Letters roundup - 14 September 2020

GCs can shape a diverse profession

I notice that Dentsu Aegis Network’s GC has launched a General Counsel Oath aimed at stamping out prejudice and discrimination (‘General Counsel Oath seeks to promote “positive” change’). This is further acknowledgement of the vital role GCs have to play in promoting equality and diversity, not just in their own organisations but in the wider profession.

It is a disappointing reality that, for some firms, it takes a threat to the bottom line to force them to sit up, take notice and act. When a failure to address inequality impacts on whether you win or lose business, there is a clear financial incentive to work harder to ensure women, BAME lawyers and other under-represented groups do not face barriers to progression and are there at the table when pitching for new business.

As the buyers of legal services, in-house lawyers are in a position to drive real change by making it clear that they expect the law firms they instruct to share their values and commitment to ensuring we have a profession that better reflects our society.

This initiative is a welcome step and follows a statement last year from 65 GCs spanning major UK and European companies which signed a letter urging law firms to improve their diversity efforts.

While much has been achieved, progress on equality for women and minorities in law, particularly at the top of the profession, remains stubbornly slow. GCs are increasingly playing their part.

Dana Denis-Smith, Founder, The Next 100 Years

JR’s protections go back to Magna Carta

In 2015, we celebrated the 800th anniversary of Magna Carta, and in November of that year the UK government website alluded to a clause therein: ‘No free man is to be arrested, or imprisoned, or disseized, or outlawed, or exiled, or in any other way ruined, nor will we go or send against him, except by the legal judgment of his peers or by the law of the land. To no one will we sell, to no one will we deny or delay, right or justice.’

As the barrister Adam Straw has explained, legal representatives for the mother of Dexter Bristol lodged a judicial review challenge in relation to the inquest into her son’s death. Dexter was a Windrush migrant who was unable to obtain enough evidence to prove that he had settled immigration status. This prevented him from working, put his benefits and housing at risk, and would have prevented him from obtaining free secondary medical care for the heart condition which killed him.

Medical evidence showed the stress resulting from his immigration problems contributed to his death. Ms Bristol argued that the inquest failed to investigate: systemic flaws in the ‘hostile environment’ policy; the evidence showing that those flaws contributed to Dexter’s death; and whether changes should be made to protect other Windrush migrants. After Ms Bristol issued the claim, the coroner consented to an order quashing the original inquest and for a fresh inquest.

The judicial review process which the legal representatives of the mother of Dexter Bristol applied for is founded on the clause contained within Magna Carta cited above. Judicial review enables people to challenge the exercise of power by a public body, including the government. A person can apply to the High Court if they feel a public body has acted unlawfully, and the High Court will then decide whether that body in fact followed the law. Magna Carta established that everyone was subject to the law, including kings and queens.

However, the power of the courts to step in and enforce this rule is now under threat, following prime minister Boris Johnson’s announcement in July that an ‘independent’ panel will examine the use of judicial review. The panel will be tasked with producing a report on how the system can be reformed as a way of curbing the court’s powers.

The irony is not lost on me that the prime minister’s decision was announced in the same week that home secretary Priti Patel promised to revolutionise the culture of the Home Office in the wake of the Windrush scandal. The government is seeking to change the mindset of staff who work in the department – while taking steps to restrict the very rights of those people the court is there to protect.

Pauline Campbell, Senior litigation lawyer, Waltham Forest Council

Public defenders?

The failure of HMCTS to ensure a meaningful flow of cases through the magistrates’ court not only means that we do not have a functioning criminal justice system, it also threatens to destroy a key element within that system: criminal defence lawyers.

I can give many examples of cases

that were due for sentence or trial

pre-lockdown which have simply failed to be listed, even now that lockdown ended on 1 July. By contrast, court martial centres have managed to get a respectful throughput of cases – it seems to me a case of attitude.

HMCTS is controlled by those whose livelihoods are unaffected by the number of cases processed. The delay is a sad reflection on those who appear not to understand that their job is to process cases, not keep postponing them and make an already troubled system unfit for purpose.

In the meantime, the defence community  shrinks to the point of extinction. This  means that as we have an adversarial system, the government is sleepwalking  into a situation where it will have to set up a public defender service.

This will make the current legal aid budget look like pocket money. It will also threaten a cornerstone of the criminal justice system – the ability of those accused of criminal offences to approach an independent lawyer of their choice to defend them.

There are some who, despite the cost, would welcome the opportunity to impose a public defender service which they can control. Similar motives may have played a part in the establishment of the Crown Prosecution Service and prevented police forces instructing lawyers of their choice to  prosecute their cases.

A properly functioning judicial system that deals in a timely and fair manner with criminal and civil cases alike is a cornerstone of any liberal democracy. The stakes are therefore extremely high, but it seems that no one at HMCTS is prepared to follow the lead of the court martial service and those resident judges (members of a  still independent judiciary) who are prepared to get things moving.

Whoever makes the decisions within the HMCTS needs to open their eyes and ears  and prove that they are worth the pay they receive.

RL Griffiths, Richard Griffiths & Co, Salisbury, Wiltshire