The Pupil - Volume 4 by Oxford University Bar Society

MICHAELMAS 2021

ISSUE NO. 4

FEATURES

The Decline in Legal Aid and the Underfunding of the Criminal Justice System By Rhys Duncan

In Conversation with The Rt. Hon. Sir Keith Lindblom By Cecily Day

THE PUPIL

TABLE OF CONTENTS

THE PUPIL ARTICLES Editor's Note

by Cecily Day

Is Polexit Approaching?

by Caroline Green

06 Pride, Prejudice and Property: the fee tail through the lens of literature by Rivu Chowdhury

A Compassionate Law

by Polina Suchkova

10 The Decline in Legal Aid and the Underfunding of the Criminal Justice System

IN CONVERSATION WITH

by Rhys Duncan

Revisiting the Leveson Inquiry: Article 8 vs Article 10 by Frederick Foulston

Whistleblowing and Big Tech

by Bea Munro

I believe in fairies: On the Legitimacy of International Law by Imogen Rivers

Predatory Marriages

by Jasmine Knapman

Factors Not Considered — Aspects of a UK Wealth Tax in Need of Further by George Beglan Discussion

Legal Advice Privilege: What is it and How Should it Operate? by Connie Trendle

Kim Hollis QC

Richard Humphreys QC

Leila Amineddoleh

The Rt. Hon. Sir Keith Lindblom

THE PUPIL

EDITOR’S NOTE

FROM THE EDITOR

he fourth issue of The Pupil Magazine, Michaelmas 2021, focuses on some of the major issues faced by the legal world at the moment. Our contributors have provided key insight into controversies within the UK legislature and judiciary, and presented critical arguments regarding the laws, policies and systems in place, as well as the repercussions affecting the public, both within and beyond the UK. Kim Hollis QC and Richard Humphreys QC, both highly accomplished Silks, have provided invaluable perspectives on the intricacies of the UK Bar and reflected on some of the most interesting developments and experiences of their careers. Leila Amineddoleh opens up a window into the world of art law and cultural heritage law, as practiced in the United States, reflecting on landmark cases and the global ramifications of a rapidly expanding field. The Rt. Hon. Sir Keith Lindblom imparts a unique perspective on a remarkable career spanning forty years from Bar to Bench. He now holds the prestigious role of Senior President of Tribunals. Thank you to all of our contributors and particularly to the lawyers who have taken the time to share their wealth of knowledge and experience with readers of The Pupil. This issue is bound to excite readers and cause them to both reflect and build on their conceptions of a career at the Bar and the intricacies of various niches of the law that are rarely illuminated. Cecily Day Editor of The Pupil

THE PUPIL

ARTICLE

IS POLEXIT APPROACHING? BY CAROLINE GREEN For European Union lawyers and casual proponents of the rule of law, 7 October 2021 was a significant day indeed.1 The day involved Poland’s Constitutional Tribunal finding Article 1, 2 and 19 of the Treaty on European Union (TEU) partially unconstitutional. In other words, there has been a major blow to the primacy of the EU; as a result, muted whispers that Poland might be next after Brexit have become louder and more confident. How did we get here? For some background, supremacy is a cornerstone of the EU and how it functions. It is the principle that national courts of Member States are required to give immediate effect to EU law in domestic cases that arise before them (or “primacy”). Even the most minor splinter of technical Community legislation would transcend the most sacred constitutional norm. Despite several attempts to include supremacy within a treaty throughout the years, it is the European Court of Justice (ECJ) from which the concept originates.2 If there exists conflict between EU and domestic law, the national court must refuse to apply it.3 Every Member State, including Poland, has accepted supremacy in national constitutional provisions.4 The situation in Poland follows a long line of tension between the EU and journalists due to alleged violations of important rights. Notably, the Constitutional Tribunal virtually banned legal abortion in 2020 and local authorities in Poland have labelled themselves “LGBT ideology-free zones”. 5 Now, the EU fears for the independence of the judiciary in Poland. The current 2021 judgement came after the ECJ found the new Polish disciplinary measures for judges, as well as

mechanisms for political infiltration of the judiciary, incompatible with EU law.6 And, according to EU primacy rules, the Polish government would have to refuse to apply it. How to get around this? Prime Minister Morawiecki of Poland requested a ruling on the primacy of the EU and its relationship with the Polish Constitution. And in this controversial decision, the Constitutional Tribunal declared the TEU (or, at least, some articles) ultra vires in Poland. What does this mean? The EU has already criticised the ruling, with the Parliament putting through a resolution condemning the Polish Constitutional Tribunal’s decision (502 votes for, 153 votes against, 16 abstentions).7 Soon after, Prime Minister Morawiecki and the Commission President, Ursula von der Leyen, took part in a debate where the latter described “The ruling of the Polish Constitutional Court … [as] a direct challenge to the unity of the European legal order”.8 The MEPs voiced their concern for a strong democratic Poland, urging Polish citizens to take to the streets. Tens of thousands of peaceful protesters answered the call, demonstrating strong opposition to the decision. Therefore, if anything, this represents a key flashpoint in the ongoing tension between the EU and the current Polish government. However, there have been deeper concerns that this represents what some have dubbed “Polexit”. Does the decision mean Poland has asked to leave the European Union? This seems unconvincing. On a formal level, the case cannot be considered a request for withdrawal under Article 50(1) TEU; as Brexit has demonstrated, it is much more difficult to leave the EU than by some implicit court judgement. Furthermore, as some legal blogs have

THE PUPIL

pointed out,9 the judges on the bench who decided that Poland had primacy over the EU were appointed in breach of the Polish Constitution. In fact, it was their appointment by the Polish Parliament that caused such an outrage and led to accusations that Poland had besmirched the independence of the judiciary. It would be a mistake to assuage all fears of Polexit. The Prime Minister Morawiecki, six days after the 1

Adam Easton, ‘Poland’s top court ruling marks major challenge to EU laws’ (BBC, 7 October 2021) [https://www.bbc.co.uk/news/world-europe-58835758] Accessed 12 November 2021. 2 Case 6/64 Costa v. ENEL [1964] ECR 585. 3 Case 106/77 Simmenthal [1978] ECR 629. 4 Article 90(1) of The Constitution of the Republic of Poland. 5 Pieter Haeck, ‘Polish protests erupt against abortion law after woman’s death’ (Politico, November 7 2021) [https://www.politico.eu/article/poland-protest-abortion-lawdeath-woman/] Accessed 12 November 2021; BBC, ‘EU declared ‘LGBT freedom zone’ in response to Poland’s ‘LGBT-free zones’’ (BBC, 11 March 2021) [https://www.bbc.co.uk/news/world-europe-56366750] Accessed 13 November 2021. 6 Judgement of the Court (Grant Chamber) of 15 July 2021, European Commission v, Poland (Régime disciplinaire des judges), Case C-791/19, EU:C:2021:596. 7 Yasmina Yakimova, Kyriakos Klosidis, ‘Poland: Constitutional Tribunal is illegitimate, unfit to interpret constitution’. (European Parliament News, 21 October 2021) [https://www.europarl.europa.eu/news/en/pressroom/20211015IPR15016/poland-constitutional-tribunal-isillegitimate-unfit-to-interpret-constitution] Accessed 12 November 2021. 8 Yasmina Yakimova, Dorota Kolinska, ‘Poland: MEPs call for the primacy of EU law to be upheld’ (European Parliament News, 19 October 2021) [https://www.europarl.europa.eu/news/en/pressroom/20211014IPR14911/poland-meps-call-for-the-primacyof-eu-law-to-be-upheld] Accessed 14 November 2021. 9 Adam Łazowski, Michał Ziółkowski, ‘Knocking on Polexit’s Door’ (CEPS, 21 Oct 2021)

ARTICLE

judgement, stated Poland had no plans to leave the EU; it was ‘fake news’ and a ‘lie that aims to weaken the Union’.10 There is similarly not much public support for withdrawal, with 8 out of 10 wanting to remain.11 However, primacy is a fundamental tenet of EU law, and its strength lies in Member States accepting it. We will all have to be on the look-out for further developments in this story – this is probably just the beginning.

[https://www.ceps.eu/knocking-on-polexits-door/#_ftn2] Accessed 14 November 2021. 10 Piotr Maciej Kaczynski, ‘The Brief, powered by EPRA – How likely is Polexit? (EURACTIV, 19 October 2021) [https://www.euractiv.com/section/future-eu/opinion/thebrief-powered-by-epra-how-likely-is-polexit/] Accessed 13 November 2021. 11 Aleksandra Rebelińska, ‘Ponad 80 proc. Polaków za pozostaniem w Unii. Sondaź Kantar’ (Bankier.pl, 12 September 2021) [https://www.bankier.pl/wiadomosc/Ponad80-proc-Polakow-za-pozostaniem-w-Unii-Sondaz-Kantar8186349.html] Translated and accessed 14 November 2021.

THE PUPIL

ARTICLE

PRIDE, PREJUDICE AND PROPERTY: THE FEE TAIL THROUGH THE LENS OF LITERATURE BY RIVU CHOWDHURY The entail or fee tail is a historical type of tenure in land with restrictions or entailments upon the line of heirs to whom it may be willed. Established during feudal times by landed gentry to ensure primogeniture, the effects of the entail have been a key theme in many notable works of literature. Jane Austen and the fee tail Jane Austen’s depiction of regency England reflected not just the social conventions of the time, but the legal realities as well. 1 One of the prominent examples of this, is the entail or fee tail that proves a critical point in the plot of Pride and Prejudice. The fee tail is an estate of land and a proprietary interest, but it is closer in function to a form of trust established by deed, or a settlement which restricts the sale or inheritance of said property. It prevents alienation by any tenants in possession and results in the heir being determined by the operation of law. Pride and Prejudice has a particularly prickly problem arising due to the entail. The father of the protagonist, Elizabeth Bennet, only has a life interest in the estate. The entail was based on primogeniture, and thus the estate, the family home and their only source of income, was to pass to the next male heir. However, Mr Bennet only fathered five daughters, and his cousin, William Collins was to inherit. The five daughters thus would lose their homes and income upon their father’s death. As a result, a good marriage and the resulting security forms a key motivation for the daughters, and the ensuing attempts to attain this form the bulk of the story.

However, this depiction, while being the most famous one of the fee tail, is decidedly wrong. The fee tail has feudal origins as a mechanism for ensuring primogeniture, and by the regency period, entails while common, had become archaic. While valuable in the 13th century, the entails value was reduced in favour of the ability to freely sell, convey, and mortgage land. Thus, by the 15th century, the process of common recovery had arisen so as to allow the current master to bar an heir and convert the fee tail into a fee simple (absolute ownership) through legal fictions.2 In the 19th century, strict settlements would have been a stronger method to ensure the integrity of an estate, and they protected younger sons and daughters using the estate capital as well. However, the mistake in law is likely an accurate representation of how it was viewed. Although by the regency period, common recovery has become precedent, it was a murky and complicated process based on legal fictions and complex conveyancing, many solicitors would not have understood the process.3 The characters simply may not have known about the process. While Jane Austen probably did not know, it would have made for a far worse novel. Other works The fee tail also shows up in various other novels. In Kidnapped by Robert Louis Stevenson, the entire dispute arises due to the entailed land of the House of Shaws. The fee tail and other succession issues are a common theme in 18th century stories such as Middlemarch by George Eliot. Even in To Kill a

THE PUPIL

Mockingbird by Harper Lee, entailment of land prevents Mr Cunningham from raising cash by selling land.

ARTICLE

Modern day Luckily, none of us will face any issues regarding fee tails today, as the fee tail was abolished as a legal estate by the Law of Property Act 1925. It can

exist as an equitable interest, previously behind a strict settlement, and now in a trust of land following TLATA 1996 but no new ones may be created.4 While its legal significance is all but gone, it is kept alive in historical fiction, and while not literature, Downton Abbey is probably the most prominent example of the fee tail still being ever present.5

Treitel, G. H. "Jane Austen and the Law". The Law Quarterly Review 100 (1984): 549–586 for a detailed exploration. 2 Taltarum's Case Y. B. 12 Edw. IV. 19-21. 3 For a detailed explanation of the process see: Joseph Biancalana, The Fee Tail and the Common Recovery in Medieval England ( Cambridge University Press 2001).

Trusts of Land and Appointment of Trustees Act 1996 sch 1 para 5. 5 JB Ruhl, 'The Tale of the Fee Tail in Downton Abbey' [2015] Vanderbilt Law Review.

THE PUPIL

ARTICLE

A COMPASSIONATE LAW BY POLINA SUCHKOVA Lord Hoffman recently spoke at the Oxford Union, in favour of the motion, ‘This House Believes the Courtroom Should Not be a Forum for Advancing Social Justice’. In light of this discussion, the question that came to me was why we are so passionate about using the law to this respect. The predictable and usual answer is based on ideas of equality and fairness, but I think this begs the additional question of why we want to promote these values. To me, this answer lies in feelings of empathy and compassion; using our ability to understand and share the emotions of others, we are moved to act to their assistance and promulgate social change. Yet oddly enough, the current legal position views these feelings in judicial reasoning as a threat to logic, a path towards arbitrary decisions and with the potential to result in unnecessary leniency. Hobbes wrote centuries ago that a good judge should ‘be able in judgement to devest himselfe of all feare, anger, hatred, love, and compassion’.1 But such a standard is unrealistic — judges are not machines, and even in their best efforts to detach themselves from their ideologies, political beliefs and feelings, their way of thought and reasoning is inherently derived from their upbringing and their experiences of those emotions Hobbes’ lists. It should not be so controversial that good judicial reasoning can coexist with compassion. What many fear with judges giving regard to their emotions is that on that basis they will thus go against precedent simply in pursuit of what their compassion dictates. 1

Thomas Hobbes, Leviathan (first published 1651, Lerner Publishing Group 2018).

This is not at all what I am suggesting, and is unlikely to ever be the case. To go so far would be a grave interference with the balance struck in the separation of powers and would make consistency practically impossible. Bandes identifies two different roles compassion can play, firstly, one of influence in the substantive outcome, and secondly, as a means to understand the issues at stake for others.2 She argues compassion should only be used in the former sense. I think this is a very valuable distinction which deals with the concerns raised, because it frames compassion as an additional dimension for a judge to consider in order to better understand the value of the decision, rather than as a direct influence on the judgment. To summarise, what I am suggesting is not for judges to be wholly ruled by their feeling, but rather, when interpreting the law, judges do not pretend to ignore the compassion they naturally and almost unavoidably will feel, and instead use it as an additional tool. Doing so will lead to better reasoning, fairer outcomes and a society with more genuine values. The hesitancy thus far to accept the role of compassion has greater ties to our view of emotions as impulsive and something to be suppressed. This is not a suggestion for the complete overhaul of the current approach to judicial reasoning, and it is not a statement that compassion at present is a non-existent feature in the law, for a variety of UK legislation, including judicial review, planning law and criminal law to name a few, does value compassion.

Bandes SA, “Compassion and the Rule of Law” (2017) 13 International Journal of Law in Context 184.

THE OXFORD BAR SOCIETY Exclusively Sponsored By

THE PUPIL

ARTICLE

THE DECLINE IN LEGAL AID AND THE UNDERFUNDING OF THE CRIMINAL JUSTICE SYSYEM BY RHYS DUNCAN Over the past 15 years, the legal aid expenditure on criminal cases has decreased by just under £600m, falling from £1.57b in 2005/6 to just under £900m in 2019/20.1 This is principally caused by the decrease in the Ministry of Justice (MoJ) budget of approximately 25% during that same time,2 impacting not only legal aid, but more broadly the functioning of the criminal justice system. Within this same period, the number of criminal cases received and disposed of by the Crown Courts has decreased from 102.5% in 2010, eroding the case backlog, to only 96.5% in 2019,3 steadily increasing the number of unheard cases annually. This latter statistic is most likely a direct result of the significant decrease in Crown Court sitting days over the past decade, dropping from 110,000, down to only 86,000 in 2019. This was a notable change prior to the Covid-19 pandemic, which saw an even greater and more drastic fall.4 Were this not bad enough alone, in June this year, following the worst of Covid-19, the backlog of Crown Court cases in England and Wales sat at an eyewatering 60,692, a rise of 19,000 since March 2020.5 The current issue, thus, could not be more prevalent, nor could the causative relationship with underfunding be clearer despite the exacerbation of Covid-19. At the recent Lord Mayor’s annual dinner for HM Judges, the Lord Chief Justice stated

that, arguably, the most significant impact of underfunding was a lack of judges and staff, alongside a lack of the quantity and quality of buildings, and technology required to facilitate efficient trials. This, he attributed to ‘years of budgetary squeezes’ which have ‘reduced the resilience and flexibility of the courts and tribunals, limiting capacity’.6 He further stated that there was required sufficient and significant long-term funding in order to repair the justice system, both to reduce the current backlog, and to prepare for future issues and impediments which may arise. According to an MoJ estimate in April this year, £500m would be needed between 2021 and 2024, in addition to a further £1.7b for legal aid, prisons, and probation, in order to reduce the backlog to below 50,000.7 Such a reduction would still be far from the prepandemic figure of approximately 41,000 cases, itself far from ideal. On this basis, it is clear that the severe cuts to the MoJ budget, and in turn, court and legal aid funding, have had a significant, problematic, and deeply concerning impact on the functioning of the criminal justice system. This has resulted in an extensive backlog of court cases, the reduction of which will take a significant number of years and come at a great financial cost. Furthermore, it

THE PUPIL

ARTICLE

should be evident that this is not a short-term issue and that long term and permanent funding is required to prevent future growth in the case

backlog and ensure efficient trials within the criminal justice system.

D Clarke, 'Legal aid spending in England and Wales 20052020' (Statista, 2 November 2020) <https://www.statista.com/statistics/1098628/legal-aidspending-in-england-and-wales/> accessed 25 November 2021 (Figures adjusted for inflation). 2 G Sturge, J Robins, Y Zayed, A Bellis, 'The spending of the Ministry of Justice' (House of Common's Library , 1 October 2019). <https://commonslibrary.parliament.uk/researchbriefings/cdp-2019-0217/> accessed 25 November 2021 3 Ministry of justice, 'Criminal court statistics' (GOVUK, 22 June 2018 ) <https://www.gov.uk/government/collections/criminal-courtstatistics> accessed 25 November 2021.

Dominic Casciani, 'Deal struck to combat Crown Courts backlog' (BBC News, 22 April 2021) <https://www.bbc.co.uk/news/uk-56847285> accessed 25 November 202.1 5 Jane Croft, 'UK criminal court case backlog set to last ‘several years’ ' (Financial Times, 22 October 2021) <https://www.ft.com/content/3bdabc0d-782f-45d0-892f93fdf700a99d> accessed 25 November 2021. 6 Monidipa Fouzder, ''We don't have enough judges, staff or courts' - LCJ' (The Law Society Gazette, 22 October 2021) <https://www.lawgazette.co.uk/news/we-dont-have-enoughjudges-staff-or-courts-lcj/5109140.article > accessed 8 July 2021. 7 Supra note 5.

THE PUPIL

ARTICLE

REVISITING THE LEVESON INQUIRY: ARTICLE 8 VS ARTICLE 10 BY FREDERICK FOULSTON In July 2011, the News of the World was shut down following public outcry at the alleged phone hacking of murdered schoolgirl Milly Dowler. The News of the World also faced condemnation for allegedly hacking the phones of victims of the London 7/7 bombings and a host of celebrities from Hugh Grant to Sienna Miller. In response, the UK government placed Lord Justice Brian Leveson in charge of a long-awaited inquiry into the culture, practices and ethics of the press. The inquiry hinged on the balancing act between freedom of expression in the press and individual rights to privacy. Public feeling at the time determined that the tabloids had been drastically overstepping the mark for years in their encroachment upon individual privacy, a human right, as defined in Article 8 of the 1998 Human Rights Act: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’.1 Leveson later concluded in his report that the emotional damage done to the parents of Milly Dowler and the families of the 7/7 victims, was devastating. The second clause of Article 8 stipulates that ‘there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.2 The News of the World would

have a hard time arguing that the hacking was justified, even if they admitted to its widespread occurrence in the first place, a fact they tried to hide by attributing the hacking to only a few unnamed individuals. The establishment of an independent press regulator following the Leveson inquiry was crucial to ensuring that the rights of the individual under Article 8 were better protected. Yet there were concerns at the time that this stringent new regulator might then disregard the almost antithetical Article 10 of the Human Rights Act: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’.3 The second clause stipulates that ‘the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary’.4 In a legal context, the press must be able to justify invasion of privacy on these grounds. The same questions are still wrangled over today: what information should be made public or should remain private for ‘the protection of health or

THE PUPIL

ARTICLE

morals’? What constitutes public interest? Leveson found that there was a willingness to deploy covert surveillance, blagging and deception in circumstances where it is extremely difficult to see any public interest justification.

‘national security’. The same balancing act continues to infuse public discourse today, and yet the question is further complicated by the growing insidious influence of murkier forms of media, multimedia, and social media.

Throughout history dictators have been known to interfere with both individual privacy and the freedom of the press on dubious grounds of

How will the law change to reflect the necessity for tighter regulation?

Human Rights Act 1998, s 8 (1). Human Rights Act 1998, s 8 (2).

Human Rights Act 1998, s 10 (1). Human Rights Act 1998, s 10 (2).

THE PUPIL

ARTICLE

WHISTLEBLOWING AND BIG TECH BY BEA MUNRO Whistleblowing has come to the fore in the recent testimony in US Congress and to the UK’s Joint Committee for the draft Online Safety Bill.1 Whistleblowing is defined as the act of disclosing information about wrongdoing in the workplace.2 This article takes examples from the US (as it refers to Big Tech) but comments on the state of whistleblowing under UK law. The Outcome of Whistleblowing The desired impact of whistleblowers is to effect a change in the company they work for. Often whistleblowers act out of a perceived need to expose the harms committed by their employer. Initially, whistleblowers may raise an issue internally, attempting to effect change within their company. But, after this fails, they determine that external awareness of this issue is the only way for true change to be achieved. The Current UK Law Whistleblowers are protected under UK law by the Public Interest and Disclosure Act 1998.3 This protects whistleblowers who perceive that their information is within the public interest. Disclosures cannot simply be for personal gain. It is clear that Big Tech whistleblowers attempt to achieve certain goals via their actions, especially considering the significant risks to themselves when they expose large companies. UK law currently protects such Big Tech whistleblowers under the public interest clause, but is deficient in other areas. Impact and Analysis of Legislation An issue inherent in the UK’s workplace is the prevalent anti-whistleblower culture.4 The interests of large corporations are deemed to be supreme, and

that it is not the place of workers to question their actions. In order for companies to avoid the damaging effects of whistleblowing, the Act implicitly encourages the establishment of internal whistleblowing procedures. But it is clear from the most recent Facebook testimony that these practices are rarely implemented and are ineffective. Current UK regulation does not provide sufficient incentives to companies to heed the warnings of their workers.5 The Public Interest and Disclosure Act 1998 requires that an employee have followed the provisions set out by their company before raising their claims externally. Therefore, it is in the interests of both employer and employee to have more robust and effective internal systems. The Public Interest and Disclosure Act has arguably entrenched whistleblower guidelines, creating certainty within the law. But it is still the case that a whistleblower who is denied the protection of the Act is open to litigation.6 This can deter prospective whistleblowers, and can shut down those who are attempting to expose large corporations. Whistleblower legislation is supposed to provide protection for the weak in the face of the strong. In the case of Big Tech, it is failing to do so. The Reality of Whistleblowing Whistleblowers are inherently attempting to change something when they act. But the limitations of whistleblowing are clear to see. A whistleblower is singular: an individual standing up to a huge corporation.7 It is unlikely that their singular testimony will produce their desired result. Whistleblowers can be effective figureheads for reform, but only if their message cuts through to a receptive audience. Who is given the stand, and

THE PUPIL

what message they put across, is a clear limitation on the abilities of whistleblowers to alter the status quo. The impact on the whistleblower themselves is also significant, and is something which the current law does nothing to consider. Take Timnit Gebru, who was fired from Google after refusing to retract a paper highlighting the weaknesses in the company’s AI searching software.8 Although some whistleblowers are lauded, others are shunned, publicly abused and are exposed to litigation that would ruin them further. The devastating impact of whistleblowers’ actions is often on themselves, not the companies they target.

James Clayton, ‘Silenced no more: A new era of tech whistleblowing?’ (BBC, 11 October 2021) https://www.bbc.co.uk/news/technology-58850064 (Accessed 31 October 2021). 2 UNION, ‘Whistleblowing Factsheet’ (28 June 2017) https://www.unison.org.uk/get-help/knowledge/disputesgrievances/whistleblowing/ (Accessed 30 October 2021). 3 Public Interest and Disclosure Act 1998, s 1. 4 K Bouloy, “The Public Interest Disclosure Act 1998: Nothing more than a ‘Cardboard Shield’” [2012] Manchester Student Law Review Vol 1, 1 pp.1. 5 J Gobert and M Punch, “Whistleblowers, the Public Interest, and the Public Interest Disclosure Act 1998” [2000] The Modern Law Review Vol 63, 1 pp.25. 6 D Lewis, “Ten Years of Public Interest Disclosure Legislation in the UK: Are Whistleblowers Adequately Protected?” [2008] Journal of Business Ethics Vol 82, 2 pp.497.

ARTICLE

Conclusion In all, whistleblowers have failed to substantially affect government policy towards Big Tech. Although testimony raises awareness, it does not motivate governments to act in any significant way. Perhaps this is due to the weaknesses inherent in the whistleblower model, or instead due to governments’ desire to keep Big Tech onside.9 Nevertheless, it is clear that whistleblowers are not the remedy to the evils of Big Tech, and that the UK’s law under which they voice their concerns is rigged against them.

OS Keyes, ‘The Facebook Whistleblower Won’t Change Anything’ (Wired, 10 October 2021) Available at: https://www.wired.com/story/facebook-whistleblower-wontchange-anything/ (Accessed 31 October 2021). 8 J Bhuiyan, ‘“Welcome to the party”: five past tech whistleblowers on the pitfalls of speaking out’ (The Guardian, 9 October 2021) Available at: https://www.theguardian.com/technology/2021/oct/08/techwhistleblowers-facebook-frances-haugen-amazon-googlepinterest (Accessed 31 October 2021). 9 K Kitchen, ‘The New Superpowers: How and Why the Tech Industry is Shaping the International System’ (National Affairs, Autumn 2021) Available at: https://www.nationalaffairs.com/the-new-superpowers-howand-why-the-tech-industry-is-shaping-the-internationalsystem (Accessed 31 October 2021).

THE PUPIL

ARTICLE

I BELIEVE IN FAIRIES: ON THE LEGITIMACY OF INTERNATIONAL LAW BY IMOGEN RIVERS Something magical happens in Peter Pan. In order to save Tinker Bell, all the world’s children have to say, “I believe in fairies”. In this essay, I argue that the legitimacy of international law works in a similar way: the legitimacy of international law depends ultimately upon its subjects believing in its legitimacy. Conversely, the upshot is that philosophers of law do a dangerous job: the interrogation of the legitimacy of international law itself risks destroying any actual legitimacy that adheres to international law. The Legitimacy Question Since the Second World War, the ambit of authority claimed by international law has expanded to include not just the United Nations and its judicial arm, the International Court of Justice (ICJ), but also the World Trade Organisation (WTO), the International Criminal Court (ICC) and a plethora of human rights treaty bodies and institutions. Furthermore, there is some impetus to extend the authority of international law still further in order to coordinate international response to global problems, such as climate change, the proliferation of weapons of mass destruction and pandemics. This raises the legitimacy question: is the power exercised by international legal institutions appropriate? There are two central ways to cash this question out: first, in terms of a right to rule; second, in terms of the justified use of coercion. In this article, I argue for a realist justification of the international legal use of coercion, one which grounds the legitimacy of international law in distinctly political institutions rather than general moral reasons.

Legitimacy as the Right to Rule In his (2010), Tasioulas propounds a Razian account of international legal legitimacy as the right to rule.1 On this view, insofar as international law claims to be law, it necessarily claims legitimate authority over its subjects.2 The legitimacy question, then, concerns whether this claim is justified. To approach the legitimacy question, we need to understand the claim of legitimate authority. Any authority claims to give its subjects pre-emptive reasons for action, ones which also exclude certain competing reasons.3 An authority is effective when it gets subjects to act on these reasons.4 An effective authority is legitimate when it not only gets subjects to act on these reasons— viz., it purports to change the reasons which apply to them—but also genuinely changes the reasons which apply to subjects.5 So does international law constitute a legitimate authority? It certainly issues directives that are to some extent effective and which purport to be preemptive, exclusionary reasons for action. Think, for example, of how it is usually taken to be a criticism—a prima facie normative objection— when NGOs point out that a state has breached international law. But does international law genuinely change the reasons which apply to its subjects (primarily states) when it issues directives? The problem which Tasioulas points out is that the reasons which genuinely apply to subjects depend on both the domain (e.g. whether trade or security is at issue) and the subject (e.g. whether the state is rich and powerful). So legitimacy too is both domain- and subject-specific. There is, therefore, no general answer regarding the legitimacy of

THE PUPIL

international law. Whilst Tasioulas (2010) does not see this as fatal to his account, such a result seems to me a product of thinking that legitimacy is a question of applied morality.6 I wish now to show that this isn’t the only way to analyse legitimacy. Legitimacy as Justified Coercion In his posthumous work (2013), Dworkin cashes out the question of legitimacy in international law in terms of whether the exercise of coercion by international legal institutions (e.g. the ICJ, the ICC or the WTO) is justified.7 The heart of his case is that the legitimacy of international law derives from the demand that individual states should be legitimate. Why? Since legitimacy is by definition the justification of coercion for Dworkin, each coercive state government has a duty to improve its own legitimacy. In a post-Westphalian system of interacting states, if a state can facilitate an international order in a way that would improve its own legitimacy, it therefore follows that it has a pro tanto duty to do what it can in that direction. Now, the international world order exposes its subjects to a variety of new threats to their legitimacy, since it exposes states to threats to the basic security of their citizens (by violence, trade wars, climate change and pandemics) which only international cooperation can solve. So, states should further an international legal system that protects their subjects from such contingencies.8 Conversely, the international world order offers new ways for states to further their own legitimacy, for instance through supporting an international legal order which promotes the basic human rights of their citizens and prevents that state from deteriorating into 1 John Tasioulas, “The Legitimacy of International Law” in

The Philosophy of International Law, Besson and Tasioulas (eds.) (Oxford: Oxford University Press). 2 See Joseph Raz, “Authority, Law and Morality” in Ethics in the Public Domain (Oxford: Oxford University Press, 1994). 3 For example, a teacher orders her students to do their homework and expects that her say-so gives the students reason to do so, a reason which overrides their competing desires to read The Morality of Freedom instead. 4 In this case, the students do their homework. 5 Indeed, although the students do their homework, it might be the case that they have more reason to read The Morality of Freedom than to do homework, for instance because the former better serves their development of autonomy. In such a case, the teacher is not a legitimate authority.

ARTICLE

tyranny (2013: 17-19). For Dworkin, therefore, the duty of each state to further its own legitimacy provides the normative core for the analysis, evaluation and extension of international law. One key element of this account, however, which Dworkin neglects, is that the duty of each state to promote its own legitimacy only translates into a duty to comply with an international legal order— one which facilitates, say, cooperation in the face of threats by violence, trade, climate change or pandemic—subject to the assumption that other states are also complying with that legal order.9 But other states only comply with an international legal order if they believe that it is legitimate. So, legitimacy depends upon compliance, and compliance depends upon belief in legitimacy: subjects must believe that international law is legitimate, and therefore comply with it, in order for international law to in fact be legitimate. Conclusion I conclude that the legitimacy of international law is a little like Tinker Bell: in order to make it exist, everyone has to believe that it already exists. The upshot of this, of course, is that philosophers of law do a very dangerous job: in pointing to the originally mistaken belief in legitimacy which everyone has to share in order for international law to become legitimate, we risk destroying its legitimacy. Indeed, it might eventually enhance the legitimacy of individual states to rule against interrogating the legitimacy of international law at all.

See Bernard Williams, “In the Beginning was the Deed”, Hawthorn (ed.) (Oxford: Princeton University Press, 2005) and Raymond Guess, “Philosophy and Real Politics” (Oxford: Princeton University Press, 2008: 9) for criticism of this “political moralism” or “ethics first” approach to legal and political philosophy. 7 Ronald Dworkin, “A New Philosophy for International Law”, Philosophy & Public Affairs 43(1) 2013. 8 In a similar vein, Williams appeals to the Hobbesian first political question, stating that a sine qua non of an acceptable political system concerns “the securing of order, protection, safety, trust, and the conditions of cooperation (2005: 3). 9 After all, if only one state complies with international law, then it leaves itself open to exploitation and free-riding by noncomplying states, a situation which would reduce that state’s actual legitimacy in the eyes of its citizens.

THE PUPIL

ARTICLE

PREDATORY MARRIAGES BY JASMINE KNAPMAN A predatory marriage occurs when a person marries someone vulnerable for financial gain. A typical predatory marriage would involve the predatory husband or wife marrying an elderly or disabled person in order to access their estate when they die.1 The Issue Under English law, marriage automatically invalidates a will. This means that once a predatory marriage has taken place, any previous will that the vulnerable person had prepared leaving their assets to their family will no longer apply. Instead, their estate will be distributed under the rules of intestacy. Under intestacy rules, most or all of the deceased’s estate will be granted to the surviving spouse, however short the marriage. Once the deceased has died they obviously cannot bring a claim to void the marriage and neither can their family. Nothing can be done to stop the ’marriage predator’ receiving a huge windfall from the vulnerable person’s estate.2 Predatory marriages are facilitated by the low threshold for capacity to marry in English law. Following Sheffield,3 all that is required for someone to have the mental capacity to marry is to understand the nature of the marriage contract and be mentally capable of understanding the duties and responsibilities that normally attach to marriage. There is no need for the individual to understand the implications of a particular marriage. This presents an issue in the predatory marriage context, as it means an individual may be deemed to have capacity to consent to a marriage even when they have not and could not understand this will lead to the automatic revocation of their will and the granting of their assets to their spouse on their death. Case Study The case of Joan Blass illustrates the injustice caused by predatory marriages.4 Joan was 87 and

suffering with dementia when a much younger man befriended her, eventually moving into her home as her ‘carer’. Joan subsequently married this man, unbeknown to her daughter Daphne. Upon Joan’s death, Daphne was horrified to find that the marriage gave Joan’s ‘carer’ complete control over her funeral arrangements and her estate. Discussion It is clear that the existing law is defective if vulnerable individuals such as Joan Blass can be left helpless at the hands of ‘gold-diggers’ who marry them knowing they are unaware of the financial implications of the marriage. Existing loopholes in the law must be closed, but it is not clear how this would best be achieved. There is a risk of paternalism here — the law cannot refuse to recognise a marriage simply because it does not fit the idealised vision of a couple with a balanced power dynamic marrying for love. Whilst requiring a stricter level of capacity to marry could lower the chances of vulnerable persons ending up in exploitative marriages which they have not given informed consent to, it could also discriminate against elderly and disabled people by denying them the freedom to enjoy marriage. The Marriage and Civil Partnership (Consent) Bill is currently on its 2nd reading in the House of Commons. This Bill would require the person registering a marriage or civil partnership to attest the valid consent of both parties to the marriage or civil partnership before it is solemnized. 5 It is to be hoped that this bill will become law — requiring marriage registrars to consider the capacity of prospective spouses to consent to marriage should provide a valuable safeguard against predatory marriages. The rules regarding the formation and revocation of wills could also be reviewed. If some formalities

THE PUPIL

ARTICLE

were required before a marriage could revoke an existing will, vulnerable spouses would be less likely to find their wills revoked against their wishes. Greater provision of adequate social care may also mean single older people are less likely to accept help from a ‘carer’ with predatory motives.6

The problem of predatory marriages will not be an easy one for the law to solve, but it is important that steps are taken to address the ease with which predatory suitors can exploit people like Joan Blass.

Editorial, ‘The Guardian view on predatory marriage: new safeguards are needed (The Guardian, 3 Oct 2020) < The Guardian view on predatory marriage: new safeguards are needed | Editorial | The Guardian> accessed 13 November 2021. 2 The rise of ‘predatory marriages’ (Family Law, 29 March 2019) < The rise of ‘predatory marriages’ (familylaw.co.uk)> accessed 13 November 20201. 3 Sheffield City Council v E [2004] EWHC 2808 (Fam).

The rise of ‘predatory marriages’ (Family Law, 29 March 2019) < The rise of ‘predatory marriages’ (familylaw.co.uk)> accessed 13 November 20201. 5 Marriage and Civil Partnership (Consent) Bill Parliamentary Bills - UK Parliament. 6 Editorial, ‘The Guardian view on predatory marriage: new safeguards are needed (The Guardian, 3 Oct 2020) < The Guardian view on predatory marriage: new safeguards are needed | Editorial | The Guardian> accessed 13 November 2021.

THE PUPIL

ARTICLE

FACTORS NOT CONSIDERED – ASPECTS OF A UK WEALTH TAX IN NEED OF FURTHER DISCUSSION BY GEORGE BEGLAN Introduction A one-off wealth tax has been touted in recent times as a good solution to help balance the nation’s books after the record spending and borrowing which characterised its COVID-19 response. This article will detail some portion of the list of variables which seem to have been omitted by those arguing in favour of such a tax, and what obstacle to it they constitute. Retroactive Taxation As far as the perception or attempt at consent to governance in a society matters to you, retroactive taxation like this is a corresponding aberration. It changes the terms on which people made decisions previously without giving any chance for alteration and which they would not have been able to predict at the time. Some may argue that, in the context of the rates often put forward, in the realm of 1-5%,1 behaviour wouldn’t likely have changed. Though a compelling analysis in most cases, it’s still a consequential objection to a deontological claim — an easy retort but one which only retains value to people who accept its frame; those objecting on this ground may not. Supply-Side Inflation This one’s rather more tenuous. It’s not immediately clear that actively producing wealth would be taxed at all, or in the same way as passive wealth. It’s therefore not an immediately causative

objection, but the statement likely holds true that a wealth tax would, in aggregate, affect those supplying an economy rather than those generating the preponderance of demand. What’s the issue then? Well, supply-side inflation outstripped demand-side in the UK by more than double last quarter — even if one believes that a wealth tax would only apply at levels where that ceases to matter for any practical purpose of those immediately concerned, one could still be receptive to the idea that now is not the time.2 Especially because, the preponderance of that cost is likely to fall to those generating demand in the form of increased prices, presuming both a link between the two and that elasticity permits. Upsetting the Balance Applying a flat % tax never affects everyone in the concerned class equally; the same goes for those affected by a wealth tax. One might write this off on its own terms; that doesn’t immediately solve what it might lead to. Again, it’s often not enough for these kinds of entities to make a profit, but the most profit. A wealth tax maximises the relative power of the wealthiest to buy out those beneath them and concentrate power in their own hands; those concerned with equality might see some increases in their gameable criteria but make the very driving forces behind those criteria more powerful exactly contrary to their intended goal. Which moves nicely into the final objection...

THE PUPIL

Goodhart’s Law The final point put forward about a successful wealth tax is that it would have to be convincingly one off.3 I cannot think of any person to whom a wealth tax would apply, who would be so deliriously naïve as to think this a credible course of action once the idea of a wealth tax became accepted. It’s not so much that the lawyers or financiers incepting the idea have any intention to the contrary; the problem is the application of Goodhart’s law once you turn the wealth tax over to politicians. Turning wealth from a passive indicator of progress, for the purposes of tax, into an actively gameable variable means exactly that; it will be gamed for, and it’s difficult to resist the prospect of 1

Advani, A., 2021. A wealth tax for the UK. [online] Wealthandpolicy.com. Available at: <https://www.wealthandpolicy.com/wp/WealthTaxFinalRepo rt.html> [Accessed 14 November 2021]. 2 “United Kingdom Inflation RATE2021 DATA: 2022 Forecast: 1989-2020 Historical.” United Kingdom Inflation Rate | 2021 Data | 2022 Forecast | 1989-2020 Historical, TradingEconomics, 20 Oct. 2021, https://tradingeconomics.com/united-kingdom/inflation-cpi. 3 Bateson, Jo. “Wealth Tax Commission Final Report Recommends a One-Off.” KPMG, KPMG, 14 Dec. 2020, https://home.kpmg/uk/en/home/insights/2020/12/tmd-wealth-

ARTICLE

a piggy bank worth trillions at the best of times.4 Let us not forget how the income tax was branded in 1798 as a temporary measure to tide spending over... the day HMRC convinces us that the wealth tax would be one-off is the same day it stops collecting National Insurance receipts.5 Conclusion Wealth taxes as currently conceived violate all consent to governance. It is not the right time to bring one in on the econometrics; and even if it were those advocating for it seem to eliminate concerns about iteration by refusing to even entertain the idea. This cannot stand.

tax-commission-final-report-recommends-a-one-off-wealthtax.html. 4 Kidd, Carla. “Total Wealth in Great Britain: April 2016 to March 2018.” Total Wealth in Great Britain - Office for National Statistics, Office for National Statistics, 5 Dec. 2019, https://www.ons.gov.uk/peoplepopulationandcommunity/pers onalandhouseholdfinances/incomeandwealth/bulletins/totalwe althingreatbritain/april2016tomarch2018. 5 Clark, Gregory. “The Annual RPI and Average Earnings for Britain, 1209 to Present (New Series).” Measuring Worth Annual RPI and Average Earnings for Britain, MeasuringWorth, 1 Nov. 2021, https://www.measuringworth.com/datasets/ukearncpi/.

THE PUPIL

ARTICLE

LEGAL ADVICE PRIVILEGE: WHAT IS IT AND HOW SHOULD IT OPERATE? BY CONNIE TRENDLE As undergraduate law students, our studies largely revolve around substantive points of law. Issues of procedure and practicality might appear less significant, but the way in which the law works in the real world bears influence on the substance of the law, and an understanding of legal procedure brings a new lens with which we can critique, analyse and understand the legal issues. The recent case of R (Jet2.com Ltd) v Civil Aviation Authority established that legal advice privilege applies where a document has been brought into existence with the dominant purpose of it, or its contents, being to give or seek legal advice.1 A document protected by legal advice privilege does not have to be disclosed to the court. Is Legal Advice Privilege justified? The principle of Legal Advice Privilege seeks to protect an individual right to seek effective advice from lawyers in connection with their affairs, thus allowing the advisee to disclose full information relevant to their claim.2 This right, however, exists in tension with the need for disclosure of relevant material which could be crucial to the outcome of a case. There is potential for Legal Advice Privilege to hinder fairness of trial. With this tension in mind, this article draws your attention to two considerations, both of which call into question the appropriate scope of the Legal Advice Privilege principle.

The meaning of ‘legal advice’ There might be a question as to whether ‘legal advice’ should be strictly confined to the advice of a solicitor to their client, or whether the concept should be understood more broadly, such as to include, for example, the ‘legal’ advice of a nonlawyer, or the general communication between a solicitor and client that does not directly request or provide legal advice. In Balabel v Air India,3 the court understood a ‘continuum of communication’ between client and solicitor, thus allowing Legal Advice Privilege to extend to communication in which legal advice was not directly sought or provided. There is a risk that this principle could be stretched too far, and this is particularly pertinent in today’s society, where the work of lawyers is often conflated with ordinary business work: might corporations abuse Legal Advice Privilege by employing lawyers on matters which have much more to do with business than with legal advice? Multi-addressee communication The case of Jet2 brought up for consideration the impact of Legal Advice Privilege on multiaddressee communication, where one party is a lawyer and another is not. Hinkbottom J held that the dominant purpose test should apply, such that only where the dominant purpose of the whole communication was to obtain legal advice will the principle of Legal Advice Privilege apply. Alternatively, the communication could be seen as

THE PUPIL

distinct, such that communication to the nonlawyer, as differentiated from the communication to the lawyer, is disclosable. Might this be an overly harsh position for the advisee who seeks legal and commercial advice in the same communication, unaware of the way Legal Advice Privilege operates? One way of adopting a more lenient view, returning to the case of Balabel, would be to draw analogy between the vertical ‘continuum of communication’ that allows communication between solicitor and client that does not explicitly relate to legal advice to be covered by the privilege. Perhaps then, there should also exist a horizontal ‘continuum of communication’ which allows communication relating to legal advice between an advisee and a 1

The Civil Aviation Authority v Jet2.Com Ltd, R. (on the Application of) [2020] EWCA Civ 35.

ARTICLE

third party to be protected by the privilege by virtue of its connection to legal advice communication with an actual lawyer. In this way, the scope of Legal Advice Privilege could be extended so as to better protect the expectations of the advisee. Conclusion It is clear then that the boundaries and scope of Legal Advice Privilege have the potential to be flexible, and it is important that we expand and narrow the principle with due care for the conflicting interests of the advisee and of the other parties at trial. With this understanding, we might move to consider how the presence of Legal Advice Privilege undermines, or enhances, points of substantive law.

Three Rivers District Council & Ors v. Bank of England [2004] UKHL 48. 3 Balabel v Air India [1988] Ch. 317.

THE PUPIL

IN CONVERSATION WITH

Kim Hollis QC Journeying from years in the UK Criminal Bar to a year with the 17th Karmapa in India Q. Was there a particular moment, as you were growing up or studying, when you decided that you wanted to become a barrister? A. I never wanted to be a barrister. It’s been the most magical journey. My father, who has passed away, was a Sikh and my mother is English and they met just after the war. My grandfather on my father’s side was an independence freedom fighter with Gandhi, and he was a barrister. He was involved in the Amritsar massacre and he was charged, by the British government at that time, with incitement to riot. He was imprisoned awaiting trial before being acquitted. Because of his imprisonment in such awful conditions, he died very young. My father left India when he was seventeen years old, came to the United Kingdom and never saw his father again, so I never knew my grandfather. But all my life when I was growing up, I was always told, “you’re going to be a barrister, like your grandfather”. I wanted to be an actress. You’ll find that lots of barristers always wanted to be on the stage. In fact, many years ago, in the 17th or 18th century, barristers and actors used to interchange. Barristers, when they didn’t have work, used to go and be actors on stage in the West End. I wanted to be an actress, but of course that was totally unacceptable for an Indian father. He was terribly clever and he said to me, “yes of course you can be an actress darling, but just get your law degree”. So then I qualified and I did a pupillage in a very flashy set of chambers called One Crown Office Row, where they did commercial and civil and a tiny bit of family law and crime. There was a lady there called Betty Knightly and Betty Knightly was in charge of the family law and she got me into the set. In September 1979 to September 1980 I did my pupillage. In those days, if you were a woman at the Bar, you

were expected to do family law. And if you didn’t do family law, you then did crime, and there was really very little hope for you if you did commercial. My actual pupil master was a lovely man called Michael Irvine, who was an MP. I did my next bit of pupillage with someone else in the set called Terrance Walker. Terrance was a criminal advocate and that’s when I started to do crime. Q. Prior to taking silk in 2002, did you have any preconceptions of the UK Bar and if so, how did your entrance into the Bar align or contrast with these ideas? A. No, I had no preconceptions of the UK Bar. People have often asked me, “when you were a junior barrister, were you ever discriminated against, because you were a woman?” Only once. Only once, which isn’t bad actually, in the circumstances — bearing in mind I was at the Bar in the early 1980s. That was really because the chambers didn’t realise my background and my heritage. I’ll never forget it. They gave me an interview for a tenancy and they almost offered me the tenancy over the phone. When I walked into chambers, their faces just fell. It was just amazing. They wanted to revoke their tenancy offer. I wouldn’t let them off the hook, because I could tell. I remember coming out of there and feeling really awful. All of my colleagues who I had been at Bar school with — the Inns of Court School of Law with — had all gotten tenancies and I hadn’t. Even the women. At this point, I was thinking, “is this to do with the fact that I’m a woman. Is this to do with the fact I’m half Asian — I’m not quite sure what’s going on here”, as I had done pupillage in a very reputable set of chambers. I remember sitting in the Middle Temple library with the Bar list, and looking down the list and thinking to myself, “you need to lower your sights as to the type of chambers you’re

THE PUPIL

going to apply to”. So I started looking down the list of chambers and I found a set of chambers, where it had a huge diversity of tenants. So I wrote a letter and I put it in my handbag and I walked around for a week as I was so disheartened that I didn’t want to post it. I posted it and the Head of Chambers, within the following day, rang me up and asked me to go and see him. He was an absolutely wonderful man. He was called Tunji Sowande and he was the first black judge of the UK. He gave me a chance. He said to me, “we’re not the flashiest chambers in the Temple. I can’t guarantee you tons of work, but I can guarantee you a couple of briefs a week. What I want you to do is go away and see if you can find somewhere better and I’ll leave the offer open to you for a month”. I went home and my Dad was wonderful and he said, “that’s so exciting — you’ll just be brilliant wherever you go, so just take it”. And I did. It was wonderful, it was a real advantage. I think they really did me a service in a way. What happened was, it meant that instead of relying on the clerks in the established sets to direct me in practice and to give me the work, I was able to find my own work and build my own practice which I was in control of. So actually, I became much more successful ultimately, than some of my colleagues that I was called to the Bar with. It made me hungry to survive. If I had got into the set of chambers where I’d been a pupil, I wouldn’t have been as hungry. I knew that there would have been a constant stream of work. But in my experience there wasn’t a constant stream of work. Q. As a bencher at Gray’s Inn, one of the four Inns of court, would you say there’s anything in particular about the identity of Gray’s Inn that sets it apart from the other Inns? A. About a week ago I hosted a lunch here with the Prime Minister of Belize and all the Ministers who were here for COP26, and we were talking about the Inns. Gray’s is the smallest of the Inns, but it is, I think, the friendliest. And we all think it’s the friendliest. Gray’s has always been a very accessible Inn: its masters are accessible and its students are well supported. We have the same functions as some of the other Inns but I think it’s great for the students of all the Inns to be able to mix

IN CONVERSATION WITH

and talk to the Court of Appeal and the High Court judges. Q. As the UK’s first female Asian QC, what are your personal reflections on the current success of the UK Bar in achieving gender balance and diversity and what would you say are the necessary measures and pertinent points of discussion in securing the highest level of gender balance and diversity within the Bar? A. I don’t think that the pace of the gender and indeed the race balance has been fast enough. I was Chair of the Equality and Diversity Committee of Bar Council for about ten years. For many years I have been in favour of targets and quotas. I have been criticised for that view because people have said they don’t believe in targets. People do not understand the difference between positive action and positive discrimination. Positive discrimination is illegal. Positive action is not illegal. Positive action is quite important as far as I’m concerned. I was interested to hear last Saturday, as I’m now on the Bar Council as the representative of the Inn, that the Bar Council is now looking at encouraging targets. The thing that’s worrying me most at the moment is that there has been a real push, obviously, to try and encourage and try and put in place measures that are going to assist in relation to the diversity of the Bar. But that is not being considered in relation to the brain drain that is going on at the more senior levels of the Bar. So, it’s all happening at the bottom, but it’s not happening at the top. As usual, at the top, I think there is a drain in relation to equality and diversity. The pandemic has, I think, particularly badly affected women. I also think it has very badly affected the race diversity as well. I know that the Lord Chancellor’s Department of Judicial Appointments Commission is trying to appoint in the tribunals and in the judiciary, a more diverse judiciary. But we’ve been telling them for years that they should have been doing this and they weren’t going fast enough and now they’ve really speeded it up. For those who are coming through at the bottom now, it’s going to take them thirty years. If those of us who are at the top are leaving because

THE PUPIL

we’re not being supported, they will not have the mentors, they will not have the role models. Everybody will go. The Criminal Bar is dying on its feet because of legal aid and because of the cuts in legal aid in the criminal justice system. As usual, at the Criminal Bar, it will be the women who will suffer first because, first of all, we have always been directed towards sexual offences work. We find that in corruption and fraud and all the big trials, the men are always briefed over the women. When you make those points, they say, “oh well, it’s the clerks”. Then you speak to the clerks and the clerks say, “oh well, it’s the solicitors”. And then the solicitors say, “oh well, it’s the clients.” So, we need to do a complete rethink. But you need to give people the chance to prove that they can do the work consistently. That’s why you’ve got the pay gap, at the top as well. The pay gap goes throughout the Bar from the bottom to the top, as far as women and race is concerned. Q. What are the greatest challenges that you’ve encountered in your specialisation of criminal law, over the past 30 years? A. I think it’s to do with the gender balance of work. It’s really, really difficult for a woman to build an independent practice, as opposed to relying on the clerks. When you’re a woman, particularly in criminal law, although it’s probably the same in every section of the law, and you’re a woman with a young family at home, you want to do your work and you want to go home to your children. But you’re expected to go out, into the city and entertain with the clerks, the solicitors and the clients, to bring in the work. But it’s very difficult for a woman to tread that path. I made sure that I just concentrated on a few solicitors who were very loyal to me. What’s really interesting is in the years before I got silk, my biggest work was, at that time, being sent to me by a very successful female solicitor. And she understood. I didn’t have to run around impressing her, but because I was pigeon-holed with her, I was not exposed by the clerks to other aspects of work.

IN CONVERSATION WITH

Q. How would you say your experience advocating in criminal cases differed as a junior barrister versus as leading counsel? A. Very different. As a junior barrister, you’re pretty much on your own with the solicitors and the client. But as a Silk, you’re heading a team. When you’re a junior barrister, you’ve got the Defendant, you’ve got the solicitor, who’s usually a junior solicitor, and then there’s you. So really, yes you’re in charge and everyone’s looking to you to be instructed as to what to do, but you are very much negotiating the way and telling everybody what to do with the case. When you’re a Silk, you’ve got a junior below you, you’ve got a senior member of the firm of solicitors with you, because you’re a Silk. And you’ve often got another run-around as far as the solicitors are concerned. And then you’ve got the client. You’ve got a team of about four or five people that you’re in charge of. So you’re able to delegate a lot more. It’s very good to have another mind working with you on a case from the Bar, particularly in relation to criminal cases, as people are bringing different skills to the table. But you’re ultimately in charge and the Defendant always looks at you. Q. What’s your connection to Belize and having been called to the Belize Bar in May 2021, what would you say are the main similarities and differences between the Belize and UK Bar? A. The Caribbean jurisdiction is based on the English Common Law system, so it’s exactly the same. It’s very easy to transition from the UK into places like Belize and the British Virgin Islands, where of course I was Director of Public Prosecutions (DPP). It’s the same, there’re no differences really. Unlike the UK, you don’t know the judges. In the Belize courts, I do not know what the judges are like. But again, my junior is from Belize, so he can tell me his perspective. I can say, “how is this judge likely to react to this application?” It’s been particularly difficult, of course, because it was during the pandemic. It’s bad enough, during the

THE PUPIL

pandemic, having to be in court with a mask on. But when you are in court with a mask on virtually, it’s almost impossible. Q. How has technology and the growth of online presence affected the way trials operate? A. I did a hearing in July in the Magistrates’ Court in Belize, and I was making submissions on the law as to why the case should not go to the higher court for trial, on the law. First of all, you have the time difference (they’re seven hours behind us) so even though the Magistrate very sweetly sat at nine o’clock, it started at four, our time, and went on until midnight. As it was over a screen, I didn’t have to have a mask on. But the Magistrate and all the other counsel in court had masks on. The Magistrate was quite softly spoken and there was no amplification. It was really, really difficult and half the time I couldn’t hear what he was saying. I could only say so many times to my junior in court, “could you ask the Magistrate to speak up please?”. What I ended up having to do was send emails to my junior through the computer. It was really, really difficult. Q. What is the importance of the Witness Anonymity Act? A. I think a huge distinction needs to be made between criminal cases and other cases. Criminal cases depend so much on interaction with the witness. The proof of that is in the anonymity provisions. Witness anonymity is based on the fact that in history, in criminal cases, the Defendant is always entitled to know the identity of his accuser. For example, a woman comes along and says that she has witnessed the Defendant stab, and effectively murder the victim. But she is so frightened, she does not wish her identity to be revealed to the Defendant, because, she says, of the community that she lives within. There’s a world of difference in relation to the way the court and the jury in particular would assess her evidence if, a) on the one hand she was a stranger or b) she was a spurned girlfriend. If she was a stranger, and has no axe to grind, you would probably be more willing

IN CONVERSATION WITH

to accept her evidence. If, however, she was a spurned girlfriend, you would start thinking about why she has identified this man as the man who stabbed the woman. But if there’s anonymity, you would never know the difference. You would never know because you wouldn’t be allowed to know her identity. Hence, the provisions of the Witness Anonymity Act. The provisions of the act have made various layers of anonymity. One thing the act allows is if a witness is giving the evidence as Miss A, either behind a screen, or remotely, there are three sets of people who are entitled to see her: the jury, the judge and the counsel. The Defendant isn’t. But those three sets of people are entitled to see her give her evidence because it matters as much as the way the witness gives their evidence as to what they say. Q. You were working in your first year as DPP during the time that Hurricane Irma and Maria devastated the British Virgin Islands and you wrote in an article of your time in Belize that: ‘in just a few hours our court houses were destroyed, throwing open the doors of the prison, releasing desperate convicted child sexual offenders as well as murderers’ (“Counsel Magazine”). What were the immediate and long-term impacts of the Hurricane on the criminal justice system? A. Immediate was the criminal justice system was completely destroyed and devastated. We had no courts. What do you do when you have no courts? We would have courts in the police station and hearings in the police station. It was a very small area. I had a murder case, where I went into prosecute it for the first hearing and the Defendant is sitting a meter away from the victim’s family. The Defendant if he wanted to run past us and assault us, could have done so very easily. They did have police officers there. We had a temporary Magistrates’ court built. The first thing they had to do, as the prison was breached, was catch the convicted defendants and send them to a secure facility in St Lucia. The whole question came up about the prisoners’ human rights, as they were not able to see their families. At one point, there was a

THE PUPIL

question as to whether they were going to send unconvicted prisoners. I advised the governor, absolutely not, you cannot send unconvicted prisoners. The aftermath of a hurricane on a territory like the British Virgin Islands if horrendous. You have no electricity. You have generators. You have no roof over your head. You have no internet connection. You have no communication. You have nothing really. Water, food, the whole works is in short supply. You can’t flick a switch and turn on the electric lights or the air conditioning –— it’s a really difficult way to live. Maria hit on September 19th but I was in the UK and I was asked to go back on October 20th. I flew in on the 20th and they had nowhere to put me. I was put in a hotel room where there was nobody else in my hotel. All my belongings had been lost in the hurricane. They kept moving me. They couldn’t secure accommodation for me. I had no security guards as the police were needed to do other things. In the end they housed me in the middle of the east end of the island amongst the families of those I’d had convicted of murder. It was a really difficult time. As far as the long term, you couldn’t have Crown Court trials, because you had no juries. They got the Commercial Courts up and running really fast. They didn’t really consider the Criminal Courts a priority, which was wrong. I kept trying to tell them that, if the security of the BVI was questionable, people were not going to come to BVI Commercial Courts. The security of the whole island was at risk here. It was a really, really difficult time. It’s just about getting back to normal now. But just when it was trying to get back to normal, then the pandemic hit. Q. What was your experience like working as Foreign Legal Adviser to His Holiness 17th Karmapa in India from 2015 to 2016, and what did your role as Foreign Legal Adviser entail? A. It was just fascinating. You have to be careful as the Indian Bar does not allow English barristers to work in the Indian courts. So it was an advisory capacity. It was a case where the 17th Karmapa was implicated in a money laundering investigation. The advice had been received in India and some of

IN CONVERSATION WITH

his followers wanted independent input from a UK QC. It was just the most amazing experience. They wanted me to go out there, meet him, read all the papers and write an advice. I had to do it in a very careful way because I’m not allowed to work in India. So I did. I flew to Delhi. I got all the papers and read them. Then I was flown up to Dharamshala, which is the seat of the Dali Lama and the Karmapa. I had a monk assigned to me, who was wonderful. He was absolutely lovely. He looked after me. I was put up in the most amazing place. It was just really, really special. It’s the best thing that I’ve ever done in my life, and I just loved it. That was before I went to the BVI and it makes you start thinking laterally about the criminal work that you do. At the moment I’m being consulted in relation to war crimes and UN sanctions. That’s not to do with walking into a Criminal Court. It’s to do with advising a government who feels as though they might have UN sanctions against them because the UN feel as though they have not investigated war crimes. It’s sort of another stage of your career. I find that I’m at a completely different stage of my career now. I suppose the real division came in 2016, when I held the role as the adviser to the Karmapa. After that I went out and did the BVI and once you’re in the BVI, and you’re the DPP, you’re advising on national security, you’re advising in cabinet, you’re advising the governor, who then comes back to the UK foreign office and reports the advice of the DPP. Since 2013/2014, I’ve been advising the foreign office. I quite enjoy that advisory capacity. Q. In your role as Foreign Legal Adviser to the 17th Karmapa, what is your perspective on the interplay of law and religion in this context? A. The allegations were made as a result of religion. The person who had made the allegations against the 17th Karmapa and the Dali Lama, was somebody who was a pretender to the 17th Karmapa. Somebody who basically believes that he is the 17th Karmapa, not the person who is and has been

THE PUPIL

selected by the Dali Lama. I could not believe the case and what they had concocted when I read it. If you are the Dali Lama or Karmapa, same for the Pope, and you have religious followers globally, they are going to send you money because they want to, in every currency of the world. That’s not money laundering. It was effectively something as basic as that. It was all concocted around religion. The reason for the case was religion. Q. Is there any memory, anecdote, experience or even piece of advice that you would like to share with readers and aspiring barristers? A. All I would say is that having said I never wanted to be a barrister, my father obviously knew better than I did the type of career, independence and security he wanted for his daughter. As a career for a woman, it’s a fabulous career. I’ve never regretted a day of it. Yes, obviously when the children were growing up, it has been difficult to balance it. Being

IN CONVERSATION WITH

a criminal barrister for me has been a magical journey. Particularly, as I just said, as it’s developed. I’ve always been able to expand it in the way that I wanted it to go. No way am I going back into the Criminal Court, having been the DPP of the BVI. Having been the DPP, you can’t then go back into the Bar. I’m not ready to hang my hat up and do nothing, as I’ve always done something. But I want to be able to pick and choose what I do. So now it’s just sort of evolved. People who have cases in the Caribbean are asking me to work in the Caribbean. So now I’m thinking I’m very happy to go out to the Caribbean on the odd case, and go out to Belize, Bermuda, and the Cayman Islands. But I will pick and choose the cases I want to do. What’s really interesting is when I got on the plane to go to the BVI, I knew not a soul. When you’re doing that at my age, 16 years in silk, I thought that now is the time to make a leap of faith and enjoy it and see what comes of it.

THE PUPIL

IN CONVERSATION WITH

Richard Humphreys QC A perspective on the intricacies of planning and environmental law Q. What were your main academic and extracurricular interests growing up and was there a particular moment or experience in your life that caused you to decide to become a barrister? A. History and languages, singing and acting. I wanted to be a barrister from the age of 9. I remember watching a series on television called “Crown Court”: over 3 days, a real jury would hear a fictitious criminal case, with witnesses being called, and then return a verdict. (Looking back, many well-known actors today cut their teeth in this series.) I was really struck by the roles played by the barristers and recall thinking how marvellous it must be to stand up for people, whether the Defendant or the victim. Q. Prior to being called to the Bar in 1986, did you have any preconceptions of the UK Bar and if so, how did your entrance into the Bar align or contrast with these ideas? I had a fairly good understanding of the Bar by the time I was called. I had spent time in holidays observing trials in a nearby Crown Court, sitting with a magistrate for a week, sitting with a county court judge for another week, watching hearings in the Royal Courts of Justice (I vividly recall watching Lord Denning in the Court of Appeal), working in 3 firms of solicitors and undertaking 3 mini-pupillages. Nothing, however, can fully prepare one for the work environment of course. Q. How successful would you say the UK Bar has been in achieving gender balance and diversity to date and what would you say are the most important discussion points and actions that need be taken to ensure gender balance and diversity in the UK Bar?

A. The gender balance has greatly improved, at any rate in the early years of practice, as has diversity. The television series “Rumpole of the Bailey” (1978-1992) gives a good impression of some of the prevailing attitudes 35 years ago. There is now paternity and maternity leave and, for example, menopause awareness. There is also positive discrimination for High Court judicial appointments. Q. How would you characterise the Inner Temple in relation to the other Inns of Court and what in particular sets the Inner Temple apart from the others? A. I think that all the Inns have similar qualities. Inner and Lincoln’s have larger scholarship funds but, for example, Middle Temple has the most magnificent, historically significant, hall (Twelfth Night was first performed there in 1602 and Queen Elizabeth I often dined there). Do visit the four Inns – they are all within 10 minutes’ walk of each other – and look at the respective websites and see what appeals. Q. What was the impetus behind your decision to specialise in planning and environmental law and why do you think this is a particularly important specialisation in law? A. As pupil to the then ‘Treasury Junior’ (who represents the government in the most important cases), during my first 6 months I saw a wide range of government work, from official secrets (the Spycatcher trial), to contempt of court (prosecuting some tabloid editors for prejudicing fair trials), to immigration law, to EU law (Factortame), to VAT and town and country planning law. My second 6 months saw personal injury work and I was instructed on a large number of criminal and family cases of my own. An opportunity then arose for a tenancy at a set specialising in planning and local

THE PUPIL

government law so I took it. Opportunities were very hard to come by then as now. All areas of law are important. Planning is always a political ‘hot potato’. Q. When you joined the Bar in 1986 as a junior barrister, what would you say was the most controversial issue within planning and environmental law? A. Possibly the Royal Opera House, Covent Garden case: in order to fund major improvements to the ROH, a substantial amount of policy-non-compliant office development was permitted. The Court of Appeal held that financial considerations which fairly and reasonably related to the proposed development were capable of being material considerations which could be taken into account when determining a planning application. Q. What would you say is the most controversial issue within planning and environmental law today? A. As regards environmental law, we await to see whether the Office for Environmental Protection (established by the Environment Act 2021) will be an effective replacement for the European Commission’s supervision. As regards planning, current planning policy for housing assumes the capacity (in terms of available workforce) for the construction industry (pre and post Brexit) to deliver the housing targets set by government; and states that, generally, if a 5 year supply of deliverable housing cannot be demonstrated to exist in a council area, there is a presumption in favour of granting planning permission unless the harms “significantly and demonstrably” outweigh the benefits (the so-called “tilted balance”). The evidence suggests, however, that the capacity doesn’t exist; so the targets are undeliverable and thousands of houses are being granted permission on the basis of the tilted balance. “Sustainable development”, as redefined by the government, does not therefore mean “meeting our own needs without compromising the ability of

IN CONVERSATION WITH

future generations to meet their own needs” (the well-known Bruntland Commission definition, 1987). Q. Is there any international jurisdiction in which you find laws pertaining to environmental and planning particularly intriguing or maybe in urgent need of revision, and if so, why this region? A. In Jersey, knowingly or recklessly to make a false or misleading statement when applying for planning permission is a criminal offence punishable by imprisonment and a fine, with consequential powers to revoke or modify the permission and, if appropriate, require demolition etc. Given the huge increase in value of land conferred by a planning permission (agricultural land may have a value of £10,000-15,000 per acre; with the benefit of a planning permission a value, depending on location in the country, of £350,000 £1.5 million plus per acre), the introduction of such measures in the United Kingdom would in my view provide a healthy deterrent to very obvious temptation. Q. In what ways has environmental law as a practice been affected by an increasing global focus on the climate crisis, including from governments, NGOs and individuals, all striving to mitigate the negative effects of human activity on the environment? A. This has given rise to a considerable amount of litigation, especially that brought by ClientEarth (an environmental law charity) regarding the government’s feet-dragging over tackling airpollution. The common law has long provided remedies via nuisance actions but Parliament has gradually become more active, with, for example, the Environment Protection Act 1990 and, more recently, the Climate Change Act 2008. It was EU Directives which led to the Environmental Assessment of Plans and Programmes Regulations, the Environmental Impact Assessment Regulations and the Conservation of Habitats and Species Regulations.

THE PUPIL

Q. To what extent would you say that recent technological developments and the acceleration of ecommerce, in tandem with a greater global online presence, have affected certain areas of planning law, such as industrial, commercial and retail? A. Online retail is now a significant part of retail sales but it’s entirely a matter for government whether it wishes to permit this to continue at the expense of the High Street. The government’s decision automatically (by statutory instrument) to allow changes of use from shops to offices, light industrial use and homes appears to be detrimental to the latter. Q. Having taken silk in 2006, how has your role both in and out of court changed following the transition from junior barrister to leading counsel?

IN CONVERSATION WITH

A. The work is more complex and can have very considerable financial implications. The best advice may be to avoid litigation and/or to settle. Q. Are there any particular techniques of advocacy that you employ in court? If so, how have these skills developed or changed as you’ve progressed throughout your career? A. Preparation, preparation, preparation! Q. With vast experience and knowledge and having achieved much success during your time at the Bar, what are your career aspirations from this point on? Is there anything in particular that you’d still like to accomplish or fulfil? A. I never look very far ahead! I just enjoy helping clients.

THE PUPIL

IN CONVERSATION WITH

Leila Amineddoleh New York, Italy, Greece and the construction of cultural heritage law Q. Having initially specialised in economics at undergraduate level, what was it that inspired you to pursue the study of law? A. I’ve always loved art and music. I’m a pianist and I minored in music at NYU. I’ve always loved fine arts but didn’t necessarily want to major in that because I was scared that there weren’t jobs in that field. As someone who teaches an undergrad class on art crime and intro to art law, a common question is, “what do I do after school?” For me, I was a little worried about pursuing that avenue, so I decided to do something practical, which in hindsight I regret a little, as I think it’s nicer to follow your passion. I ended up doing that later in life. I did my undergrad in economics and I really enjoyed it because I loved math. I intended to go to law school to work protecting artists. In my mind I wanted to work with musicians, in copyright law. I loved writing and I had interned for a year at a publishing house. When I got to law school, I started learning about other areas of the law, like art law. I was excited by the prospect of being able to combine the law and this desire to protect creative people and protect objects. I now work with musicians, fine artists, photographers and magicians. The other half of my work involves the objects themselves. So working on authentication, theft and cultural heritage. Since law school, I’ve wanted to work in cultural heritage, and everyone told me it was very difficult. But that’s what I do now, for example working for the Italian foreign government. Q. How would you define art law, in relation to cultural heritage law and intellectual property law and how would you respond to those who dispute its independence, as a separate field of study and practice? A. When I say ‘art law’, I think of it as a really broad practice area because it includes so many different

subtopics and I think a lot of us have different subspecialties. Art law includes intellectual property, that’s to do with artists’ rights and defining what rights and licenses are available. There are also tax issues and also issues with trusts and estates and, as these aren’t my specialties, I usually send them elsewhere. There are lawyers who specialise in advising artists on the passing of their property. There’s a whole area of cultural heritage, which is one of my specialties. There’s also an area of specialty dealing with Native American cultural heritage issues and it’s called NAGPRA (Native American Graves Protection and Repatriation Act). After law school and working for a number of years at a law firm doing intellectual property (IP) law, I really wanted to work in that area and that’s how I grew my expertise, on my own, after school. It’s an area that’s also growing a lot. We’re hearing a lot more about this area, in terms of restitution and the responsibilities of museums and museum ethics. This is a conversation that’s getting a lot more attention today, than it received say, a decade ago. Q. Are there any distinctive memories that you have from your time serving as a cultural heritage law expert for the New York District Attorney’s Office Antiquities Trafficking Unit? A. I loved serving as an expert for them. I was never employed by them, which I had to clarify. All of the matters are so interesting and I think the work done by that unit is incredible. I wanted to work with Italian cultural heritage. So the first matter I got to work on involving objects from Italy was really exciting for me. I got to work on something involving mummy parts and that’s really cool. Maybe the most interesting matter with the DA was the seizure of the Persian guard relief, which actually involved a British dealer selling work at

THE PUPIL

TEFAF in New York. I received a call from an academic, who explained that there was a problem with a work that had been looted and was now in New York. She was looking for advice and how to inform authorities. I told her I could get in touch with the team at the DA. So we reported the tip and the DA found that there was merit in the academic’s claim. They found evidence that it was looted and there are archival images of the work. There’s proof that the work went missing from the site of excavation and we have the evidence showing it went missing and is now here in New York. I got to report that to the DA. The DA had asked me to serve as an expert on Iran’s cultural heritage law. I’m half Iranian so I was able to also serve, creating this conversation between the DA, the US authorities and the foreign authorities. I helped to work through that relationship so that there could be a repatriation, because there aren’t diplomatic channels open with the US and Iran. What has happened with some other Iranian objects that were seized is that they just stayed in US warehouses for a period of time because there is no way to return the property. That was probably my favourite of the cases I got to work on with the DA. Q. Have you had any particularly memorable experiences travelling to foreign jurisdictions whilst working on art, cultural heritage and intellectual property law cases? A. The only travel I’ve really done for that is for pleasure. In order to be better informed and to meet with colleagues. This summer I met with a client from the Ministry of Culture in Italy. But the work I do all takes place in the US. A foreign government would hire me to serve as counsel in the US, because you need to be a member of the Bar within the US to go into court. As far as court appearances, I’m hired because I’m a US lawyer, based in New York. Q. Have you had to draw on your knowledge of Italian and Spanish whilst practising law and would you say languages are important skills to have built and maintained throughout your career as a lawyer?

IN CONVERSATION WITH

A. Definitely, language is such a huge help. Definitely with Italian: being able to read through the cultural heritage law in Italian and being able to communicate better with clients — it’s really valuable. I haven’t really had to use Spanish, as I haven’t worked for the Spanish government and haven’t had any Spanish clients. Ultimately, I’ve worked with international clients where I can’t speak their language. I’d say the legal skills are more important, but the language skills can really help you stand apart and pitch yourself and relate to a client. There needs to be some human connection between lawyers and their clients. That’s one of the things I love about art law; if you’re dealing with artists and their rights, that’s so personal and so emotional and it’s so important to these people, to protect their legacy and their rights and their reputation. So all the work in IP is very personal. In terms of the art and heritage, I think its emotional in a different way. For heritage, there’s a significance. It’s not necessarily personal as we’re thinking of ownership in a more abstract way, such as national ownership and heritage of a peoples. There’s definitely an emotional aspect. There’s an emotional connection that people have to art. Q. How would you say your experience of providing legal representation to institutions differs from providing legal representation directly to artists, in terms of how they operate and your relationship between them? A. Legally it’s the same. But how you approach the situation is different. More of a personal approach versus an institution that may have many people you’re interfacing with. It’s generally not as personal. In some ways its easier, dealing with an institution and dealing with things in a very straightforward manner. One of the nice things with working with individuals is that you can really feel this gratitude, as it’s so important to them. So it’s nice that I have a balance.

THE PUPIL

IN CONVERSATION WITH

Q. What has been one of the most interesting cases for you personally that you’ve worked on and was there a main takeaway from it?

Q. What have been some highlights in your position as a litigator and what skills do you think a litigator needs in order to be successful?

A. I would say the most important case I’ve worked on was when we represented the Greek Ministry of Culture in a case that was filed by Sotheby’s and its consignor. It was a landmark case. The case has now appeared in textbooks as it was the first of its kind. What happened is that Greece had written to the auction house saying you’re selling something that we have reason to believe was looted and belongs to us. Sotheby’s ultimately ended up suing Greece for sending that letter. It’s an international law issue of sovereign immunity. Sotheby’s said that by writing this letter to us, you wave your sovereign immunity. There’s an act in the US saying that if you fall under one of these exceptions, even though you’re a foreign government, you can be brought into a US court to defend yourself. One of the exceptions is a commercial activity exception. If your act was commercial in nature, then you can be sued in the US court. We said that this is a letter and there’s nothing commercial about it. Greece never treated this object commercially, it’s not a commercial object and Greece has no interest in selling this. Sotheby’s said well by writing this letter, you intervened in commerce and you’re acting like a private individual in intervening in commerce. The lower court agreed with Sotheby’s and said this is a question of first impression, as it hadn’t been answered before. Actually a foreign government had never been sued for anything like this before. The case went forward and we appealed it and the Appeals Court reversed and ruled in favour of us, saying that Greece wrote this letter pursuant to its cultural heritage law and that is sovereign. That’s what we argued in lower court: that asserting ownership by patrimony law can only be done by a foreign government, not a private individual. So we won in the Second Circuit. That Greece case was so exciting as we had to argue something new, for which there was no case law and we ended up winning. It was an amazing opportunity.

A. Most cases never go to trial. I think the first skill is to be able to avoid litigation. It’s costly and timeconsuming and there’s a level of uncertainty in how the court will decide a case. The first step is to be able to avoid litigation and speak to the lawyer on the other side and say let’s find another solution. That involves being a good listener and hearing what’s important to the other side and finding a middle ground based on what’s important to your side. Good contracts and well-drafted agreements are so important, to avoid problems down the line. It’s important to negotiate before things reach that stage where a complaint is filed. Writing persuasively is also so essential. Being exhaustive in your research, including reading all the relevant cases is very important. Q. What would you say are the key skills of advocacy to draw on as leading counsel in litigation disputes? A. I think you have to be a good listener. Judges ask questions that you really need to listen to. Of course, you have your own agenda. But at the same time, you have to listen to what they’re asking you. You have to be respectful. A lot of litigation includes listening: listening to the judges, listening to your client, listening to opposing counsel, in order to understand what they want to know and how you can frame your argument in the context of their question. Q. Having been admitted to the New York Bar in 2008 and with over ten years of experience in litigation and transactional law, what is your perspective on the achievement of gender equality within the New York Bar? A. I work in an area that’s unique in the law, where a lot of art lawyers are female. I haven’t; really experienced major issues with gender discrimination. A lot of my colleagues are women and some of the best lawyers in this area are

THE PUPIL

women. Even if you look at museums and auction houses — the General Counsel at the Met is a woman. Most of the people I’ve worked with have been women. So, I haven’t had any issues with gender inequality. It hasn’t been a major struggle in my career. Q. You’ve written about technology becoming an increasingly more useful resource for tracking stolen artefacts (“US News”, 27th May 2019), but also mentioned how technology can be used to facilitate illicit buying and selling of art — what would you say are the main points of caution for both lawyers and the public to bear in mind moving forward, with regards to how technological developments can negatively affect the art market? A. I think you have to use your due diligence and common sense anytime you’re acquiring objects. If you’re buying something online, you have to confirm it’s a real gallery. Do they have a real address? What are the red flags coming from a conflict zone? Was it placed on the market recently? Does it have a good provenance? With everything being online, you have to dig a little deeper and use a high level of scrutiny and due diligence. Q. What would you say is the global importance and ramifications of art law, cultural heritage and intellectual property and is it necessary to promote public engagement with these fields? A. It affects everyone. In terms of cultural heritage, it’s really property owned by everyone. It’s our shared heritage and I think it’s important to protect that. It’s important for future generations and it’s a story of humanity. I think cultural heritage is really important not even solely in terms of the legal aspects. It’s so important for people to spend time in museums or hear from someone who’s knowledgeable and can explain the significance of what these pieces tell us about our history, about changes and world heritage. Cultural heritage is so significant. It’s really the same with art; there are important pieces that really inspire us all and say a lot about the world and changes in the world. So it

IN CONVERSATION WITH

needs to be protected and it needs to be secured, as it’s part of human history. Regarding intellectual property, it’s only fair that people should be able to exercise control over what they’ve created. Intellectual property is different from physical property. The US law protects it and the US constitution protects copyright. After the invention of the printing press, there were licences given to certain printers to publish information and to disseminate that. It was kind of a way for the church and state to exercise control over information that was being distributed. But we think of intellectual property today very differently: that the creator has the opportunity to exercise control. The creator should be able to exploit the value of their creation. That incentivises people to create, to invent and to write. This is so important. When people see these discussions online about for example, the Parthenon marbles, it interests them. I think as art and cultural heritage keep developing, hopefully more of the public will understand these issues. Q. Is there any particular personal or career experience or anecdote that hasn’t been mentioned, or special piece of advice, that you’d like to share with readers of The Pupil and aspiring lawyers? A. My family has been so supportive and that’s been huge for me. At times when I was intimidated and scared to take on a case or a client, my family has been so supportive, so that was really important to me and my career. I’ve also had a number of amazing mentors. People who also were available in terms of giving advice. As a lawyer, you still need to bounce ideas off of others and I’ve had so many wonderful friends and colleagues who are happy to chat. We all do this for one another. Really the support of friends and colleagues has been invaluable to me. Having started studying something that I thought was practical, in the end I shifted my attitude and decided I wanted to pursue what I was passionate about. Although sometimes it doesn’t work out, I think if you’re really passionate about something,

THE PUPIL

you can find alternative channels. It’s important to keep your mind open about other ways to pursue your passion. I tell my students this because I teach law students and undergrads. I tell them that you can pursue and area that you love, even though it might not be the way that you envisioned. It worked

IN CONVERSATION WITH

out for me in a way that I’m so happy and proud about, but it definitely differed from my original plan. You have to be open-minded about how you pursue your passion and be receptive to other ideas. If you’re passionate, people will recognise that and they will help you and you’ll find your way.

THE PUPIL

IN CONVERSATION WITH

The Rt. Hon. Sir Keith Lindblom From pupillage to Senior President of Tribunals Q. How did your formative years as a barrister compare to your expectations of what a career at the Bar would be like and were there any unexpected turns taken in your journey to being called to the Bar in 1980? A. When I was 16 years old I was sure I wanted to be a barrister, despite there being no lawyers in my family, and despite my knowing very little about life at the Bar or the challenges facing anyone who wanted to get started in the profession. I liked the idea of the intellectual challenges the work would bring, and the independence of a profession of selfemployed people. Like many of my contemporaries, I did not take a degree in Law – or “Jurisprudence”; I read Modern History at St John’s College, Oxford, and went on to the first part of my professional training at the City University and then the Inns of Court School of Law. I was called to the Bar at Gray’s Inn in July 1980. The profession was very different then. Pupil barristers no longer had to pay for their pupillages, but nor were they paid by the chambers where they undertook that training. In the second six months of pupillage it was possible to accept briefs to appear in court, and to receive small sums for “devilling” written work for members of chambers. I did my first six months pupillage in a “Common law” set of chambers, my second in a set specializing mainly in Planning law, the field in which I wanted to practise. Planning interested me because it was an area of the law that seemed to be more about making things right in the future than undoing things that had gone wrong in the past.

I gained a tenancy – a permanent place in chambers – at the end of 1981, and then spent three or four years doing the full range of work available to the most junior barristers – including Criminal, Landlord and Tenant and Family cases – but at the same time gradually building up a practice in Planning law. In 1983 I was instructed as junior counsel for one of the parties at the public inquiry into the proposal for the Sizewell B nuclear reactor, a case that went on for about three years. After that, my practice became more and more specialized in Planning. Q. Have there been any career challenges that you’ve faced in your more senior roles at the Bar, since being appointed Queen’s Counsel in 1996? A. Each stage of a career at the Bar has its own challenges, which are probably no less daunting today than when I was in practice. The first, of course, is in finding a pupillage, which is still difficult for many people who have gained all the academic and professional qualifications required; then in getting a tenancy, which is often not easy, even after a paid pupillage; then, after a lengthy period as a junior, taking “Silk” – becoming Queen’s Counsel – which brings more complex and demanding cases. After I took Silk in 1996, I found myself concentrating more and more on major infrastructure cases – roads, runways and reservoirs, often at long-running public inquiries, working in teams of people in various professions. But I also sat as a Recorder – a fee-paid judge, sitting in the Crown Court and in the County Court, and later as a deputy High Court judge. So, by the time I became a salaried judge, in 2010, I had had some experience of the Bench. The skills and resilience one needs as a professional advocate are acquired through experience,

THE PUPIL

sometimes through learning from mistakes. Advocacy is an art that largely cannot be taught; it is improved through constant honing. Moving from Bar to Bench, which I did after 30 years in practice, is perhaps the greatest challenge. These are two quite different occupations. Preparing, advising on, and presenting cases is an endeavour of persuasion – of the court, for a client. That is the role of the barrister. The judge’s role has nothing to do with persuasion. Judges have no clients; they are not in the business of persuasion. They swear an oath to do justice for all who come before them, “without fear or favour, affection or ill will”. This is, every day, what judges are striving to do. As I found when I became a judge, it is a rewarding as well as a highly demanding job. In 2020, I became Senior President of Tribunals, with responsibility for leading a large number of salaried and fee-paid judges and non-legal members in the tribunals, across a wide range of jurisdictions – immigration and asylum, employment, property, tax, benefits of various kinds, mental health, special educational needs and others. I had previously held other leadership roles in the judiciary: President of the Lands Chamber of the Upper Tribunal, lead judge of the Planning Court, President of the Administrative Appeals Chamber of the Upper Tribunal and Vice-President of Tribunals. Succeeding in such a role requires the ability to lead judicial colleagues, manage the jurisdictions in which they work, and promote their welfare – all of which is quite different from the day-to-day work of a judge sitting in a court or tribunal. To do all this has been especially testing throughout the last 20 months, when we have had to contend with all the new and additional pressures imposed by the Covid-19 pandemic. Q. How do these experiences relate to the general challenges faced by those aspiring to be admitted to the Bar, and are there any ways in which this process of admission can be facilitated? A. Much of what I have already said is relevant to this question too. Though the Bar as it is in 2021 has changed a great deal in the 40 years since I began

IN CONVERSATION WITH

my career as a barrister, the main challenges facing those who come into the profession today are not dissimilar: the need to secure a pupillage and then a tenancy; the difficulties involved in funding a lengthy period of training – mitigated somewhat by paid pupillages and scholarships available from the four Inns of Court; for many, the relatively low earnings in the early years of practice; and the obstacles to diversity and inclusion that still deter many young people from entering the profession – and which the Bar Council is determined to break down. Q. How successful would you say the UK Bar has been to date in achieving diversity and inclusion and what, in your opinion, are the necessary steps towards achieving diversity in the UK Bar, particularly in relation to the more senior levels? A. Much progress has been made by the Bar Council in its efforts to promote greater gender and racial diversity at the Bar. But there is still, of course, a huge amount to be done. Diversity and inclusion have many facets, not merely gender and ethnicity. It is true that the Bar is a more diverse and inclusive profession than it was 20 years ago, and much more so than it was when I started in practice in 1981. This, however, is not to say that the profession yet comes close to reflecting the composition of the society to which it belongs, or that it is always seen as being a profession open to all, regardless of background and means. The Bar Council has long recognised this, and is active with several initiatives aimed at increasing diversity and strengthening inclusivity within the profession. The judiciary is also making efforts to improve diversity and inclusion within its own ranks, and in the process for attracting new judges. The scale of those efforts is greater now than ever before. New appointments now split roughly equally between men and women, which will eventually lead to gender balance in the judiciary as a whole. Increasing the numbers of black judges, as well as Asian and other ethnic minority judges, is imperative if we are to create a judiciary whose composition more closely mirrors the society we serve, and to increase public confidence in our legal

THE PUPIL

system. Much of the work is being carried forward by the Judicial Diversity Forum, and also by the Tribunals Diversity and Inclusion Taskforce, which I set up when I became Senior President of Tribunals. It is being done in co-operation with the Judicial Appointments Commission as the independent body responsible for selecting judges, and with the Ministry of Justice. And it has the support not only of the most senior judges but of the entire judiciary. Many things can be done to achieve the progress we need, including outreach to schools and universities to increase awareness of the work we do as judges, the attractions of a career in the law, and the opportunities in the law that are open to young people, no matter what their social and educational background may be. Q. What would you say are the merits of the structure of the UK Courts, both independently and in comparison to foreign jurisdictions? A. Because the judiciary is largely drawn from the legal professions, it provides opportunities for second careers, and benefits from the experience and expertise developed by people whose first career has been in practice as a barrister or solicitor. In my view, what matters no less than the structure of our courts and tribunals is the confidence felt by the public in the impartiality of judges, and, in particular, the fact that individual citizens and organisations know they have recourse to a fair and open resolution of disputes, including disputes with the state. The courts and tribunals in the United Kingdom are, rightly in my view, highly regarded by judges elsewhere in the world, who revere the respect accorded to the rule of law in our democracy and the independence of our judiciary.

IN CONVERSATION WITH

There is ample contact between our judges in other jurisdictions, co-ordinated by senior judiciary and officials in the Judicial Office. We have built strong relationships with our colleagues in many other countries. I am involved in the work of the forum of European judges specializing in environmental law, and also, for example, a current project with the Brazilian judiciary on the enforcement of the law for important natural habitats, including those of the Amazonian rainforest and those protected under legislation in the United Kingdom and continental Europe. I think these international exchanges are of great value to our own judiciary, because they show us how judicial culture and the techniques of adjudication have evolved in other jurisdictions, and there is much we can learn from that experience. They also enable us to share our own thinking and approach with colleagues in those other countries. Q. The Constitutional Reform Act 2005 was a major step that freed the judiciary from its inherent ties with the executive and the legislature – what is your perspective on fusion versus separation of powers? This is not a question I can properly answer as a judge. I can say, however, that the independence of the judiciary in this country has developed over hundreds of years, that it is enduring, and that it is vital to the health of our democracy. Judicial independence requires judges not only to be independent of all others but also individually independent of each other. This is fundamental. And so too, of course, is the independence of barristers – equally able to put forward either side of the case in the interests of their client, holding to the highest professional standards – which, as I have said, drew me to the Bar when I began.