A Lawyer Talks

Pete Hegseth, the US defence secretary, violated security protocols and endangered troops by using a personal device to share sensitive operational details on the unclassified messaging app Signal, according to reports in the US media of a forthcoming finding.

Meanwhile, Hegseth is apparently trying to distance himself from allegations that he ordered a second military strike on a boat carrying drug smugglers in the Caribbean, unlawfully killing two survivors of an earlier attack.

For the past three months, US forces have been targeting small boats thought to be ferrying narcotics to countries in Latin America — from which they could reach the United States. More than 80 drug smugglers are said to have been killed when their vessels were hit by US missiles.

Where does this leave Hegseth and the naval commander responsible for the operation, Admiral Frank Bradley? Are they responsible for breaches of international humanitarian law? Could they be charged with murder? And what effect has the incident had on relations between the US and the UK?

These are among the questions I put yesterday to John Bellinger, former legal adviser to the US State Department during the George W Bush administration and now a senior fellow in international law at the US Council on Foreign Relations. We met to record the latest episode of A Lawyer Talks during his visit to London.

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Brexit has had an impact on everyone who holds a British passport but on none more so than those UK citizens who worked for the European Union and found themselves out of a job after the United Kingdom left the EU in 2020.

It was therefore gratifying to see Middle Temple paying tribute to two senior members who had served in the EU courts by commissioning a painting of them. As you can see, it’s a custom that the inns of court have been following for centuries. This double-portrait is by Fiona Graham-Mackay.

At a brief ceremony on Tuesday, Dame Eleanor Sharpston DCMG KC, who served as an advocate general at the Court of Justice for almost 15 years, and Ian Forrester KC, a former judge of the EU’s General Court, were introduced by Lady Justice Thirlwall, this year’s treasurer of Middle Temple.

To listen to the brief speeches and see the painting being unveiled, just click the ► symbol on the image above. To watch in full-screen — which I recommend — click on the image and then click the appropriate symbol.

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What is property? It seems a simple enough question. I own my clothes. But do I own my body, my ideas, my country? If I own my bicycle and it’s stolen, can I get it back by cutting the chain that the thief has used to secure it? My personal data may be better protected than my bicycle — but do I own it? And what about natural resources? Does anyone own them? Can private ownership bring public benefits? Are there limits on what we should own?

These are among the profound questions that Professor Dame Sarah Worthington DBE, KC (Hon), FBA addressed in her Hamlyn lectures, delivered earlier this month. I asked her for some answers yesterday when we recorded this week’s episode of A Lawyer Talks.

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The rule of law must be protected against further erosion, an all-party parliamentary committee warns us today. Failure to do so, says the House of Lords constitution committee, risks the rise of extremist political parties, ultimately creating space for dictatorship. I was one of many who gave oral evidence.

My analysis of the committee’s report— called The rule of law: holding the line against anarchy and tyranny — will appear in tomorrow’s Law Society Gazette.

For today’s episode of A Lawyer Talks, though, I interviewed the committee’s chair, Lord Strathclyde (pictured), at the House of Lords. The chimes you’ll hear in the background, I should explain, are not those of Big Ben; it’s the ubiquitous House of Lords annunciator system.

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CoCounsel is the name given by the content and technology company Thomson Reuters to its artificial intelligence assistant for legal professionals. But Pablo Arredondo, who developed its precursor with his colleague Jake Heller and then sold it to Thomson Reuters for $650m, is not so sure about the choice of name now. And while he fizzes with excitement at finding what AI can do, he is more aware than most of its limitations.

Arredondo, who’s vice-president, CoCounsel, at Thomson Reuters, has a unique perspective as a successful lawyer and an award-winning technology developer. He spoke to me from California for the latest episode of A Lawyer Talks.

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Hugh Mercer KC has sat as the UK judge at the European Court of Human Rights for little more than a month. But there will be a general election in less than four years’ time and two major political parties are seeking to have Judge Mercer kicked off the court before he completes his nine-year term of office. Does he still think applying for the post was a good career move?

That was one of the questions I asked him last week when we met to record the latest episode of A Lawyer Talks. It was no surprise to find that Mercer thinks the UK should remain signed up to the human rights convention — which celebrates its 75th anniversary tomorrow — but some of his reasons were not what I had expected.

We also discussed a claim in May by nine Council of Europe members, led by Italy and Denmark, that his court’s rulings had made it too difficult for them to deal with what they described as irregular migration. To what extent could the judges take account of the mood among European nations when deciding cases of this sort?

Being the most junior member of the 46-judge court, Mercer was naturally cautious. But as someone who was on the other side of the bench until recently, his response was particularly interesting.

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Democracy is under challenge in the west, a former president of the Supreme Court told me this week. Lord Neuberger of Abbotsbury, who was the UK’s most senior judge from 2012 to 2017, said the level of disappointment in governments — almost across the Western world — seemed to be pervasive and increasing. People were turning to populist alternatives and, he added, populism tends not to respect the rule of law.

Neuberger (pictured) gave me a wide-ranging interview ahead of a lecture he is delivering at the Old Bailey tonight to mark the launch of a series of events called Justice for All. He will be considering the rule of law and its place in a fair and functional society.

“Improving the rule of law ultimately comes down to political will and the appointment of strong ministers with real commitment and experience,” he says in his lecture. How, I wondered, could we encourage ministers to do what was right? That, he replied, was a very good question.

You can hear how Neuberger tackled it in the latest episode of A Lawyer Talks. My weekly podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.

A former diplomat who served at the British embassy in Beijing has cast doubt on what’s thought to have been a major allegation in the failed prosecution case against two men who were accused of spying for China.

Professor Kerry Brown, a leading sinologist who would have been called as a defence expert if charges against Chris Berry and Chris Cash had not been dropped, thought it was entirely implausible that Cai Qi, a member of the standing committee of the Chinese Communist Party politburo, had arranged to meet Berry at a restaurant in eastern China and then been kept waiting for 40 minutes because of traffic delays.

Brown was speaking to Ken Macdonald (pictured) and Tim Owen for an episode of their Double Jeopardy podcast released yesterday. The two KCs suggested that Brown’s expert report, disclosed to the Crown Prosecution Service shortly before the trial had been due to open, might have persuaded the director of public prosecutions to drop the case.

But, as Macdonald told me yesterday, that theory raises more questions than it answers. In an interview for A Lawyer Talks, I asked the former prosecutor about implications of Double Jeopardy’s double scoop.

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“Politically motivated attacks on the legal profession are irresponsible and dangerous,” representatives of all 250,000 lawyers in the United Kingdom said this week. These attacks, they added, “weaken public trust and confidence in the rule of law and erode the very foundations of justice that underpin fairness and democracy”.

In a joint statement, the Bar Council, the Law Society, the Law Society of Scotland, the Faculty of Advocates, the Bar of Northern Ireland and the Law Society of Northern Ireland said:

Barristers, solicitors and judges have been subjected to violence, death threats and rape threats. Some have faced threats to their family members. We have repeatedly seen law firms and offices be set upon by protestors. We are deeply disturbed by this rising tide of intimidation targeting those who serve our justice system and uphold democratic principles.

Lawyers should never suffer adverse consequences because they are identified with their clients or their clients’ causes. Lawyers are not their clients. Those who are unpopular or despised are still entitled to access the courts just as much as anyone else. Nobody is above the law, including politicians. Nobody is beneath the law’s protections.

As the statement acknowledges, it’s not just the lawyers who have come under attack in the past couple of weeks. Judges are particularly vulnerable to ill-informed criticism from those seeking political advantage.

For a unique perspective on the challenges now facing the judiciary I spoke yesterday to Professor Sir Ross Cranston, the only person alive to to have served in the legislature, the executive and the full-time senior judiciary of England and Wales.

In a wide-ranging interview for A Lawyer Talks, Cranston discussed the themes of his new book, Judging, published this month by Oxford University Press. He made the case for a new offence of traducing the judiciary, which could be committed by those who make false allegations of corruption against judges online.

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The Department for Business and Trade is currently reviewing the opt-out collective actions regime in competition law, a legal structure that enables consumers to claim compensation from corporations that are accused of abusing a dominant position in the marketplace. A recent example was the claim brought against Mastercard on behalf of up to 44 million consumers by the lawyer Walter Merricks, who discussed the outcome with me on A Lawyer Talks in May.

Launching a consultation two months ago, the government said:

We are committed to consumer protection and want to ensure that the regime has achieved, and continues to achieve, these objectives. This government is focused on economic growth; and a regime that is proportionate and focused on returns to consumers where they are due is good for growth and investment.

However, we are aware of the potential burden on business that increased exposure to litigation can present. Finding the right balance between achieving redress for consumers and limiting the burden on business is essential to ensure that businesses can operate with certainty, whilst providing a clear, cost-effective, route for consumers.

How should we calibrate the balance between corporations and consumers?

Representing the consumers’ side is the Collective Redress Lawyers Association. It wants to ensure that people harmed through anti-competitive behaviour can secure compensation through the courts.

Banging the drum for business is a group called Fair Civil Justice. It argues that collective actions in the courts should be a last resort, not the first port of call.

Most cases settle. But how much of the compensation should go to individual consumers and how much to the lawyers and the funders without whom these cases would never get off the ground?

Settling a class action originally valued at £14 billion earlier this year, Mastercard agreed to pay £200 million. But when the available balance is shared out, each consumer is expected to receive no more than £70 — and perhaps as little as £45.

On the latest episode of A Lawyer Talks, I discussed these issues with David Greene (pictured), senior partner at the law firm Edwin Coe and a co-president of the Collective Redress Lawyers Association. He offered a robust — but not unqualified — defence of the legal regime introduced 10 years ago.

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