

legitimate views that minorities may hold. The Act also fails to make clear what harm it criminalises. Offence may not be considered a harm: instead a normal part of civil society. Even if offence is designated a harm, that harm is not great enough to justify criminalising speech. It is

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therefore difficult to see how the Act balances the

but the Scottish Hate Crime Act is too imbalanced to

rights of minorities with freedom of speech.

resolve this dialectic.

Legislators clearly did not consider that the Act should be of minimal impairment: it must not limit

A final concern is that the law will marginalise

freedom of speech more than is necessary to achieve

minorities, including those who the Act intends to

its objective. As the Act lacks a clear harm which it

protect. If we consider Mill’s ‘infallibility principle’, it

intends to criminalise, it cannot succeed in being

is not through the restriction of debate that truth

proportionate.

emerges, but through the airing of all views, and these 13

being disproven. If views are not challenged because The main criticism of the Act is that it will have a 11

they never emerge, that does not prevent such views

“chilling effect” upon free speech. Although the

from ever being held, but rather entrenches existing

Scottish Justice Secretary Humza Yousaf contended

ideological silos. In a time of polarisation, public debate

that speech regarding gender-critical beliefs or the

is vital. The Scottish Hate Crime Act will only deter

struggle of the Palestinians would not be subject to

this.

criminalisation, the Act’s broad provisions fail to ensure this.

To conclude, the Scottish Hate Crime Act fails to balance the rights of minorities with freedom of speech,

Ultimately, it is not for the police to determine

and instead enhances polarisation and limitation of

ideological disputes. Hate speech legislation will

viewpoints. The risk of speech being criminalised is

always give rise to the conflict between the

now high. But, that this Act was ever tabled, no matter

protection of groups and freedom of expression,

passed, reflects a growing authoritarianism and lack of tolerance that should be feared.

[1] Scottish Hate Crime Act 2021, Part 3, s.4(1) [2] Ibid., Part 1, s.1(1) [3] Sumner, The Hateful and the Obscene: Studies in the Limits of Free Expression (University of Toronto Press, 2015) [4] Scottish Hate Crime Act 2021, Part 3, s.4(3) [5] Id, Part 3, s.4(1) [6] Ibid. [7] Gillies, ‘How the Hate Crime Bill defies Scottish tradition’ (The Critic, 23 March 2021) Available at: https://thecritic.co.uk/how-the-hate-crime-bill-defies-scottishtradition/ [8] Ibid. [9] Sumner (note 3) [10] Ibid.

[11] Joyce ‘A New Scottish Authoritarianism’ (The Economist, 1 November 2021) [12] BBC News, ‘MSPs approve Scotland's controversial hate crime law’ (11 March 2021) Available at: https://www.bbc.co.uk/news/uk-scotland-scotland-politics56364821 [13] Barendt, Freedom of Speech (2nd ed OUP 2005

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AUTOMATING HERCULES: WOULD ALR ADVANCE THE IDEAL OF THE RULE OF LAW? BY IMOGEN RIVERS

Would algorithmic legal reasoning (ALR) – that is,

kind of things that can be programmed.' 3

automated decision-making in legal contexts - advance the ideal of the rule of law? Some say yes on the basis

But that cannot be right because at least some

that ALR would advance traditional, formal

substantive principles seem implementable in

requirements of the rule of law: algorithms promote the

algorithmic tools. For instance, top-down

consistent application of general, promulgated and

algorithmic reasoning programmes general moral

prospective rules. However, others say no on the basis

principles into a computer along with particular

that substantive values, such as "reciprocity...between

information about some situation; then the

ruler and ruled", undergird the rule of law and demand

algorithm infers a moral judgment about that

that we be judged by people who share, in Tasioulas'

situation. Schemes for top-down algorithmic

phrase, our "autonomous rational nature". In this article,

decision-making include the implementation of

I wish to show that ALR would advance the rule of law,

Kantian deontology and preference utilitarianism.

even if that ideal comprises stringent substantive

Perhaps, then, the problem is

requirements.

Moral Disagreement: 'We should not implement

morally substantive principles through ALR (1) The Morality of Algorithms Why might ALR fail to advance the morally substantive requirements of the rule of law? One underlying intuition might be Algorithmic Amorality: 'ALR cannot advance any morally substantive principles because these aren't the

because any list of moral principles incorporated into top-down ALR would be deeply contentious and probably wrong. Human judges, by contrast, apply moral principles according to case-by-case reasoning.' But that can't be right either because at least some

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ALR tools implement morally substantive principles

The case against ALR vis-à-vis human judges,

through case-by-case reasoning: bottom-up

therefore, seems unpersuasive, motivated by popular

approaches to algorithmic decision-making

intuitions about algorithmic decision-making. I now

“derive… principles from cases…instead of applying

argue that ALR might in fact be preferable to human

general principles to particular cases”, for example

judges from a rule-of-law perspective.

through unsupervised deep learning.7

(2) Automating Hercules Of course, there are many issues with unsupervised

I wish to show that hybrid approaches to algorithmic

deep learning. Fundamentally, although ALR can

decision-making might in fact facilitate the principled

predict which acts humans will judge as wrong, it

resolution of moral disagreement. Hybrid approaches

can’t say why humans judge those acts as wrong and

apply machine learning techniques to decide which of

not others, much less why they are wrong. This is the

various moral theories they should apply in a given

Integrity Intuition: 'Even if bottom-up ALR

situation. For example:

successfully replicates decision-making by human judges, ALR fails to satisfy the requirement of the

A: Ideal observers: Sinnott-Armstrong and Skorburg

rule of law that decisions should be made in a

purport to resolve certain moral disagreements by

principled way.'

appealing to the ideal observer tradition in moral

philosophy, according to which an act is only morally Dworkin personifies this desideratum through his

wrong if ideal observers would disapprove of it. Ideal

ideal legal reasoner “Hercules”. The problem with

observers' moral reasons could be extracted in a case-

the Integrity Intuition, though, is that it seems to tell against the implementation of morally substantive principles by human as well as algorithmic judges. principles by judges on the ground that it’s inevitably unprincipled, resembling “the uncontrolled rule of 9

In other words, although bottom-up algorithms don't necessarily decide cases in a principled way, there's no guarantee that human judges do so either.

applied top-down to new decisions.

B: Maximise Expected Choice-Worthiness (MECW):

Indeed, Waldron repudiates recourse to moral

men, which the rule of law is supposed to prevent”.

sensitive way through machine learning techniques and

MacAskill (2014) defends a scheme for making actionguiding judgments based on all moral theories in which the decision-maker has some credence. The most appropriate action in a given situation is the one which maximises the expected choice-worthiness (ECW). The ECW is given by the weighted sum of an action’s choice-worthiness according to each moral theory T (CWT), weighted according to the credence that we

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have in A.T (CrT). Bogossian (2017) argues that

Conclusion

bottom-up machine learning gives us those input

It is relatively uncontroversial that ALR advances the

values (CWT and CrT); then we should automate

formal and procedural requirements of the rule of law. I

Hercules to apply the MECW principle top-down.

have argued that ALR is also no worse than human judges with respect to the morally substantive

Whilst I do not wish to come down in favour of any

requirements of the rule of law (section one).

particular proposal here, this discussion suggests that

Furthermore, hybrid ALR tools seem to advance the

feasible hybrid ARL tools might satisfy the Integrity

morally substantive requirements of the rule of law

Intuition.

(section two). In sum, I hope to generate better legal reasoning: we have a strong pro tanto moral reason to research, develop and implement ALR tools, in order to advance the ideal of the rule of law.

[1] For elaboration of this view, see Frankel, (1973) “Criminal Sentences: Law without Order”, New York: Hill and Wang; Kahneman, Sibony, and Sunstein (2021) “Noise: A Flaw in Human Judgment”, Little, Brown Spark; Waldron, “The rule of law and the role of courts”, Global constitutionalism 10:1, 91105. [2] John Finnis, Natural Law and Natural Rights, Oxford University Press (2011), p. 274-275 [3] Hart, for example, berates that “villain[ous]…conception of the judge as an automaton”: Essays in Jurisprudence and Philosophy, Clarendon Press (1983), p.66. [4] Sinnott-Armstrong and Skorburg, “How AI can aid bioethics” (2021) Journal of Practical Ethics, 4. [5] Arkoudas, Bringsjord and Bello, “Towards ethical robots via mechanized deontic logic” (2005) Machine Ethics: Papers from the 2005 AAAI fall symposium, 17-23. [6] Oesterheld, “Backup utility functions as a fail-safe AI technique” (2016) Foundational Research Institute, Report FRI16-2 [7] For a helpful sketch of how unsupervised deep learning works, see Sinnott-Armstrong and Skorburg, (note 5) at 6. [8] Volokh rejects this requirement and insists that ALR is morally defensible to the extent that it successfully replicates the decisions of human judges. If true, this only makes my case for ALR easier. See Volokh, “Chief Justice Robots”, Duke Law Journal Vol 68: 1135-1192.

[9] Waldron (n 1), 91. [10] Sinnott-Armstrong and Skorburg (n 5), 7-8. [11] Firth, “Ethical Absolutism and the Ideal Observer”, Philosophy and Phenomenological Research 12(3): 317-345. [12] Sinnott-Armstrong and Skorburg (n 5). [13] Recall that, if Waldron (2021) is right, this is already likely more than can be said for human judges.

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GOVERNMENT CONTRACTS AND THE HUMAN RIGHTS ACT

BY JONATHAN POWELL (2) Summary of Argument Section 6 of the Human Rights Act 1998 states that “it is unlawful for a public authority to act in a way which is

The major premise is logical and desirable. This is

incompatible with a Convention right.” According to (3)

so because it (i) correctly distinguishes between

(b) this applies to bodies whose functions are “of a

the purpose and nature of a function; (ii) provides

public nature.”

individuals in the same situation but for the nature of their funding with an equal standard of legal

The awarding of government contracts is not an unusual

protection; and (iii) maintains the public and

thing. The question posed in this article is whether

private law divide by refraining from making

private companies fulfilling government contracts

inappropriate policy judgments.

should be treated as a ‘public authority’ for the purposes of this provision.

(i) Distinguishing the nature and purpose of a function

(1) The Major Premise

Paul Craig argues that the major premise is

The interpretation adopted by the courts, dubbed the

counter-intuitive because "the type of rights-based

major premise, can be summarized as follows. The fact

claim that would have been pursued against the

that a body performs an activity which otherwise a public body would be under a duty to perform does not mean that such a performance is necessarily a public 1

function. A public authority's fulfilment of its public duty through the act of a private body does not, without more, transform a private act into a public one.

local authority, if the activity had been undertaken in house, is no longer available against it when the 2

activity is contracted out". But Craig fails to appreciate the importance of distinguishing between why a body has acted (in response to a public authority making arrangements) and the nature of the act (often wholly non-governmental

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and in their unique commercial realm).

ARTICLE

higher standard of legal protection than self-funding residents housed under the same terms.

The major premise correctly appreciates that it is one thing to provide services for a public authority, but it

Lord Neuberger said that it would be an "anomaly if

is another thing altogether to provide the services as

inhabitants…who were funded in whole or in part by

a public authority. In YL v Birmingham City Council,

a local authority, had Convention rights, whereas

the court convincingly reasoned that there is a

other inhabitants, who paid for themselves but were

difference between arrangement and provision. Lord

in an otherwise identical situation, did not". This is

Mance laid down that whereas "the local authority's

compelling and poses a problem for arguments

involvement is aimed at making arrangements…

against the court’s interpretation on the grounds of

Once such arrangements are made, the actual

rights and equality.

provision of care and accommodation is a different matter". 3 The purpose of the act in that case was in

Donnelly contends that "failing to hold private

part to enable the local authority to fulfil their public

contractors to human rights standards results in huge

duty of arrangement but the actual nature of the

inequality for citizens". This argument is built upon

function was private. It does not follow that because

the stance that citizens should have an equal standard

a carer or cleaner is fulfilling a government contract,

of legal protection and yet the contrary would be the

their caring and cleaning is uplifted to that of a

case if a private care home could somehow be

public nature.

regarded as exercising functions of a public nature for

some of its patients based on the method of funding. (ii) Equal Standard of Legal Protection The major premise successfully provides individuals in the same situation but for the nature of their funding with an equal standard of legal protection. In YL, the court said that their logic was underpinned by two observations; (i) those with self-funded places in private care homes could not argue that the care home was acting in a public capacity in relation to them; and (ii) it would be illogical if residents who were wholly or partly publicly funded could expect a

(iii) Private Law-Public Law Divide By respecting the private autonomy of private contractors, the courts have maintained the public/private law divide and refrained from making inappropriate policy judgments. P.H. Morris convincingly contends that if courts were allowed to require private contractors to comply with human rights obligations, this could have the effect of "handicapping the privatization movement", and in

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doing so the courts would be making inappropriate 6

policy judgments. Unless the legislature makes specific provisions, as it has done with Section 145 of the Health and Social Care Act 2008, the courts are right to maintain a narrow definition of a public function when dealing with private bodies.

[1] Donoghue v Poplar Housing [2001] EWCA Civ 595, per Lord Woolf [2] (2002) 118 LQR 551 [3] [2007] UKHL 27, at [115]. [4] Ibid., at [169]. [5] (2005) PL 785 [6] (1999) 52 Vanderbilt Law Review 489

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A BLEAK PICTURE FROM BLEAK HOUSE: LESSONS FROM THE CHANCERY COURTS BY RIVU CHOWDHURY

As we look to the massive backlogs, underfunding, and

the estate, and the final verdict was moot. The case

deep-rooted problems in our criminal justice system,

is best summarised by John Jarndyce himself as a

parallels can be drawn to the state of the Chancery

case "about a will, and the trusts under a will" that

Courts in the past. In this article, we will look at the

had simply been twisted by the lawyers and courts

lessons of reform we can learn from the courts and the

dealing with it.

surprisingly instructive lens literature can provide.

But how accurate was this depiction of a decadesThe Courts of Chancery in the 17th, 18th and 19th

old case with swathes of litigants? Sadly, this was

centuries were riddled with delays in litigation, severe

not a rare occurence. Thellusson v Woodford

backlogs, and excessive costs. There was crippling

(1799) 4 Ves 227 was a case regarding the will of

ineffiency and corruption. One of the most famous

Peter Thelluson, an merchant who died in 1797.

criticisms of the courts can be found in the novel Bleak

The issue was whether the trust under his will was

House by Charles Dickens. It acts as a satirical and

valid. In 1856 there was a protracted lawsuit as to

incisive indictment of the English Chancery Courts in

who the heirs were, and in 1859 the case was

the 1830s, and English legal historian Sir William

finally settled. Yes, you read those years correctly:

Holdsworth even viewed it as a primary source for the

the case took 60 years to be decided! Another case

times. At the centre of the novel is the long-running case of Jarndyce v Jarndyce. The case concerned the fate of a large inheritance, and lasted for so many generations that, by the novel's end, the legal costs had exceeded

was the will of Richard Smith, which was reported to have taken 36 years to get through the courts. Yet another was Jennens v Jennens, begun in 1798 and abandoned 117 years later, in 1915, when the legal fees exceeded the estate. These cases support Dickens' criticism, and vindicate George Spence's

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comment in 1839 that "no man, as things stand, can

and decrepit, the criminal courts have massive delays,

enter into a Chancery suit with any reasonable hope

overworked lawyers and an overwhelming backlog. The

of being alive at its termination, if he has a

Covid-19 pandemic made things much worse: the

determined adversary".

backlog reached 550, 000; digital hearings were slow to be adopted and impossible where there were juries.

Regarding costs, the representations were accurate.

Further, there is a lack of sustainability in the criminal

Costs included fees to lawyers, office fees, and

bar in particular. Recruting and retaining lawyers is

payment to the Commissioner for the compulsory

difficult. This is worse for criminal defence because the

purchase of all documents. Things were worsened by

CPS has more sustainable remuneration schemes. On

the abuse of officials and clerks paid per piece of

top of that, the 'Temporary Operating Arrangements'

work. Moreover, the litigants had to be changed and

introduced by the government increased courtroom

new documents made and billed if someone died.

hours, pushing an already overworked sector to

These ever-soaring costs, coupled with never-ending

breaking point.

cases, often drained people of their finances.

Like Romilly, barristers still write to expose the ills of However, one cynical portrayal is untrue. Dickens

our legal system. The Secret Barrister is one of them. In

described Chancery lawyers as not having an

his eponymous book, he explores the chronic

"honourable man among its practitioners". While

underfunding and failures in delivering justice that

some would have been as bad as presented, lawyers

bedevil our criminal justice system. But Romilly, in his

were the forerunners of Chancery reform. Many

political career, also worked to reform criminal law,

barristers in the 19th century wrote about the abuses

repealing many capital offences and draconian bills.

and chaos of the chancery courts. The most impactful

Writing remains essential for criticism, but legislative

criticisms came from those barristers who had trained

action is the only possible solution.

as Chancery-advocated, such as Sir Samuel Romilly. Moreover, Lord Cottenham, then Lord Chancellor,

Sadly, Parliament has been more focused on crushing

called together an informal commission of reform

protestor rights than criminal justice in the Police,

and was behind a minor earlier reform. Lawyers saw

Crime, Sentencing and Courts Bill 2021. However, it

the frustration of the system and were aided by the

does include positive changes on pre-charge bail,

Chancellor in advocating reform.

continuing COVID and other measures for court accessibility. This is a conservative start, but change

Readers may notice similarities to the state of our

must come from the legislature as the push from

current criminal justice system. While not as corrupt

lawyers and judges has been made.

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CLAUSE 2 OF THE JUDICIAL REVIEW AND COURTS BILL: CARTINGOFF JUDICIAL REVIEW

BY CHARLIE FURNISS judgment Lord Carnwath set out a two-stage In Cart, the Supreme Court asked itself when, if ever, the Upper Tribunal’s decision to refuse permission to

methodology: (i) the courts must start by

appeal from the First-Tier Tribunal should be subject to

determining what level of scrutiny the rule of law

judicial review. The majority, drawing on the second-

requires, with particular focus on the statutory

tier appeals criteria, held that judicial review would only

context; (ii) then the court must determine whether

be possible where (i) the case raised an important point

there is a “tenable” construction which retains this

of principle or policy or (ii) there was another

scrutiny.

compelling reason to hear the case.

In dissent, Lord Sumption adopted a different The balance this decision struck between the court’s

starting point, distinguishing between cases where

desire to retain some level of supervision and the need to

review is ousted of an executive decision-making

pay due respect to the UT’s expertise has not found

body with those where Parliament transfers the

favour with the Government. Clause 2 of the Judicial

High Court’s review powers to a different judicial

Review and Courts Bill would oust Cart review in all

body. His Lordship would be far slower to deem

but very limited circumstances. The aim of this article is

an ouster invalid where Parliament have merely

to engage with the leading case on ouster clauses, Privacy International, in an attempt to ascertain whether the courts will find the ouster in Clause 2 to be valid. The differing approaches in Privacy International Privacy International was characterised by two very distinct approaches to ouster clauses. In the leading

channelled the power of review through another judicial body. How will the courts treat Clause 2 in light of Privacy International? On Lord Sumption’s view, Clause 2 of the JRCB would almost certainly be deemed legally valid.

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The UT is clearly a judicial body, given its

Turning to Lord Carnwath’s second stage, Clause 2 has

guaranteed independence (s1 TCEA), specialist

clearly been drafted with Privacy International in mind.

knowledge, and status as a superior court of record

The exclusion of “purported determinations” leaves

(s3(5) TCEA).

little if any room for a tenable construction permitting review. Whether the courts follow Lord Sumption or

The status of Clause 2 when applying Lord

Lord Carnwath’s methodology, therefore, it seems

Carnwath’s methodology is more complex.

highly likely that Clause 2 will be found to be a valid

Regarding the level of scrutiny required by the rule

ouster of Cart review.

of law, Lord Carnwath set a baseline of review on the grounds of ultra vires and bad faith which is satisfied

Blueprint ouster clause?

by Clause 2 (s2(1)(4)). Moreover, Clause 2’s

If the courts do find Clause 2 to be an effective ouster,

statutory context would suggest that the level of

the question remains whether the clause’s wording will

scrutiny required by the rule of law is minimal. The

be able to provide a blueprint for other legislation, as

claimant will already have had two cracks of the

the Government suggested in their press release

whip: first to the FTT and second to the UT in

accompanying the IRAL Report 2021. Given the

seeking permission for appeal. As such, the need for

importance of statutory context and the nature of the

judicial review is less pressing, the claimant having

particular body to whom review is being ousted, the

had a fair opportunity to make their case.

chances of the same wording successfully excluding review of an executive decision-making body seem

Further, Clause 2 does not give rise to the concerns about inconsistency raised by Lord Carnwath in Privacy International. As Lord Carnwath himself has argued extrajudicially, the right of appeal to the Court of Appeal contained in s13 TCEA provides a link to the broader court system that prevents the UT from being a legal island like the tribunal in Privacy International. In his Lordship’s view, the ouster in Clause 2 would restore the TCEA’s goal by providing the UT with the same status as the High Court.

unlikely. Another obstacle, at least on Lord Carnwath’s approach, is the need for some link to the broader legal system to uphold the consistency dimension of the rule of law. So although Clause 2 may be a useful blueprint in a statutory setting similar to the UT, the use of the wording outside of this context could encounter strong judicial resistance. Conclusion Although the statutory context and wording of Clause 2 strongly indicate that the courts will find it to be a valid ouster clause, the Government would be naïve to think that its wording will represent the blueprint they seek.

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NO FAULT DIVORCE: WHEN, WHAT AND WHY? BY RHYS DUNCAN The "biggest shake-up of divorce laws for 50 years"

that the parties lived apart for five years,

years’ is due to come into force on 6th April 2022. The

regardless of consent to divorce. The law further

Divorce, Dissolution and Separation Act 2020 will

requires that one party (the petitioner) instigate the

replace the current law concerning the reasons required

divorce against another (the respondent), with

for a divorce, and instead apply a blanket policy, aimed

parties unable to seek a divorce collectively.

at benefitting the physical, mental and financial wellbeing of spouses, as well as their dependants. This

How will this change?

article will present a brief overview of the current state

As of 6th April, all of this will be gone. Instead

of law, the imminent changes, and the reasons behind

one party (or both jointly) need only submit a

them.

statement online that the marriage has broken down irreparably. This will instigate the divorce

The current law

process, regardless of the consent of the other

As the law stands, spouses are only eligible for a divorce

spouse, who will be unable to contest. There is, it

if they meet one of five criteria. Three of these require

should be noted, the minor exception that the

identifiable fault: adultery, unreasonable behaviour such

validity of the marriage may be contested on the

that the other spouse cannot be expected to cohabit any longer, or desertion for a period of at least two years (i.e. the respondent has left their spouse voluntarily with no intention of returning or continuing a relationship). The other two criteria are not fault based: the first is that the parties were living apart continuously for two years, with both parties consenting to the divorce; the second is

basis of jurisdiction, legal validity, fraud, coercion and process, though these are distinct from requiring a reason for divorce. Practically, the new law will require a minimum of six months from the submission of a statement to the granting of a final divorce order. This is to

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reduce the speed of the process and allow the parties

Why is the law changing?

time to consider their actions and the implications,

The current system has long been criticised for being

rather than making rash yet conclusive decisions.

unnecessarily provocative, for actively encouraging an assignment of blame for the breakdown of a marriage. It

The significant changes will take the law of England

does little to reduce conflict between parents, nor does it

and Wales beyond that of Canada and Australia, two

seek to aid dependants. This can, and does, detract

other no-fault divorce systems, both of which allow

parties’ attention from the vital aspects of their

divorce after 12 months of continuous separation,

separation, for example the division of assets and care

without requiring blame, fault, or allowing

of children, which are more important and impactful

contestation. The system in Scotland, too, will be

than the assignment of fault. The new system, therefore,

surpassed, where divorce is permitted after one

should help to reduce the animosity and distress

year’s separation if both parties consent, or two years

attendant upon divorce, protecting dependants and

without consent.

bringing about mutually agreeable and amicable separations.

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ARTICLE

EXPLORING THE JUDICIAL SYSTEM AS A NOVICE: A ROADMAP FOR NONLAW STUDENTS BY MELISSA HUSSAIN

I am months into exploring a career at the Bar as a non-

First, understand that the purpose of the judicial

law student. After attending introductory events about

system is to solve legal problems between parties

different areas of the law, I became shy by the vast

using the law. With this principle identified, you

knowledge participants and speakers tended to have

can explore how legal problems are organised

about the judicial system, causing me to question

between different courts, tribunals and alternative

whether I ought to ask speakers questions with far-too-

forms of dispute resolution. The most accessible

obvious answers. I then wondered whether, in a

introduction I could find on this organisation of

scholarship interview, I could persuade the panel of my

cases is the Judicial Office’s visitors’ guide. The

worthiness despite not knowing what the ‘judiciary’ is.

guide contains clear diagrams explaining the key components of the judicial system. On the next

Subsequently, I aimed to learn about how the judicial system broadly works. Such a wide query could only result in an excessive overload of information. An unwise start. However, through my research, I have come to appreciate how the system coheres. My intention in this article is to provide one map, out of several possible maps, of how one begins to understand it, particularly for non-law students battling with time. There are five checkpoints.

page you can find two very useful ones.

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ARTICLE

As well as through litigation, cases can also be

transparent manner; (d) justice is delivered in a timely

resolved using alternative dispute resolution, such as

and impartial manner, and is accessible to all.

arbitration. Goldsmith Chambers have a very good guide, which you can access here

On this topic I would recommend reading Bingham’s

(https://www.goldsmithchambers.com/wp-

Rule of Law, where he builds on these principles and

content/uploads/2020/06/Intro-to-Mediation-and-

also discusses the difficulties he encountered trying to

Other-ADR-Mechanisms-Note.pdf). If you’re

achieve the ideal as a judge.

interested in becoming a specialist in arbitration or meditation, concentrate on applying to sets with a

Third, know which practice area you want to work in

strong reputation in alternative dispute resolution.

by first knowing the variety of practice areas in existence, and how they are distinguished and overlap.

Second, know the importance of the rule of law.

For this go to the comprehensive list of practice areas

Assess whether the values it incorporates are

on the Chambers and Partners website.

honoured in this country or whichever jurisdiction you would like to work in. This indicates that you

Fourth, observe how the judicial system works in

accept the responsibility of being part of a legal

practice. Go to court and watch cases. Follow barristers

profession that tries to embody those ideals.

and their chambers on LinkedIn. This can fill gaps in

Moreover, I have found it useful to have some

your knowledge, give you specific cases or judgments

philosophical understanding of the law to understand

to explore, and inform you of the kind of cases that you

why barristers and judges are often so selfless in their pursuit of justice and why they tend to emphasise the importance of the rule of law at career events. The precise meaning of the rule of law is hotly contested by judges and academics. The World Justice Project, however, has identified four universal principles: (a) both private and public actors, including the government, can be held accountable using the law; (b) the law is clear, publicised, stable, and applied evenly; (c) the law is made, adjudicated and enforced in an open and

may one day wish to take on. Fifth, understand how the judiciary is evolving, and develop an opinion on that evolution. Are judges, as Lord Sumption argued in his 2019 Reith Lectures, trespassing on matters that are essentially political? Do you agree with Imogen Rivers (see p. 6-8 of this issue) as to the desirability of algorithmic legal reasoning? Moreover, as a non-law student, you will want to acquaint yourself with how barristers reason, the arguments they deploy, and the changing nature of the cases they are instructed on.

THE PUPIL

ARTICLE

Some useful places to begin to keep up with changes

To conclude, the approach explored in this article could

or anticipated changes are the UK Supreme Court

be improved upon. However, with time scarce and legal

blog or the Inner Temple Library newsletter. You can

education lacking, we non-law students must resort to

also follow developments in your practice area(s) of

flexible measures. Keep inquiring, keep improving and

interest, whether from newsletters, in newspapers, or

adapting your existing approach, so that you will be

on Twitter. And Joshua Rozenberg’s blog is essential

well-prepared for your application cycle when the time

reading.

comes.

THE OXFORD BAR SOCIETY Exclusively Sponsored By

THE PUPIL

IN CONVERSATION WITH

DAVID WATKINSON FORMER HEAD OF CHAMBERS OF GARDEN COURT CHAMBERS Q. What were your main interests growing up,

solicitor (as it seemed would be the case).

academic or otherwise? Was there a particular moment when you decided to become a barrister?

Q. You were called to the bar in 1972 and

I was an avid reader - chiefly History (still my favourite

retired from practice in 2012. What changes

topic), Archaeology, Literature, adventure stories,

did you observe throughout your career?

Classics, mythologies of anywhere, Humour. My A

I have seen a great many changes. I'll choose three

levels were English Literature, History and Latin. I also

big ones. First, diversity. When I started the bar

enjoyed amateur dramatics. My school put on a play

was virtually an all-male profession, though

open to the public every year. I rose to be the lead in

women were just starting to join in any number.

Moliere's "Malade Imaginaire". With the Old Woking

Also, the tone was set by those who had been

Drama Group I was Prince Malcom in "Macbeth". I

privately educated even if not everyone was

carried on that interest at University.

(which included myself as an ex-grammar school

My Dad said one evening (about my A-level time) that

believe some 50% of those now entering the Bar

he'd had a good idea for a job for my brother and myself while travelling home from work. It was being a solicitor. This he regarded as a safe steady job with a good income (he was a Customs and Excise officer, working in London on VAT latterly). My brother was not interested, but I was intrigued because by that time I reckoned I should be studying what I intended to work at and, on my then interests, I could see my career options being limited to teaching. So I applied to study law. A term into university, I decided I wanted to become a barrister- with the public performance part of it, it seemed more me than being an office-based

pupil). I don’t know the exact statistic, but I are women. This may be an entirely subjective comment but, in my view, the Bar is a much friendlier and less formal place to be because of it (and of course this is not the only advantage). For a time, women were concentrated in crime and what might be called the social welfare sector of the profession (family and ‘legal aid’ work) – although this too is now changing. Much the same could be said about the representation of black, South Asian and Oriental barristers in the profession. This was sparse when I began but now much more established. Again, when I began, a barrister who was homosexual

THE PUPIL

IN CONVERSATION WITH

was unlikely to be open about it. Now I receive Bar

more stringent and complex, as has the associated

Council notices about meetings organised by the Bar

guidance. Of course, the brunt of this has been borne by

LGBTQ committee simply by virtue of being a

the solicitors who make the actual application. But it is

barrister.

the solicitors who instruct counsel and whom they pay out of the legal aid they have been granted. Not only

The second big change is specialisation. When I

have rates remained low but whole areas of practice

started a barrister's speciality was advocacy, although

have been taken out of legal aid altogether: for example,

there were barristers who specialised only in crime

personal injury, immigration tribunals and housing

(and some as prosecutors or defenders) or family.

advice. Solicitors and barristers continue to work within

Those were just about the only specialisations.

the legal aid system but with great difficulty.

During my first 7/8 years I practised in crime, housing, employment, immigration, personal injury,

Q. You specialised mostly in housing and planning

social security - almost every area apart from family

law. Why?

and commercial (although I did settle a divorce

A good many barristers could probably tell something

petition once). Now barristers may have one,

like this story. I did not intend to become a housing

possibly two specialist areas but rarely if ever more.

barrister. My aim was to practise in employment law

Indeed applicants for pupillage or tenancies are

and work as an advocate for trade unions and

encouraged to identify a specialist area of practice.

employees. And in my early years I did do employment (industrial) tribunal work, mostly dismissal cases. Bear

The third change is the restriction of legal aid. I believe it is not generally realised how dependent the Bar is on legal aid - much more so than, on the whole, solicitors are. The two largest specialisms are family and crime which are heavily dependent on legal aid. When I began, legal aid was administered by the Law Society and the requirements were very straightforward. Over the years, the Government has played a greater and greater role in its administration, first absorbing it into the Lord Chancellor's Departments and then into the Ministry of Justice. The conditions for grant have become more and

in mind also that, at the time (1972) there was no such course as housing law. There was an area known as "Landlord and Tenant law" but that was basically long leases and business tenancies. However, while I was taking the Bar Finals course, our teacher told us about a new procedure for the eviction of squatters. I was in contact with a group of activists who were campaigning on the issue of lack of housing. Again bear in mind there was a homelessness crisis then (this was the time of the film "Cathy Come Home" and the foundation of the Shelter organisation), and there was not a duty on local authorities to find accommodation for the homeless until 1977

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IN CONVERSATION WITH

(and even then with significant exceptions including

started receiving non-Gypsy and Traveller planning

the single homeless or couples). At the same time

work.

there were swathes of empty property, owned by

The lesson in all this is, while it is good to have an aim

local authorities, the result of schemes for

as to what to practice in, do not assume that that is how

redevelopment which were no longer going ahead or

your practice will develop! Nor have I ever regretted

slowly. So I passed on the information I had

ending up practising in housing law. The law - a

including about the case law which enabled defences.

mixture of centuries old common law and copious

I also went to court and acted as an informal adviser

statute is fascinating. And what can be more satisfying

during proceedings - a "McKenzie man". Once I was

than enabling someone to remain in their home?

able to appear in cases, those campaigning started asking solicitors to instruct me. So I got a reputation

Q. What are the three most important cases you've

for appearing in such cases. Solicitors then assumed I

been instructed on?

knew about possession cases against tenants and

Every case, of course, is important – to the client, the

instructed me in those; I didn't at first but I soon did

solicitor, and to the barrister, since on how the barrister

as a barrister learns on the job. Eventually, in the

handles the case depends the barrister’s reputation and

early 1980s, I gave up all other areas of law I had

likelihood of being instructed again. "You are only as

been practising to concentrate on housing. However,

good as your last case". In the very gossipy legal

the same possession proceedings that were used to

profession your reputation soars if you do well, and

evict squatters from housing were also used to evict

plummets if you do badly. Doing well doesn’t

Gypsies and Travellers from land. So I started being

necessarily mean winning the case (thank goodness), so

instructed in those cases. This opened up the planning area because the main problem for Gypsies and Travellers, then and now, is the shortage of caravan sites available for occupation and with planning permission (the Caravan Sites Act 1968 placed a duty on certain local authorities to provide such caravan sites but implementation was very slow). So I began appearing in public inquiries representing Gypsies whose applications for planning permission had been refused. Something similar happened as had with housing - before I retired I

long as the client and solicitor can see that all that could be has been done and said. But these are three cases to give you an idea of what can be achieved and how. The first is R v Hillingdon LBC, ex p Puhlhofer. This concerned a couple with a child in one-room accommodation. The House of Lords held they did not qualify for housing assistance under the Housing (Homeless Persons) Act 1977 as they were not homeless within the Act even if their accommodation was not reasonable to continue to occupy. The

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IN CONVERSATION WITH

definition of "homeless" contained no such

Government guidance, which stated that these powers

qualification. A homeless applicant could also be

should be exercised "in a humane and compassionate

disqualified under another section if s/he was

fashion" and with regard to the authority's powers under

"intentionally homeless" but that did not apply if s/he

the Children Act 1989, the then Housing Act 1985, and

had left accommodation which was "not reasonable

the Education Acts. Sedley J that the guidance

to continue to occupy." So the bizarre situation was

contained relevant matters to be taken into account and

that if s/he stayed in unreasonable accommodation,

failure to do so could (and in one of the cases did) lead

s/he could not be assisted, but if s/he put themselves

to the directions being quashed. The guidance could not

on the streets, they could. Within a year an

"properly be ignored when dealing with one of the most

amendment to insert "not reasonable to continue to

fundamental human needs, the need for shelter with

occupy" was proposed and

at least a modicum of security". Sedley J’s approach

inserted into the definition of 'homeless". It was

was adopted by judges in subsequent cases, extended to

drafted with a supporting briefing by a solicitor, Nic

other forms of eviction and repeated in later guidance. It

Madge (who later became a circuit judge) and

went some way to mitigating another effect of the Act

myself. It has assisted homeless applicants ever

which was to remove the duty (originally enacted in the

since.

Caravan Sites Act 1968) on local authorities to provide adequate accommodation for Gypsies "residing in or

The second case is R v Lincolnshire CC and

resorting to" their areas (s 80 of the 1994 Act).

Wealden DC, ex p Atkinson and Stratford. These were judicial review proceedings challenging decisions by two local authorities to make removal directions under the Criminal Justice and Public Order Act 1994 (ss77-79). Those directions could be made against "persons [who] are for the time being residing in a vehicle or vehicles within that authority’s area". Removal was to be "as soon as reasonably practicable". It was a criminal offence not to comply and the local authority could enter on the land to enforce it. But the exercise of the powers was subject to

The final case I’m going to mention was my longestrunning one, Kay v UK, which lasted 10 years. This was also my only victory in the ECtHR. The case concerned the residents of a street in South London, the houses owned by the local authority. All had resided with the permission of the council 'on licence' for many years. The council then terminated the licences by notice and brought proceedings to evict the occupiers. In the ECtHR the issues were whether the right to respect for the home (Article 8 of the Convention) applied when the occupiers of the home were trespassers and, if so, whether the court was required to consider whether it was proportionate to make the order (applying Article 8

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IN CONVERSATION WITH

(2) of the Convention). The Court answered "yes" to

would, if enacted, entirely re -draw the planning system

both questions and the applicant's claim succeeded

in England and Wales and in particular have prevented

because all the other courts had ruled that issues of

objections to applications for planning permission for

proportionality were irrelevant. Later the Supreme

actual developments and repealed the provision (s 106)

Court, following Kay and some other ECtHR

enabling local authorities to agree socially beneficial

decisions, accepted those principles as applying in

additions with private developers as a condition of

domestic law, with some qualifications, to cases

granting planning permission. Another problem is the

where "any person [is] at risk of being dispossessed

proposed zoning system, designating areas for growth,

of his home at the suit of a local [public] authority".

renewal and protection. This deprives people of the

(Manchester CC v Pinnock). This opened up a new

right to object to a particular development, and when

line of defence in such cases.

there is no actual proposal, it is impossible to have strong feelings either way.

Q. What do you consider the most pressing issue in housing and planning law today? In housing, the repeal of s. 21 of the Housing Act

Q. You qualified as a mediator in 2008 and that is the work you do now. What differences have you

1988 as amended, i.e. ending no-fault evictions in the

observed between the two professions?

private rented sector. This would affect about 20% of

In one sense the difference is not so stark. Settling cases

the dwellings in England and Wales. This has been

is part of a lawyer's skill, and the vast majority of civil

repeatedly promised by the government since 2019 but has yet to appear in a Parliamentary Bill. What replaces s 21 becomes the next issue: do the tenancies become “assured”, i.e. possession can only be granted on one or other of the grounds set out in the Act, or will additional grounds be created? In planning, the restoration of the duty on local authorities to provide caravan sites for Gypsies and Travellers, with appropriate financial backing and enabling private development of Gypsy sites within specific planning guidance. More generally in planning, the withdrawal of Government proposals consulted on in 2020 which

(non-criminal) cases do settle without the assistance of a mediator. Identifying the disputed points, identifying the strengths and weaknesses of the different cases, and the common ground, if any, and getting the sense of what terms would be acceptable and what not – these are as common processes for a mediator as for a barrister. What is different is that a mediator must be impartial. The mediator's task is to assist the parties in coming to a solution which they agree upon. The mediator does not express his/her opinion nor advise nor make any judgement. This is in complete contrast to the barrister's role. Adjusting can be difficult. A lot more patience is required.

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IN CONVERSATION WITH

Q. What are the three most important skills a

by that (although being a very good barrister is

successful barrister must have?

encouraged). A barrister is required to establish good

First, a capacity for hard work. Establishing yourself

relations with and win the confidence of quite a number

as a barrister worth instructing and maintaining that

of different people in what can be a very short space of

position means abandoning any other meaningful

time. These include the client, the instructing solicitor

activity. No deadline is more absolute than a court

or representative (both of whom you may meet for the

hearing. Missed deadlines on filing pleadings lead to

first time on the day of the case), your own clerk or

sanctions. You will be working at weekends and your

clerks, hopefully your opponent or the police when

presence at any social or other event cannot be

personally prosecuting and your colleagues in

guaranteed. None of this ever stops so long as you

Chambers whose advice you may need to seek. Do not

are in practice.

forget the person in charge of the court list. That is the person whom you will need to speak to so your case is

Second, rapid facts absorption. There may be an

first on at 10.30 when you need to be heading to your

impression that barristers spend their time in court

next one at 11.

debating undecided points of law. Yet in the vast majority of cases the applicable law is clear. What is

Q. What advice would you give to readers of The

not clear are the facts to which the law is to be

Pupil and other aspiring barristers?

applied. That is established by the evidence which is

Go for it. Despite all I have said above, it's a great job.

subject to examination. Before court the factual position can be constantly changing. Despite court orders to the contrary evidence comes in late including just before or on the day of the case or emerges in the course of the case. You have to absorb it, see how it fits (or not) with the case as you knew it before, and decide if that alters how you are conducting the case. Third, affability. I once heard a discussion on radio between a number of barristers' clerks about their work. One of them said "You don't have be a very good barrister so long as you're affable". I was struck

It is intellectually stimulating, you can help people, it is definitely not boring - and every now and again you get paid for it. What's not to like?

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IN CONVERSATION WITH

BIANCA BALMELLI FROM AN ATTORNEY AND ADVOCATE IN SOUTH AFRICA, TO A BARRISTER AT LITTLETON CHAMBERS Q. What were your main interests growing up? Did

that here as best I could. I was very lucky to get

you always want to be a lawyer?

pupillage in the first round of applications, which I

I’m not sure that this is quite an interest, but I was

subsequently found out was quite rare. I was

always very talkative. My parents now joke that I’ve

actually getting quite disheartened when I received

found a way to make money out of that! I’ve actually

some rejections and wondered how I was getting

wanted to be a lawyer since I was about 11. It was

rejected when this is exactly what I did in South

always something that attracted me – courtroom dramas,

Africa!

fighting for justice…

Q. How did you find the transition between the Q. Before coming to the English bar you practised in South Africa. Could you tell us a little about your time there? I grew up in South Africa, studied there, did the equivalent of the training contract and became an attorney, and then moved across to the equivalent of the Bar as an advocate. That division is very similar to the solicitor/barrister one here. In fact, South Africa is about where the UK was 10 years ago, from a procedural perspective. Q. Why did you decide to pursue a career as a barrister in the UK? After a couple of years of practising my husband, who is also a lawyer, got a very good job here. I had loved being an advocate in South Africa and wanted to pursue

two jurisdictions? What differences did you notice? In South Africa there is no paid pupillage at all. There are no sets as such (though there is a kind of group which pays overheads), so each barrister really is very independent. This also means that the Bar itself oversees the pupillage process. For example, I went to my specific mentor and asked him if I could do pupillage with him for a year. Regarding financing, many take loans. I was very fortunate that my parents could draw down on their mortgage and lend me the money to effectively take the year off to do pupillage. The training and practice are actually very similar, although in South Africa there are no clerks and you have to do it all yourself. I love my clerks and

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would not want to go back to not having one!

IN CONVERSATION WITH

Q. Could you tell us about your current practice? Is there a particular area you prefer?

Q. You completed your pupillage relatively

I’m currently doing employment, commercial, and

recently in 2019. What advice would you give to

sports law. But I enjoy anything that gets me into courts

readers of The Pupil preparing to apply?

and is mentally challenging. The one area that I’m

I’ll give three pieces of advice. First, have a very

really trying to build is my sports law practice.

good support network, both for the application

Although this is the smallest part of my practice at the

process and pupillage itself. Both are gruelling.

moment, I’ve been able to get involved in a couple of

Second, have resilience. Rejections from multiple

very interesting cases. During pupillage I was lucky

sets are inevitable. But if this is something that you

enough to get to go to the Employment Tribunal for the

want you have to keep at it. It’s a worthwhile career.

Jess Varnish case, the British cyclist who lost her appeal

Also, resilience is key for being a good barrister.

against a decision that she should not be considered an

There are going to be times when you stand in front

employee of British Cycling, depriving her of the

of a judge who has had a bad day and they take it out

protections that come with employee status. And this

on you. You can’t just fall to pieces because you

year I’m also doing an anti-doping matter on a pro-bono

need to present your client’s case. Similarly, multi-

basis. And it's worth mentioning that Littleton is doing

day hearings are absolutely exhausting, and you need

the investigation into the allegations of discrimination at

to be able to dig deep to just push through and be able to do your job to the best of your ability. If you don’t have resilience, then you definitely should not be a barrister in the first place. Third and finally, make your CV look different. Even at Oxford, you are the same as another 200 applicants. Try to do something to distinguish yourself, whether winning a moot, clerking for a judge. I think this is certainly something that helped me. I had the grades but I think what made me stand out was that I already had that experience, that practice, which made my CV interesting to read.

Yorkshire Cricket Club. Q. Do you have a typical working week? This is one thing that’s very difficult as a barrister. It’s very feast and famine. When you’re in court (I had a four-day hearing this week) you’re busy from 8 in the morning till 12 at night, since once the court-day finishes you have to prep for the next day. This week’s case was quite a complex indirect discrimination case. I had a leader so I was doing research in the evenings while he was preparing cross-examinations. On top of that, I had other cases popping up and I needed to put out fires there. But as well as being completely inundated with work, you can have a week where nothing happens. For

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IN CONVERSATION WITH

example, you had a trial that collapsed or settled, you

avenue into a particular type of work. Otherwise, it’s

didn’t get a listing, etc. Generally the clerks keep us

going to be fairly limited. Even if I got a case involving

busy so it’s more when you have a trial that

German law, I could read the cases but I don’t think I’d

collapses, opening up a massive gap in your diary

feel comfortable enough to be able to tell the court that

where you can breathe a bit!

this is exactly what the law says and there is no other interpretation. You’d still need interpreters.

Q. What case that you've been involved in has particularly stuck in your mind?

Q. You started out with a training contract at an

The one that really sticks in my mind is an EAT

international law firm. Has this helped or hindered

appeal, Dobson v North Cumbria, which I got to

your career as a barrister?

work on with Mo Sethi QC and Sophia Berry. This

In South Africa my experience was actually typical of

was a really important case which resolved a whole

most people. They start out practising at what’s called

bunch of issues in indirect discrimination law, and

the sidebar for a year or two, and then move over to the

also explained the circumstances in which judicial

bar. This is partly because it is so financially

notice can be used to prove group disadvantage.

challenging to take a year off with no financial means

What was really cool was that when I was doing

straight out of university.

research this week on another indirect discrimination

For me, my training contract made a huge difference.

case opposing counsel cited this case! It was a really

Those two years enabled me to properly grow up after

important case, and you get this warm fuzzy feeling

university. You get that sense of real responsibility.

for having been on it!

From a pupillage perspective, especially in the UK, you

Q. You speak English, German and Afrikaans. Is

take you on. You have to hit the ground running. I think

foreign language ability important/helpful for barristers? It depends on your practice. In my practice I actually haven’t used it at all, though one day I might get a case with a German/Afrikaans element. However, I know that some members of chambers do Russian law, and one got into that type of work because he can speak Russian fluently. Theoretically, then, being able to speak a particular language might give you an

effectively have 6-9 months to impress the set enough to this is very difficult if you come straight out of university. Any kind of proper job training, even during university, anything that can help you grow up a bit (without wishing to sound condescending because obviously university is difficult). The pressures at university are very different from the pressures in the work environment. Of course, I’ve heard anecdotes from people here that people who take the ‘side-bar’ route are considered by some sets to be lack dedication to life at the bar. For me

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personally, it gives you the chance to actually realise how it is to work as a lawyer. It was an incredibly useful experience, and I wouldn’t prejudice any application for having been a solicitor first. My copupil was also actually a solicitor for 2-3 years before doing pupillage. Q. One final word of advice for readers of The Pupil and other aspiring barristers? Don't take rejection personally.

IN CONVERSATION WITH

VOL. 5

Hilary Term 2022