A Lawyer Talks

Court challenges to major building projects will be limited under plans announced by the prime minister yesterday. In a press release, Downing Street said:

Data shows that over half – 58% – of all decisions on major infrastructure were taken to court, getting in the way of the government’s central mission to grow the economy, and put more money in hardworking people’s pockets.

The government today confirms this will be overhauled, with just one attempt at legal challenge for cynical cases lodged purely to cause delay rather than three.

What effect will this have on the process of judicial review? Would we be losing an important check on the powers of government? Should judges in the High Court block appeals if the law is changed?

These are among the questions addressed by two guests on the latest edition of my podcast, A Lawyer Talks. Nigel Pleming KC and Stephanie David are among the editors of a new book called The Law of Net Zero and Nature Positive, to be launched at 39 Essex Chambers on 18 February. The book — believed to be the first of its kind anywhere in the world — is available from the publishers, London Publishing Partnership, at a remarkably modest price for a legal textbook of some 1,200 pages.

It covers cases that were decided as recently as two months ago. When I dropped in to see the two co-editors yesterday, we discussed the most recent developments in environmental law, including the groundbreaking KlimaSeniorinnen ruling from the European Court of Human Rights that I reported here last April.

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

As I reported in some detail yesterday afternoon, the chair of the Criminal Cases Review Commission has decided to leave her job after an independent panel concluded by a majority that she should no longer head the body that reviews suspected miscarriages of justice. Successive justice secretaries had lost confidence in Helen Pitcher because of her handling of the Andrew Malkinson case.

Pitcher made some pretty punchy comments in the resignation letter I published yesterday. And the panel that advised the King to sack her didn’t mince its words either. In this exclusive interview for A Lawyer Talks, Pitcher reveals why she stayed, why she went and why she is resisting calls to step down from her role at the Judicial Appointments Commission.

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

A proposed new duty requiring barristers to advance and promote equality, diversity and inclusion would be “unlawful and misguided”, the incoming chair of the Bar Council said last night.

Barbara Mills KC, who took over this month as leader of the 18,000 barristers in England and Wales, said she was concerned that the bar’s regulator was seeking to use the barristers’ code of conduct “as the vehicle to attempt to change our culture”.

Last September, the Bar Standards Board launched a consultation on replacing a core duty in its handbook that requires barristers not to “discriminate unlawfully against any person” with a pro-active duty to “act in a way that advances equality, diversity and inclusion”.

Barristers’ leaders were concerned that the proposals would hinder progress towards a more diverse profession, “given what we believe to be ambiguity and potential ineffectiveness of the regulations as proposed”.

Mills said:

The consultation has generated more heat than light and is a great reminder of the care we must take that any attempt to improve equality, diversity and inclusion does not create unhelpful division.

The road to hell, it is often said, is paved with good intentions.

In her first interview as incoming chair of the barristers’ representative body, Mills told me last month she had been encouraged by remarks made to me in September by Mark Neale, director-general of the Bar Standards Board. “It’s a very genuine consultation,” he assured me in response to criticism I had published. “We absolutely want to hear what the profession and individual barristers have to say.”

You can hear my interview with Mills by clicking on the ► symbol at the top of this page. There is no paywall this week and the podcast can also be heard on the Counsel magazine website and other platforms. I have written it up for publication in Counsel and you can now read it online. And the full text of Mills’s inaugural address is published here.

Mills said last night she was keen to work with the regulator and “to open meaningful dialogue”. She also encouraged individual barristers to come and talk to her if they disagreed with her position on equality, diversity and inclusion.

Unlawful

Although Mills was concerned that the framing of the proposed new duty to deliver a more diverse profession was unlawful and misguided, she said nothing more about the laws it might breach.

However, the Free Speech Union — which describes itself as a non-partisan, mass membership public interest body that stands up for the speech rights of its members and campaigns for free speech more widely — has commissioned legal advice on the issues Mills raised.

In a 23-page opinion dated 29 November 2024 which the Free Speech Union have kindly allowed me to publish, Jason Coppel KC and Tom Cross say that adopting the proposed core duty and the proposed equality rules to meet stated equality outcomes would be unlawful and therefore liable to be quashed on a claim for judicial review.

That, they add, would be because:

* the rules would be directly discriminatory against at least some barristers;

* alternatively, they would constitute indirect discrimination against some barristers;

* they would be incompatible with barristers’ rights under articles 9 and 10 of the human rights convention and thus breach section 6 of the Human Rights Act 1998; and

* they may require barristers to commit unlawful discrimination in offering pupillages or tenancies, contrary to the Equality Act 2010.

Violence against women and girls

As the first family practitioner to chair the Bar Council since 1988, Mills said that another of her priorities was to raise the profile of the family bar and help the government in its mission to halve violence against women and girls.

This could be prevented in some cases through early intervention. It also required a clear definition — “one that encompasses all forms of violence and harmful practices specifically aimed at women and girls”.

The family courts were ideally placed to tackle this work but they needed effective and sustained investment.

“At the very least,” she said, “every complainant and every alleged perpetrator should have access to legal advice and representation in the family court.”

Wellbeing and harassment

Wellbeing was another priority, she said:

Whilst much is said about wellbeing now, the emphasis remains centred around crisis management.

What I would like to see in the profession is wellbeing losing its stigma as a sign of weakness and elevated to the same non-negotiable level as having an accountant or having insurance.

Baroness Harman KC, a former deputy leader of the Labour Party, had been commissioned by Mills’s predecessor Sam Townend KC to conduct an independent review of bullying and harassment at the bar. That followed a Bar Council report which found that 44% of respondents had experienced or witnessed bullying, harassment or discrimination in the previous two years — an increase on previous survey results.

“The review provides an important opportunity to reset our culture and improve the working lives of all in our profession and I intend to give it the priority it deserves,” Mills said last night.

“I am committed to working with Baroness Harman and providing her with the support she needs to finalise her review. I look forward to working with her and the profession to consider the findings and her recommendations for action.”

Equality and diversity

With Kirsty Brimelow KC as vice-chair and Lucinda Orr as treasurer, Mills said it was the first time in the Bar Council’s 131-year history that all three of its office holders were women.

Mills is also the first person of colour to lead the bar. Calling on others to join her in representing their profession, she recalled an expression she had learned while growing up in Ghana: “If you want to go fast, go alone. If you want to go far, go together.”

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Ariel, the magician’s “trusty spirit”, speaks with Prospero in The Tempest about magic bringing about a “sea change”, a transformative power creating something “rich and strange”.

As befits a lawyer who read English at Oxford, Jonathan Kewley drew on Shakespeare to describe artificial intelligence in a lecture earlier this month. The solicitor, who was awarded the title of partner of the year at the British Legal Awards last month, is co-head of the Clifford Chance tech group, a cross-disciplinary team of more than 600 lawyers advising on tech risk and opportunity.

“When I use AI in my daily life,” said Kewley, “its power and potential often leaves me in a state of shock and awe. Be in no doubt: we are currently witnessing something quite extraordinary. We’ve evolved through the Stone Age, the Iron Age. We now find ourselves in the Intelligence Age.”

But Kewley had a warning for us all. “This modern magic can turn dark,” he said:

At the end of The Tempest, Prospero relinquishes his magic and releases his spirit assistant Ariel. “I’ll break my staff,” he says. “I’ll drown my book.” But we cannot walk away from AI now.

Let’s not sleep-walk into this. Let’s shape the future of AI by putting humans at the centre. Wake up, embrace the opportunity with our eyes wide open. The real magic rests in getting the balance right.

Kewley had been invited to speak at the Central Criminal Court by Alderman Gregory Jones, the first practising KC to serve as one of the City of London’s two sheriffs. His lecture and the discussion that followed were part of the City and Legal programme of events chosen to promote the Old Bailey as an international forum for exploring the rule of law and the interaction between the law and business.

I must declare an interest: Jones has invited me to speak at the court in February about freedom of speech and transparency. Other discussions in the new year will cover crypto-assets, smarter financial regulation, infrastructure and climate change.

As Kewley said, AI can also be dangerous — just as the first motor cars were created without safety in mind. It is leading to errors in hiring and firing staff in the workplace. It could cause a flash crash in the financial markets. It can even lead to deaths. But, as a solicitor, Kewley deeply believed in the power of law to keep this magic in check.

That’s what we discussed in a fascinating episode of A Lawyer Talks. My regular podcast is a bonus for paying subscribers to A Lawyer Writes. Everyone else can hear a short taster by clicking the ► symbol above.

How can we reduce trial delays of two or even three years in the Crown Court?

Yesterday, I reported a suggestion from the director of public prosecutions Stephen Parkinson that was promptly skewered in the comments section by Ian Kelcey and Tom Crowther.

Parkinson had also suggested that we might explore some ideas that had recently been backed by Alex Chalk KC, the former Conservative justice secretary. These would involve limiting the right to jury trial — a radical move, but one that might find favour with no less a figure than the lady chief justice of England and Wales, Baroness Carr of Walton-on-the-Hill.

We know from the National Audit Office report yesterday that the Conservative government’s prison building programme will not produce the prison places that are said to be needed. One solution offered by the Ministry of Justice is a sentencing review that’s intended to ensure prisons do not run out of space again. But that review has a fundamental flaw, as Chalk told me when I went to see him at the chambers from which he now practises.

You can hear my interview with the former justice secretary — and a brief comment from Parkinson — in the latest episode of A Lawyer Talks.

My podcast is a bonus for paying subscribers. Everyone else can hear a short taster by clicking the ► symbol above.

A bill that would make it illegal to create or solicit sexually explicit or intimate images without the consent of the people in them will be considered by the House of Lords next week.

The bill would cover deepfake content, where photos or video are digitally manipulated to make a person appear to be in an intimate situation.

Baroness Owen of Alderley Edge, who was the youngest member of the House of Lords when she was nominated in Boris Johnson’s resignation honours list in July last year, has sponsored the Non-Consensual Sexually Explicit Images and Videos (Offences) Bill as a private member’s bill. Its second reading debate is scheduled for 13 December.

Owen explained the purpose of her bill in a note to House of Lords library:

The problem of sexually explicit deepfakes is one that is inherently sexist and rapidly proliferating. They have been described as the new frontier of violence against women. The content is created using generative AI and can be made in a matter of seconds with easily downloadable nudification apps or online platforms. Whilst it is illegal to non-consensually share sexually explicit deepfakes online, it is still not illegal to create them in the first place.

The bill was prepared with the help of Clare McGlynn KC (hon), a solicitor and professor of law at Durham University (pictured in the graphic above) who specialises in the legal regulation of sexual violence, pornography and online abuse.

For the latest episode in my podcast A Lawyer Talks, McGlynn spoke to me about Owen’s bill and the chances that it might attract government support.

My podcast is a free bonus for paying subscribers. Everyone else can hear a short taster by clicking the ► symbol above.

We are used to the idea of the criminal law penalising us when we do bad things. But there’s an increasing tendency for the state to punish large organisations for doing nothing at all.

The latest example of this is the new offence of failure to prevent fraud, which takes effect next autumn. Statutory guidance was issued by the government earlier this month. But it was not as helpful as businesses might have hoped.

For the latest episode of my podcast A Lawyer Talks, I have been discussing the legislation — and the guidance — with Nick Vamos, head of business crime at the long-established criminal defence solicitors Peters & Peters.

A former head of special crime and head of extradition at the Crown Prosecution Service, Vamos represented Boris Johnson when the former prime minister was accused of misleading parliament over “Partygate” and represented the Post Office in the appeals it faced by former postmasters who were convicted on flawed evidence.

My podcast is available to paying subscribers. Every one else can hear a short taster by clicking the ► symbol above.

The death of George Carman QC at the age of 71 meant — as I told readers of the Daily Telegraph at the beginning of 2001 — that the age of the great advocate was at an end:

Until now. The 25 pages Carman managed to complete before his death form the starting point of a new book called Get Carman, which records his casework during the 1980s and 1990s. All the big names of the period are there: Jeremy Thorpe, Geoffrey Prime, Ken Dodd, Sonia Sutcliffe, Elton John, Gillian Taylforth, Jonathan Aitken, Neil Hamilton and Mohamed Al Fayed.

The book is written by Karen Phillipps, a fellow barrister who was Carman’s confidante and companion after his three marriages ended in divorce.

For the latest episode of my podcast A Lawyer Talks, Phillipps told me about the man she knew and the cases he won. She also answered the question I asked in 2001.

The podcast is available to paying subscribers. Every one else can hear a short taster by clicking the ► symbol above.

What retired senior judges choose to say about major issues of the day is of real interest and importance — particularly when they are discussing legal issues — a former head of civil justice said last night.

Lord Dyson, who retired as master of the rolls in 2016 and then rejoined the chambers he used to head as a barrister, was delivering a lecture at Gray’s Inn called “Judicial after-life: should it be subject to any limits?”

His starting point was an open letter published in April and signed by Lady Hale, former president of the Supreme Court, as well as 600 other former judges and lawyers. The letter asserted that the International Court of Justice had “concluded that there was a plausible risk of genocide in Gaza”.

As Dyson kindly mentioned in his lecture, I then pointed out that this was not what the court had said. It was the Palestinians’ rights that were found to be plausible, not the risk they might face.

This prompted Dyson to sign a counter-letter correcting the error, something he told me he had never done before.

A final attempt to put right widespread misreporting of the court’s ruling was made some weeks later by the judge who had delivered it. “The court decided that the Palestinians had a plausible right to be protected from genocide,” Joan Donoghue told the BBC. “It didn’t decide that the claim of genocide was plausible.”

Meanwhile, Dyson had been struck by a paragraph in the Guardian’s report of the letter Hale had signed:

The letter’s significance lies not just in the number of signatories but the fact that it has been signed by senior retired judges, who normally shy away from commenting publicly on issues that are politically sensitive.

That was the catalyst for his Birkenhead lecture at Gray’s Inn, he said in an interview this week.

I asked Dyson whether it was appropriate for retired judges to give legal advice. If so, should they be regulated in the same way as lawyers?

We discussed whether Lord Neuberger, Hale’s predecessor as president of the Supreme Court, should have advised the Post Office on the civil claims against it — and whether its counsel, Lord Grabiner KC, had been right to hint at Neuberger’s involvement when addressing a court.

Arguing that Mr Justice Fraser should withdraw from the case, Grabiner had told the judge:

I am not the only judicial figure or barrister that has looked at this with a view to reaching that conclusion. It has also been looked at by another very senior person before the decision was taken to make this application.

I also pressed Dyson on whether he thought Neuberger and Lord Hoffmann should continue to sit in the Hong Kong Court of Final Appeal.

You can hear our conversation in the latest edition of A Lawyer Talks. My podcast is reserved for paying subscribers to A Lawyer Writes but, as an experiment, I am offering this brief taster to all readers:

It’s an amusing example of how intimidating it may be for judges to find someone who has served at a higher level in the judiciary appearing before them in court.

Spare a thought for Robert Jenrick. A few hours after being appointed shadow justice secretary — with Kieran Mullan alongside him as the shadow justice minister — Jenrick was bounced back onto his bench by the formidable Alex Davies-Jones. His questions may read well in Hansard but the two minutes of video that I have posted above show how badly the defeated leadership candidate misjudged the position he now finds himself in.

Davies-Jones, MP for Pontypridd since 2019, may be no more than a junior minister at the Ministry of Justice but she dominated her department’s Commons questions yesterday, showing full mastery of the justice brief.

Her secretary of state didn’t get a look-in for half an hour — literally so, as this image shows:

While Davies-Jones was at the despatch box, just about all that could be seen of Shabana Mahmood was a sliver of light-blue fabric behind the junior minister’s right elbow.

Separation of powers

Many of MPs who asked questions yesterday were new to their jobs. But inexperience is no excuse for a failure to understand the proper limits of parliament. Here are a couple of examples:

Peter Bedford (Conservative): A lady from Northampton was recently given a 31-month sentence for a tweet, whereas an individual who incited physical violence on the streets of Birmingham as part of a pro-Palestinian protest received a far lesser sentence. Does the secretary of state agree that such inconsistencies create the perception, at least, that we have a two-tier justice system?

Shabana Mahmood: It is incumbent on members to ensure that such a perception does not take hold and not to inappropriately compare sentences handed out in different types of cases. As the hon gentleman well knows and every member of this house should know, sentences in individual cases are a matter for the independent judges who hear those cases; the trials unfold in front of them…

Robert Jenrick (shadow justice secretary): While of course respecting the judicial process and not commenting on the individual facts of the case, can the secretary of state explain the reported two-week delay between the Crown Prosecution Service making a charging decision with respect to the alleged Southport attacker and it being announced to the general public?

Shabana Mahmood: As the right hon member is now the shadow lord chancellor, may I remind him that we do not comment on cases that are sub judice? That includes commentary that everyone is aware relates to cases currently going through our legal processes. What I will say is that those are independent decisions for the Crown Prosecution Service, which ultimately decides what charges to bring. In live police investigations into complex cases, it is appropriate that those investigations, the charging decisions and, ultimately, the cases are done by the independent parts of the process and that there is no interference from government.

Sir Lindsay Hoyle, the Commons speaker, made it clear that ministers would indeed have to answer the concerns raised by Jenrick — but not until the case he was referring to had been concluded.

Single justice procedure

As usual, not much emerged from ministers’ answers. But there was an announcement about the much criticised single justice procedure, under which a lone magistrate processes a long list of undefended prosecutions with the assistance of a legal adviser. The list of defendants and the penalties they receive is available to reporters but the cases are not dealt with in open court.

“I have listened carefully to concerns raised about the single justice procedure,” said Heidi Alexander, the minister of state.

She continued:

As a first step, I have asked the Courts and Tribunals Service to redesign the single justice procedure and make it clearer. I will also call in single justice procedure prosecutors to discuss ways in which we can ensure that they consider the public interest in advance of making prosecutions…

I am clear that the single justice procedure is vital for the efficient running of the magistrates court. However, it must operate fairly and effectively. I will not tolerate poor practice and I will not hesitate to fundamentally reform the system if that is required.

Alexander’s announcement was welcomed by the chief executive of the Magistrates’ Association, Tom Franklin.

He said:

In March, we called for single justice procedure reform and published 12 recommendations to improve its operation, transparency and fairness. Our recommendations included making it a requirement that prosecutors see all pleas and mitigations from defendants before the cases are heard by the magistrate and improving communication, through a review of the paperwork sent to defendants, to make it simpler and easier to understand.

However, reform needs to go further. We are also urging the government to boost transparency by making provision for single justice procedure sittings to be observable by accredited journalists and by publishing more data on the single justice procedure — such as how many defendants plead guilty, how many make no pleas and how many ask to come to court — nationally and broken down by region.

Shadow cabinet

Who’s missing from this picture?

I can see no sign of Sir Jeremy Wright KC MP, shadow attorney general in Rishi Sunak’s caretaker opposition.

Who, then, will replace him? Will it be an MP to shadow the solicitor general Sarah Sackman KC MP in the Commons or a peer to question her boss Lord Hermer KC in the Lords? We should know soon.

Update 1640: the shadow attorney general will be Lord Wolfson of Tredegar KC, who resigned as a justice minister in Boris Johnson’s government over the “scale, context and nature” of breaches of the criminal law in Downing Street.

He will remain in practice at the bar.

Update 1800: Helen Grant MP, a solicitor and former justice minister, will be shadow solicitor general.

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