A Lawyer Talks

It would be “shame and a mistake” for the United Kingdom to leave the European convention on human rights, the UK’s former judge at the human rights court told me last week. Tim Eicke KC, who was elected to the court in 2016 for a nine-year-term, spoke to me from Essex Court Chambers, the barristers’ set to which he returned earlier this month.

As the judge “elected in respect of Northern Ireland” — plus the rest of the UK — Eicke (pictured) said he was particularly concerned about the effect that withdrawal from the convention would have on the Belfast Good Friday agreement.

He also referred to a report this month from the Bonavero Institute of Human Rights, which examined how the human rights convention has been covered in the UK. According to the report — but contrary to the impression given by some media outlets — the human rights court had found against the UK in only 13 removal cases since 1980, just four of which concerned family life.

In a wide-ranging interview for A Lawyer Talks, we discussed the government’s plans to limit the application of article 8 of the convention with the aim of deporting more illegal migrants. I also wanted to know why Eicke had applied for the Strasbourg job in the first place and the constraints it had imposed on his return to practice. And he explained why human rights judges from across Europe took such a close interest in the UK.

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Think of an international court that can stop foreign manufacturers selling pirated copies of British inventions in the UK. It’s a court whose proceedings are largely conducted in English and where UK lawyers abound.

This is a court whose use of English legal principles has contributed to its success since it opened for business a couple of years ago. But its caselaw must do without the insights of British judges because the United Kingdom is not one of its 18 members. That leaves Britain as the missing piece in the jigsaw puzzle, according to my guest on this week’s podcast.

Rob Jackson, pictured at his office in the City of London, is a patent attorney and a partner in the intellectual property firm Dehns. The court he’s referring to is the Unified Patent Court.

Why did the UK withdraw from the agreement setting up the court? Should we try to re-join? Could they let us in? How much of an advantage would that be to British businesses?

Those are among the questions I asked Jackson in the latest episode of A Lawyer Talks. My regular podcast series is a bonus for paying subscribers to A Lawyer Writes. Non-subscribers can savour a taster by clicking the ► symbol above.

Leaving the European Convention on Human Rights would be completely contrary to the UK’s national interests, the attorney general said yesterday.

Addressing the House of Lords constitution committee, Lord Hermer KC said withdrawing from the convention — and the 46-nation Council of Europe that administers it — would be entirely counterproductive if we were seeking practical answers to irregular migration.

The UK had already signed agreements with France and Germany that would “increasingly have real practical impact in addressing small boat crossings”. But it was “inconceivable that our partners would have entered into those agreements if we were not members of the Council of Europe — if we were not signed up to the European Convention on Human Rights”.

Hermer confirmed that the government was looking at how article 8 of the convention, which protects private and family life, was being applied by courts in the UK. He suggested that domestic courts were not keeping up with developments at the human rights court in Strasbourg.

That court’s case-law was “very permissive”, he explained:

It accords states an enormous margin of appreciation as to what they can do in the asylum and immigration space. And that is something that has developed as the principle of subsidiarity. It has developed particularly over the last five or six years. And I am concerned to ensure that domestically we have kept pace with that.

Some of our colleagues on the Council of Europe have, I think, more effective, more robust mechanisms that are compliant with article 8 that we need to look at. And so we are kicking the tyres hard at every level.

We’re looking at caseworker guidance. Are they getting it right on Article 8?

We're looking at the immigration rules, the body of secondary legislation that governs this. Have they got it right?

If we need to, we will look at primary legislation to ensure that we're getting it right.

And we are also adopting a very proactive litigation strategy. I when I came in, I was disturbed to learn that often Home Office officials wouldn't attend first-tier tribunal decisions — let alone was there in place what I would consider to be a fit-for-purpose litigation strategy, identifying the points that were important to the government, appealing cases that really should be appealed.

So we’re changing all of that…

The prime minister has, though, been absolutely crystal clear that we will not be leaving the European Convention on Human Rights. Now there are a number of reasons for that. But at the heart of it is because it would be completely contrary to the national interest of this country were we to do so.

Hermer’s argument was that there was no need to seek amendments to the human rights convention. These took too long to implement. The government’s priority was how article 8 was being applied by our own courts. One of the problems was “an enormous backlog in the asylum and immigration system, which we are seeking to address”

I discussed Hermer’s comments during a wide-ranging interview yesterday with Sam Townend KC, a former Labour councillor who chaired the Bar Council last year. We also discussed Sir Keir Starmer’’s appointment of a new secretary of state and two new ministers at the Ministry of Justice. And we considered Baroness Harman’s review of bullying, harassment and sexual harassment of barristers, which Townend set up as leader of the profession last year.

Speaking to A Lawyer Talks, the former chair of the bar urged caution on replacing some jury trials by a judge and two magistrates. Townend — pictured alongside a paining of Donald Keating QC, a former head oi his chambers — also suggested ways of improving the legal profession’s regulatory structures.

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In July, a little-known body headed by the second most senior judge in England and Wales launched a public consultation on new ways of ensuring access to justice.

The Online Procedure Rules Committee — chaired by the master of the rolls, Sir Geoffrey Vos — was created by parliament three years ago to make rules for legal proceedings “to be initiated by electronic means”. But instead of trying to create a costly new digital court, the rules committee is trying out its powers to set standards for existing online dispute-resolution services.

These services are often provided by commercial or financial organisations, alongside with online advice. But they can be hard to track down if you don’t know what you’re looking for. And if they can’t solve your problem and you need to take things further, you have to go through the whole process again and start your claim from scratch.

What the legislation now allows for is the transfer of information from private dispute-resolution services to public courts and tribunals. That will be done electronically. But in order for it to work, the private pre-action services will have to talk the same language as the public courts and tribunal service.

That means setting a single standard for all private dispute-resolution services to use. At its simplest, it would require all users to fill in their first name followed by surname and “1 September” rather than “September 1”.

Under regulations made earlier this year, the rules committee can make rules for:

* civil and tribunal proceedings in relation to property; and

* family proceedings for a financial remedy

The Online Procedure Rule Committee wants to know what people think of its pre-action model and there are still a couple of weeks or so before the consultation closes.

For the latest episode of A Lawyer Talks, I’ve been discussing the reforms with Dr Natalie Byrom (pictured), honorary senior research fellow at UCL Laws. We discussed the Online Procedure Rule Committee — OPRC for short — as well as alternative dispute resolution (ADR) and online dispute resolution (ODR).

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Encouraging your future spouse to sign an English prenuptial agreement before you marry has always been a bit of a risk — as Jenny Alzena Helliwell discovered last week. Lawyers for her former husband Simon Graham Entwistle persuaded the Court of Appeal to set their pre-nup aside because she had deliberately failed to disclose nearly three-quarters of her personal wealth.

The couple’s divorce became notorious last year after Entwistle — arguing that he would now need to spend £26,000 a year on a “meal plan” — told Mr Justice Francis that he couldn’t even cook an omelette. After Entwistle had initially said that his former wife should pay £10 million to cover his financial needs, the exasperated judge awarded him £400,000 (and some culinary advice) less £75,000 costs.

Will this judgment have implications for other couples who have signed pre-nups? Do they need to get them checked for material disclosure now that this one has been declared ineffective? And will Entwistle end up with egg on his face if he keeps litigating?

In the latest episode of A Lawyer Talks I discuss these questions with Nicholas Bennett (pictured), a barrister who specialises in this area of family practice.

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Donald Trump is not the only prominent figure who may be regretting his dealings with the disgraced financier and child sex offender Jeffrey Epstein.

In October 2019, Barclays Bank sent a letter to the Financial Conduct Authority assuring the FCA that the bank’s chief executive, James Edward “Jes” Staley, “did not have a close relationship with Mr Epstein”, who had died in prison two months earlier. Staley’s “last contact with Mr Epstein was well before he joined Barclays in 2015”, the letter asserted.

A month ago, the Upper Tribunal tax and chancery chamber “found that Mr Staley knew, when he approved the letter, that its contents were factually inaccurate”. For that reason, it declined to interfere with the FCA’s decision in May 2023 banning Staley from performing any senior management role in regulated financial services. He had resigned from Barclays in October 2021 after being told of the FCA’s preliminary conclusions.

The FCA confirmed its decision last week after Staley had run out of time to appeal. He must pay a penalty of £1.1m by next week.

Should the Financial Conduct Authority punish financiers for non-financial misconduct? And what implications does this case have for other professionals — lawyers, for example, whose regulators may seek to regulate what used to be regarded as their private lives?

Those are among the questions I raised in the latest episode of A Lawyer Talks with David Hamilton, a partner at Howard Kennedy who specialises in financial services enforcement and compliance (pictured). We discussed whether the FCA had struck the right balance between protecting consumers and encouraging investment.

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Reforms to the way sexual assault cases are prosecuted and tried in the courts of England and Wales are recommended in a report today by the government’s reform advisers.

The Law Commission’s proposals are intended to provide better protection for complainants while maintaining fair trials for defendants. For the first time, complainants would be given legal advice and representation at hearings to decide whether to disclose their personal records and evidence of their sexual behaviour.

If ministers agree, reforms would be introduced to ensure that the defence could present relevant evidence without relying on rape myths and misconceptions and without causing unnecessary trauma to the complainant.

For the latest episode of A Lawyer Talks, I have been discussing these recommendations with Professor Penney Lewis (pictured), the criminal law commissioner responsible for the project. Our ambition was to sum up her 620-page report in a conversation of half an hour.

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“The present way in which trials are organised, allocated and tried is no longer sustainable and, if continued, will lead to the collapse of the criminal justice system,” Sir Brian Leveson says in his report today on the criminal courts of England and Wales.

Leveson was invited to carry out his review by the justice secretary, Shabana Mahmood. She welcomed his 400-page report and promised to do “whatever it takes” to bring down the backlog of cases awaiting trial.

Thanking the former head of criminal justice, Mahmood said, “We will now consider all his recommendations and will respond, in full, ahead of legislating in the autumn.”

As expected, the former head of criminal justice is recommending that more cases should be decided by magistrates and fewer cases should tried by a judge and jury. He proposes a number of ways in which this can be achieved:

* Remove the right for defendants to elect (choose) trial by jury in cases that can currently be tried either by magistrates or in the Crown Court (“ether-way cases”) and where the maximum penalty is two years’ imprisonment.

* Reclassify some either-way cases as summary only, which means they would no longer be eligible for trial in the Crown Court.

* Create a new “bench division” of the Crown Court consisting of a judge and two magistrates, which could try all either-way cases and would deal with defendants expected to receive no more than three years’ imprisonment on conviction.

* Allow defendants in the Crown Court to elect trial by judge alone, subject to the judge’s consent.

* Require serious and complex fraud cases to be tried by judge alone.

* Allow courts to direct trial by judge alone in cases of exceptional length or complexity.

We discussed all these options in depth when I interviewed Leveson yesterday for the latest episode of A Lawyer Talks. But we didn’t spend too much time on his recommendations for encouraging greater use of out-of-court resolutions — alternatives to prosecution — even though that part of his report had been leaked to the Daily Mail in what was seen as a classic “dead cat” distraction strategy.

Initial reaction to Leveson’s proposals has not been entirely supportive — although I received a pretty dusty answer when I suggested he was taking on the entire legal establishment. To give those most affected by Leveson’s recommendations a chance to study the report — and listen to his only in-depth interview — I’ll leave coverage of the responses until tomorrow.

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When parents split up, it’s often the children who suffer most. But over the past three years or so, family judges have quietly developed an entirely new way of focusing on the most vulnerable members of a family. Rather than being litigant-led, it’s child-led.

To find out how the Pathfinder scheme works — and why it’s not available in large parts of England — I dropped in yesterday to interview the most senior family judge in England and Wales.

For the latest episode of A Lawyer Talks, Sir Andrew McFarlane, president of the High Court family division, told me about what he and his fellow judges regard as the future of private family law.

My regular podcast series is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.

Critics who imagine that we can secure our borders against migrants simply by leaving the European convention on human rights have overlooked another major international agreement that the UK signed at around the same time.

The United Nations refugee convention of 1951, extended in 1967, gives important rights to people who have a well-founded fear of persecution in their own countries. In particular, refugees must not be sent back to a country where they face serious threats to their life or freedom.

Speaking in the House of Lords on 2 June, Lord Macdonald of River Glaven KC (pictured) said that at the time the convention was agreed in 1951 there were thought to be around 2.1 million refugees under the mandate of the United Nations High Commissioner for Refugees. Last year, according to the UNHCR, there were no fewer than 43.7 million refugees.

The former director of public prosecutions said:

It is in the light of the changes since 1951 that I believe the rubric of the refugee convention must be considered. It says that anyone with a well-founded fear of persecution in their place of abode is entitled under the convention to asylum when they arrive in a contracting state, but that characterisation applies to literally tens of millions of people worldwide and may plausibly be claimed by tens of millions more.

Macdonald suggested that the UK might need to “revisit” the refugee convention. But how could that be done? And what might happen if we don’t?

Those are among the questions I put to him yesterday when we recorded the latest episode of A Lawyer Talks.

My regular podcast series is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.