THE LORD CHANCELLOR

A lively debate is taking place over the appointment of successive Lord Chancellors and the need, or wisdom, of having an incumbent who is legally qualified.  This lively debate reflects the recent decision of the Prime Minister, whoever that might be at any given time, to appoint laypersons to the office, and we have been treated in equal measure to Chris Grayling, Oiky Gove, Liz Truss, or is it Lynne Truss, I can never tell them apart, and finally to the present incumbent David Lidington, otherwise known as David Who.  They come and go with monotonous regularity, poor players who strut and fret their hour upon the stage and then are heard no more.

The historians amongst you will remember Thomas à Becket, back in 1172, who as the Archbishop of Canterbury was dispatched to his Maker with those oft quoted words uttered by King Henry: “Will nobody rid me of this meddlesome priest?”  Four knights did, and precious little thanks did they get for their grisly work.

But I digress.  Before taking holy orders, Becket also served as Lord Chancellor. He had no legal qualifications, indeed in 1170 legal qualifications were as rare as hens teeth, far more important was a well turned ankle and a winning smile, both of which Becket had in abundance, so he got the job.  Surprisingly, he made quite a fist of it, introducing the Court of Chancery modestly named after him, and his shoe size became the universally accepted measurement of one foot.

He also erected  a barrier, or bar, between him and the great unwashed, to keep them at arms’ length when the court was sitting, to reduce the threat of a bunch of fives from disgruntled litigants as well as keeping the overpowering smell of body odour to manageable proportions. Again for the historians amongst you, litigants who addressed the Lord Chancellor from the bar became known as barristers, and the rest, as they say, is history.

But back to the plot.  Do we need a Lord Chancellor who is legally qualified, or who has at least some legal experience and knowledge?  The clue is in the text of section 2 of the Constitutional Reform Act 2005, my favourite bedside reading. It is as instructive for what it doesn’t say as for what it does, and make of it what you will:

“A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.

The Prime Minister may take into account any of these—

(a) experience as a Minister of the Crown;

(b) experience as a member of either House of Parliament;

(c) experience as a qualifying practitioner;

(d) experience as a teacher of law in a university;

(e) other experience that the Prime Minister considers relevant.”

In other words, anything goes, so legal qualifications are an irrelevance.  On one view, nothing has changed since Thomas à Becket, so if it works, don’t fix it.  In some cases it didn’t work, the most obvious being the unfortunate Liz or Lynne Truss, who was appointed solely on the strength of a well turned ankle and little else.  The fact that she was a woman helped, but not enough to save her from the cull.

Speaking entirely for the thousands of barristers washing around the courts, it is the perception as much as the qualifications of the incumbent, or not as the case may be, where the rule of law now inserts itself into every corner of our lives, and the Lord Chancellor needs the authority and the gravitas of his office as never before.  Downgrading the qualifications downgrades the institution at the very time when respect for the law is at its lowest.

David Osborne is the author of three humorous books on the Law.  His latest, entitled Order in Court, is now available on Amazon and in all reputable bookstores.

THROW AWAY THE KEY

Before we wave goodbye to Mick Jagger, now Sir Mick Jagger, bastion of the establishment, how the worm turns, I was struck by his reaction to a night in Brixton Prison: “It was not particularly nice. Not to be recommended.” An understatement if ever there was.

For as many years as I can remember since I was called to the Bar in 1974, we had a number of stock phrases when mitigating on behalf of our client, one of which was the clang of the prison gate and not the length of the sentence that was the ultimate  deterrent, and so it was for Mick Jagger as it is for so many who are carted off and locked away.

It is one of the phenomena of the past twenty five years that successive governments have used imprisonment as the first, not the last resort, and sentences have got longer and longer  In case Jeremy Corbyn is tempted to point the finger at the Tories, some of the most draconian laws on crime and punishment were passed in 2003 by a Labour government when Tony Blair was in power and still in short trousers.

Despite vacuous statements about reducing the prison population, it hasn’t happened and will never happen unless we have a complete rethink.  In Mick’s case, he was sentenced as a first offender to 3 months imprisonment for the possession of four amphetamine tablets.  Whilst the judge could have been working to a political agenda, it was excessive and immediately overturned on appeal.

The statistics are frightening.  The prison population is higher than ever, and 40% are re offenders. So much for the concept of rehabilitation.  Almost all prisons are dangerously overcrowded, and the crimes being committed behind bars are worse than the crimes that  brought the inmates there in the first place.  The frightening mentality of the ‘lock them up and throw away the key’ brigade is depressingly familiar in Little Britain.

Another frightening statistic is that nearly 80% of prisoners are serving a sentence of 12 months or less.  They shouldn’t be inside in the first place, but judges have lost the power to be original and inventive, and must do everything by the book.  If that’s the case, time to throw away the book.

As I drive along motorways, or more to the point, crawl along motorways, I am astonished and depressed in equal measure by the amount of litter along the roadside. So why not use those convicted of petty crime to pick it up?  Far better than sitting in a cramped cell for hours on end doing nothing.

They say that a society should be judged by the way it treats its most disadvantaged citizens.  If that is so, we have a lot to learn.

DAMNED IF YOU DO…..

Two judges are very much in the news. The first is the aptly named Judge Block, the infamous judge now long gone whose only claim to fame was sentencing Mick Jagger in 1967 to 3 months’ imprisonment for possession of 4 amphetamine tablets. That sentence of imprisonment lasted less than 24 hours before Jagger was released from Brixton Prison pending an appeal.

The second more illustrious judge is the splendidly named and recently retired Sir Martin Moore-Bick, a former Court of Appeal judge, who has accepted the poisoned chalice, possibly to his everlasting regret, and has agreed to chair the public inquiry into the Grenfell Tower fire.

Whatever else, he brings to the task over 20 years of judicial experience, and with the obvious exception of some hooligan elements of the Labour Party and self-interested lobby groups, the appointment has been generally welcomed.

That said, the press muckrakers point to a case in 2014 when he upheld the decision of Westminster Council to rehouse a single homeless mother  50 miles away in Milton Keynes.  His decision was overturned by the Supreme Court.  The report of the appeal does not relate if it was the distance that was deemed unfair, or the relocation to Milton Keynes, the land of the concrete cows.  But when questioned by some newshound about this decision, Sir Martin made an obvious yet incisive comment applicable to all judges, high or low:

“The case is one of many that I have decided over my time as a judge,” Sir Martin said. “I have been a judge for over 20 years and, particularly in the Court of Appeal, one deals with an enormous range of work, much of which involves local government or central government. One simply reaches the conclusion that you think is right, applying the law as you see it, and that is the work of a judge. You can’t pretend to get every case right, at least in the eyes of the Supreme Court.” And perish the thought, even the Supreme Court gets it wrong from time to time.

No jurisdiction this side of the pearly gates can guarantee that judges are going to get it right all the time, indeed, it’s absurd to even think so. When I first started  out at the Bar in 1974, instances of judges getting it wrong were legion.  Less so today, where judicial appointments are rigorously vetted, to ensure if possible that the right candidates get the nod.

Those of you who know and love me will know that many years ago, I was considered unsuitable for judicial office because some minion thought I was intemperate.  Me!  Intemperate! Outrageous!

In his judgment to come on the causes of the Grenfell Tower fire, I doubt if Sir Martin will be all things to all people, and my advice to him is to drop the chair like a hot brick.  I suspect he is too much of a professional to do so, in which case he deserves our thanks, or at least the thanks of decent fair minded people,  but there will be elements who will seek to undermine him and to question his every decision.

Back to Judge Block.  He got it horribly wrong when he sentenced Mick Jagger, but getting it horribly wrong doesn’t, or shouldn’t, disqualify him from judicial office.  We hope he learned from his mistake, and moved on.

Judges have an unenviable task, underpaid and overworked, and a knighthood is poor recompense.  Time to show some gratitude, and time to support them in the difficult tasks ahead without constantly carping and belittling them.

Judges are the ultimate bastion of our democracy.

 

 

 

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DIRECT PUBLIC ACCESS

This year I celebrate 13 years of public access work, now known as direct public access.  It’s been an interesting voyage into the unknown, but on balance, a rewarding experience.

Before public access came along, I enjoyed, or endured, depending on your perspective, the traditional chambers setup.  I joined Chambers as a tenant, which is a pompous way of saying that I agreed to pay my dues into the Chambers ‘pot’ in return for clerking services and a desk in a small room in the cellar.  These services were payment for work secured by the clerks from solicitors, and the clerks would negotiate my fees and any disbursements in return for a slice of the action.  And I was supposed to feel grateful.  When I left London Chambers for pastures new, I was paying 25% of my net income into the Chambers ‘pot’.

When I finally plucked up the courage to break free from the Chambers stranglehold and embrace direct public access, it was a red letter day. Overnight I became a sole practitioner and the head of my own Chambers, practising as the Chambers of David Osborne.  Very exciting.

As a direct public access barrister, I dropped criminal law, it wasn’t worth the candle, what with legal aid payments reaching rock bottom and journeyman solicitors with their cash and carry practices all but freezing out the junior Bar, and instead turned my expertise to common law. Nothing too grand, after all, as a sole practitioner, I have to ration my time if I am to do justice to my clients.  I now offer advice and representation in Tort, negligence, personal injury, landlord and tenant, contract, matrimonial and family.

The obvious advantages to me of flying solo is that I am the master of my own destiny, and I am no longer paying large sums into my Chambers ‘pot’. It is also an interesting experience of dealing direct with clients, instead as before of shielding behind a solicitor.

I am obviously not alone in offering a direct public access service.  When I first started in 2004, there were barely 200 of us.  Now there are nearer 5000, and growing by the day.  The direct public access service is becoming increasingly popular with lay clients, who can make appreciable savings on legal costs without the additional costs of instructing a solicitor.  However, I am finding it repeatedly the case that lay clients labour under the misapprehension that barristers are cheap.  That may have been the case when solicitors were calling the shots, but not any more.  It is taking time to persuade clients that a good barrister, and I can think of one in particular, brings with him enviable experience and expertise, and as somebody once said, and it could have been me, if you pay peanuts, you get monkeys!

I LOVE THEE NOT

On any view, our present divorce laws are a shambles.

Way back in 1973, the Matrimonial Causes Act came into force in part to remove conduct during the marriage as a factor to be taken into account between divorcing parties when dividing the matrimonial pot.  Within reason, this was seen as a positive move after the salacious revelations of the likes of the Duke and Duchess of Argyll, each blaming the other for an extraordinary relationship.  On any view, it was a marriage in name only.

But what the Act failed to address was the vexed problem now preoccupying many in the profession and the courts, namely ‘fault’ as the reason why the marriage had broken down irretrievably.  The legislation still requires one of the parties to blame the other for the breakdown of the marriage, and he or she, usually she, has several options to choose from: the front runner is almost always unreasonable behaviour, closely followed by adultery, and desertion in its different forms bringing up the rear.

Needless to say, the unreasonable behaviour should not be such as to tick the ‘conduct’ box, where other considerations apply.  Are you with me so far?  No, I didn’t think so.

Those in the profession arguing for ‘no fault’ divorce have highlighted the recent case of The Owens, where the wife petitioned for divorce after 40 years of marriage, stating as her ground her husband’s unreasonable behaviour.  Unusually, he contested this as groundless, the judge agreed, and refused her petition.

Family lawyers have taken up this case as yet another example of the absurdity of the present divorce laws, and argue, quite rightly in my opinion, for ‘no fault’ divorces.  Having to find a reason to divorce by blaming one party or the other is wholly artificial, and it can cause irreparable damage to the family unit where children are involved. By all means require the warring parties to attend mediation, just in case there is some hope of reconciliation, but once they are determined to end the relationship, let them do so with dignity.

I wonder if Liz Truss has an opinion to offer, but don’t hold your breath.