A last word

The importance of the circuits; Penn and Mead revisited; lobbying for amendments to RIPA; the compilation of Guidelines for international arbitrations; and signing off ...

Sir Frederic Pollock and Professor Maitland wrote, in The History of English Law before the Time of Edward 1, that “a full history of the circuits would be intricate and wearisome”. (See Vol. 1, Ch. VII, p. 180.) I do not agree. I believe that a proper history of any circuit would be both entertaining and informative. I enjoyed the late Graeme Williams QC’s book on the old Oxford Circuit. It left me wanting more.

I am spending much of my time this term visiting different circuits, which is a real pleasure. With a profession, and a legal system, like ours, there is a risk of a metropolitan focus. But for most of Her Majesty’s subjects, local justice is the only form of justice which matters. The importance of the circuits was well emphasised at the Bar Conference on 8 November 2014 in the Criminal Bar Association’s session on “The Great Criminal Advocates and what we can learn from them”.

There were speakers from different circuits addressing this topic, including Nigel Pascoe QC, a former leader of the Western Circuit. As a very junior barrister, over 20 years ago, I saw Nigel perform the one-man show in which he gave a dramatised account of the trial of William Penn and William Mead. I was doubly impressed: by the story itself, and by the way in which it was told.

For the uninitiated, I should say that the trial of Penn and Mead in 1669 was a seminal moment in our legal history. It was the case which established the right of the jury to return their own verdict. Penn and Mead were Quakers. They held a meeting in Gracechurch Street in the City. At that meeting they exercised what would today be described as their rights to freedom of religion and freedom of expression under Articles 9 and 10 of the European Convention on Human Rights.

The Recorder of London was unimpressed by the jury’s initial verdict (“guilty of speaking in Gracechurch Street”), and so he ordered that they be detained “without bread or water, fire or tobacco” in the hope that this might prompt a verdict which was more agreeable to him.

The jury stuck to their guns, even when they were fi ned for the verdict which they eventually returned, and subsequent proceedings established that they were right to do so. See Bushel’s Case (1670) Jones, T. 13; 84 E.R. 113; (1669) Vaugh. 135; 124 E.R. 1006 On 6 November 2014 I attended a hearing of the Investigatory Powers Tribunal. The hearing received some publicity because the Government disclosed copies of the policies adopted by MI5, MI6 and GCHQ when they intercept legally privileged communications.

The Regulation of Investigatory Powers Act 2000 (RIPA) contains no reference to legal advice privilege or litigation privilege, and one might therefore have been forgiven for thinking that it was not intended to authorise the interception of privileged communications. But the House of Lords decided otherwise in Re McE [2009] 1 A.C. 908.

Since then the Bar Council, ably assisted by experts from the Law Reform Committee, has been calling for an amendment to RIPA to prohibit the use of its powers to target privileged communications. We lobbied all of the political parties and a clause to this effect was tabled by a Liberal peer, Baroness Hamwee, in 2012. Now that the issue has gained some public attention, we will renew our efforts.

The Bar Council’s lobbying was more successful in the case of the Criminal Justice and Courts Bill. On 27 October 2014 the House of Lords passed three groups of amendments (proposed by Lords Pannick, Beecham, Woolf and Carlile) to those provisions of the Bill which would restrict access to judicial review. The Government opposed all of these amendments and was defeated on each of the relevant votes. We wait to see whether these amendments are reversed in the House of Commons.

Another long-term campaign by the Bar Council came to fruition on 23 October 2014, when the Council of the International Bar Association adopted revised Guidelines on Conflicts of Interest in International Arbitration. The Guidelines should help barristers who practise in international arbitrations, since they expressly recognise that sets of chambers are different from law firms and that a barrister may appear before an arbitrator who is a member of his or her chambers.

This is clear as a matter of English law (see Laker Airways v FLS Aerospace [2000] 1 W.L.R. 113), but it is not always so clear to overseas lawyers and clients, which can lead to difficulties in practice. The Guidelines can help in addressing any such difficulties. We are grateful to the Bar Council’s International Committee and to the experts from the Commercial Bar Association who have worked on these Guidelines, and conducted the related negotiations, over many years.

This is my last Chairman’s column, and therefore it is right that I should take the opportunity to thank everyone who has supported my work this year, including the members of the Bar Council, the barristers and others who work for the Bar Council or other Bar organisations in so many different ways and the dedicated and expert staff of the Bar Council. I particularly want to thank Stephen Crowne, our Chief Executive, Mark Hatcher, the Chairman’s Special Adviser, Charlotte Hudson, the Head of Business Performance and Governance, Paul Mosson, the Director of Operations and my personal assistants, Victoria Carpenter and Izabela Pawlak.

Author details: 
Nicholas Lavender QC

Chairman of the Bar.