As no one moved GMC to change its mind, the Bar was there, making an important contribution to the three days. During them, the importance of the rule of law was emphasised, some substantial issues got discussed, the Government got some ticking off and the British legal industry advertised its wares to a global audience of 2200 delegates from 120 countries. Few cared what time of year King John placed his seal in 1215 and so February was a sensible choice before the politicians departed to canvas for the election and to cope with its result. The GLS was “proudly sponsored” in part by the Advocacy Training Council and 39 Essex Chambers; the Bar Council was a Partner. It was supported by all four Inns, COMBAR, the Chancery Bar Association and TECBAR.
The latter three SBAs ran the Specialist Bar Associations’ Session held at the Rolls Building. The COMBAR break-out filled court 8. Lawrence Rabinowitz QC, Lord Grabiner, QC, Joe Smouha QC and Helen Davies QC each gave a succinct law lecture on various themes including the law of arbitration in England, why England is an effective jurisdiction for arbitration and how the English courts could act as an international policeman. Statute law, case law, and relevant dicta supported by the odd comment were effortlessly pinged out at the audience. How much of the rush of information those present took in was probably less important than the sub-text: these people know what they are talking about, they even make it sound easy; so come to England and use the English Bar. It was followed by a mock application for a freezing order. Charles Bear QC exuded a commanding presence and a thorough command of the material. Mr Justice Flaux demonstrated how the judge engages in a dialogue with counsel to narrow the issues. There was the use of English under-statement (“the company may or may not be at arm’s length with the litigant”), and a clever exchange showing English humour: “your Lordships’ unnerving familiarity with the authorities” being met with “when you’ve stopped crawling, you’ll notice that your skeleton is late”. For those from abroad who treasure the English manner, not to mention the English accent, this was heaven.
At the main conference venue, the Advocacy Training Council (ATC), Silver Sponsor of the GLS, held a workshop to explain why the clever men and women at the Rolls Building are so good at their job. The title was Can advocacy teaching cross jurisdictional borders? but as it was chaired by Desmond Browne, QC former Chairman of the Bar, “the jury”, i.e., those present, did not bother to retire before returning a verdict of “Yes, of course it can.” He himself had been to Zimbabwe a number of times, and teams had been sent around the world: Pakistan, Sierra Leone, India, South Africa and more recently Poland were cited amongst the examples. Good advocacy was a foundation of the rule of law.
An ATC team showed how it is done: Colin McCaul QC explained the Hampel method in its strictest and most austere version, and Sarah Whitehouse QC showed how a trainer does it, with the assistance of two young members and a pupil from her chambers. As we were in London, the case study was somewhat incongruously set in a bar in Lagos to show how English case studies can easily be transferred to local circumstances as indeed happened when a team visited Nigeria. Although Sarah assured us that her colleagues were in reality “flawless advocates”, Desmond soon returned to point out the truth that one advantage of being a trainer is that it reminds you that one is not a flawless advocate. He highlighted the Advocates’ Gateway which is open to all, and praised countries such as South Africa, India and Zimbabwe who had now developed their own corps of trainers who are spreading good practice as widely as possible. Beatrice Mtetwa had told him that she believed that the lessons of the ATC training had led to a thawing of relations between the judiciary and the legal profession in Zimbabwe.
Recipients of the training, who had crossed the world to come to the Summit, endorsed what had just been said. Two possible problems were mentioned in questioning: language (the ATC only delivers this in English but that had not been a problem so far) and the fact that the feedback was based on the English idea of what good advocacy was. Sarah stated that if there were a difference in approach (the point was raised by a lawyer from Poland where the English notion of leading questions is not permitted) the trainers can allow for that when delivering their headlines.
“Getting the balance right: a comparative approach to judicial review of legislative and executive decisions” brought together a panel which was both learned and diverse. Chaired by one of our great public lawyers, Lord Justice Laws, it started off with Lord Pannick QC explaining the principles of judicial review and how “Wednesbury unreasonableness” was giving way to the test of “proportionality”. He pointed out that judges are neither administrators nor legislators and lack the information which civil servants possess and so they are careful not to substitute their views for that of Parliament. He then condemned the recent changes to judicial review in the Criminal Justice and Courts Act 2015 (Lord Faulks, who took it through the House of Lords, was amongst the audience), and saying that “if you wrap yourself in Magna Carta” which he said the Lord Chancellor did, “you’re going to look ridiculous if you throw cold water on one of its most important legacies”. Nevertheless Lord Pannick quickly dismissed a question from the floor about the comparative advantages of the French system of a parallel system of courts dealing with these matters on the basis that the English system was just fine and had been exported abroad.
Three jurisdictions to whom it had been exported were duly represented. William Hubbard, President of the American Bar Association, explained how the American system of judicial review, which placed the judiciary as an equal to the legislature and executive, had started with Chief Justice Marshall’s decision in Marbury v Madison. He missed a trick by not pointing out that the Lord Chancellor is not the first member of the executive to resent judicial interference: he failed to quote President Jackson’s famous remark in 1832, “John Marshall has made his decision, now let him enforce it”. But now “most Americans accept judicial supervision” and the principle that the Constitution must trump majority preferences. Justice David Fraser of the Supreme Court of Jamaica said that “proportionality” had not yet featured prominently in Jamaican law. Lim Chee Wee from Malaysia explained the challenges in his own country. With the same party in power since 1957, parliamentary supervision of the executive was ineffective, and it was only in 2014 that the courts allowed a litigant to bring an action for judicial review because he had a “real and genuine interest in the matter” rather than the old test of having to have suffered personal harm as a result of something which applied to everyone. Their Court of Appeal now felt able to extend its jurisdiction to Sharia law and recently overturned the ban on cross-dressing which was based on the belief that it lead to the growth of HIV.
Alison Foster QC came into her own in answering the question about the judges creating “a big highway” to allow litigants to challenge any authority. She said that it is necessary “where there is a desert of political discussion”, citing the habit of Select Committees who fostered a misunderstanding of our tax laws. Summing up, Lord Justice Laws said that judicial review is creative and it affects the constitutional tectonic plates but there must be judicial restraint: “we have no tanks to put on other people’s lawns”.