 Felly, gweithio'n gynghori. Y Llywyddyn Merryrch, David Williams, yng Nghymru wedi'u gweithio'r cyfnodd yn Ysgrifenni John Nolan o'r ffaith o'r Feirdd ystod o Siwtto i'r Johnson o'r Ysgrifenni Mae'r Rhaid Michael Rusg o'r ddysgu Llywodraeth Cymru o'r Adlantau. Mae'n dda ni'n cael ei ddefnyddio'n gyfnodd maes o'r cyfnodd ymwysig ac o'r sefydlu'r gynghwil o'r Ysgrifenni'n Gweithio'r evening and all the nine previous Sir David Williams lectures possible. This is the first Sir David Williams lecture to be given since Sir David died last September, and so it is appropriate that we should remember also the man, a friend of many here this evening, who inspired the generosity of Mr Nolan and Mr Russ while they were visiting fellows at Wolfson College. It would be audios to list before this audience Sir David's many achievements, but I will perhaps be forgiven for repeating what I said at his memorial service. Sir David Williams was a man of immense humanity with sympathy and understanding for all. Through his work and through his many students he contributed mightily to the formation of modern public law. He was simply the best of law and the best of Cambridge. We shall not look upon his like again. And now to our lecturers this evening, the honourable Michael Beloff QC. Michael Beloff is one of the best known and most distinguished administrative law baristers in the land today. Having appeared for instance in the House of Lords on public law matters on more than 40 occasions as well as in many other tribunals across the entire common law world. But he is much more than a practitioner having had another career in education and scholarship. He was president of Trinity College Oxford from 1996 to 2006 and he has contributed greatly to the scholarly literature on public law in many facets and in many ways. He has lectured at universities all over the world. The Chamber's Directory of Barristers for 2010 says of him that he is a sheer joy to listen to so we may anticipate a feast as he addresses us now on the subject of a view from the bar. But I have left his greatest distinction until last. It was Sir David Williams who after careful consideration chose him to deliver this the 10th Sir David Williams lecture. Ladies and gentlemen, Mr Michael Beloff. My Lords, ladies and gentlemen, the sense of privilege that I feel in being invited to deliver this lecture is tempered by my sadness that the distinguished lawyer in whose honour it was founded is no longer with us. David was a friend of and mentor to me for many years. We first met in the 1960s when he was a law fellow at Kiebel Oxford, a part of his career which was mysteriously airbrushed from the memorial service which took place earlier this year in Great St Mary's Church. He became an academic tenant in the chains of four to five graves in square of which I was then joint head. He acted as he put it as my junior when I chaired the judicial subcommittee of the senior service review body. We were clearly suspected in tandem of apparent if not of actual bias towards the payees since at the conclusion of our term no lawyers were appointed to replace us. He was one of my referees when I became president of the smaller I choose the adjective with care of the two oxbridge trinities and it was characteristic of David whose modesty was preeminent among his many memorable qualities that in asking me to be the 10th lecturer in this series he told me only after I had accepted that he was in all likelihood destined not to be among the audience. Alas his prophecy was fulfilled I miss him greatly. My predecessors as lecturers have all been lawyers of the highest repute, the last four being chief justices of major democracies. Indeed for me to follow in the immediate footsteps of the chief justice United States of America or be it a stripling some years younger than I risks giving a new meaning to the word bathos but incapable of matching these generals in delivering ex-cathedra statements from the mountain peaks of the law I a mere foot soldier have decided to pitch my perspective from its planes. I've been for more than four decades a member of the bar of England and Wales so crossing what my researchers for this lecture identify as a chronological plimsel line. In the Bodleian law library I came across two memoirs entitled 40 years at the bar one by Edward Abinger the other by James Balford Bowen only to find a few shells on a volume entitled 72 years at the bar by Ernest Bowen Rowlands a quantum leap of forensic longevity equivalent in terms of record breaking to Usain Bolt's exploits as a sprinter. Abinger's plea and mitigation for his autobiography rested on the coincidence that as he wrote he had nearly attained the three score years usually allotted to men coupled with the urgings of his many friends I could only avail myself of half of that not altogether convincing excuse and it is not my purpose in mimicry of these worthy's merely to indulge in titivated courtroom reminiscence nor to give an apologia provita mea although my lecture will be in part a credo. At the end of that classic 60s film Alfie the hero played by Michael Cain turns towards the camera and asks what's it all about it's that question as a veteran jobbing attorney that I shall seek to answer but let me start my voyage in that now iconic decade. I was called to the bar by Grey's Inn in November 1967 in order to qualify aspirant balusters who did not need to be graduates could study law in their own time from nutshell notes scripted by Gepson and Weldon my practical training consisted of watching my pupil master to whom I was apprentice for the next year and learning from his trials and his errors in equal measure for this facility I had to pay him the princely sum of 50 pounds in those days Barrister still conventionally wore cutaway black jackets and striped trousers and a handful continued to affect bowler hats there were few females in the profession in the year of my call approximately seven percent of new baristers ejections were still voiced devoid of any sense of shame to women being admitted to chambers on the basis they would inevitably soon depart to pursue their proper and predestined role of child bearing and rearing ethnic minority council was still rarer while the ins of court plays host to a significant proportion of overseas students from the new common wealth and old empire those same students were expected to return to their own country and exploit the title of barrister at law to immediate advantage accelerating to physicians such as attorney general or even chief justice with a velocity which their English equivalents could only emulate in their dreams chambers were generally small my own set to have court had when I arrived 12 members and no qcs chambers names were then their addresses too membership was for life departure of the set to which one had been admitted as a tenant indeed as a pupil on the solitary say so the head of chambers himself selected on the principle of bugging's turn was as rare and as disagreeable as divorce chambers administration rested exclusively on the clubs were range one starry negotiated one's fees and took 10 percent of them the so-called shilling in the guinea control of the profession still rested substantially with the ins the bar council being more a representative and a regulatory body and its chairman in badgeotian terms being more dignified and efficient solicitors were a segregated separate and unequaled branch the legal profession the relationship between barrister and solicitor was a vertical not a horizontal one even though solicitors were the single source of barrister's instructions on that basis solicitors came to seek advice only in the barrister's chambers it was a breach of the bar's professional etiquette to fraternise with them or otherwise to advertise a barrister's own expertise such as it was however discreetly the all but omnipotent clerks acted the barrister's age at the outside world and could make but also break careers solicitors enjoyed no rights of audience in the higher courts of law where silks still appeared with juniors were paid two-thirds of their leaders fee judicial appointments were made entirely from the ranks of the bar the lord chancellor by means of the usual but archaic processes of consultation himself determined who should become a queen's council or a judge it was clear that some who aspired to such status had a black mark against them but who had put it there was obscure and there was no formal means by which it could be exposed still less eradicated it was assumed that most baristers did aspire to the high court bench it invited to accept such an appointment a qc was expected to accept it and one judge harry fisher who swiftly abandoned the office first in favour of the city and then of university life after brief exposure i parody the monotony of personal injury litigation in sundland punctuated by the occasional fray in darlington was regarded as having done that which a gentleman should not do in court the tradition of oral advocacy and oral evidence was unchecked precedents relied on would not infrequently be recited in full judges conventionally declined to read any papers before coming into court in case it prejudiced their otherwise open minds they acted as referees determining who won or lost penalizing breach the rules but were otherwise uninvolved cases would frequently be adjourned for council's convenience or sometimes because the judge had a public duty to perform occasionally a euphemistic synonym for an invitation to a royal garden party baristers uniquely among the professions were immune from suits for negligence although also they could not sue for their fees the only established form of dispute resolution alternative litigation after demise long since the dual was arbitration the technology to support such litigation was immature typewriters were at best electric not electronic the fax machine had recently arrived on the scene the word processor was unheard of black purist was still fruit hooking files was a laborious process conferences took place face to face research was done in libraries judges recorded evidence and argument in manuscript under the legal age system inaugurated in 1949 in broad terms anyone who satisfied a means and merits test could walk through the door of any solicitor who was entitled regardless of expertise to take with council's assistance a case through from start to finish at public expense england was truly an offshore island in the legal world although qc's but still travel to exotic regions of the old empire Singapore Malaysia Hong Kong the Caribbean islands newly independent african states to appear in full fig and with white wig in courtroom's cool lonely by revolving fans the domestic common law was uninfluenced by the law of the common market all by the european convention on human rights the writings of academics were only cited in court after their authors were dead but not by venerable tradition before fast forward the clock to 2010 four and a half decades later how different is the picture barristers are still called to the bar by the ins of court institutions of medieval origin but with considerable staying power but the bar is now a holy graduate profession pupillage is still a necessary part of the aspirant barristers education but it is proceeded even to those with law degrees were spared them and not only the graduate diploma in your years specific training by the bar professional training course in such matters as advocacy negotiation client relations and other matters which previously the fledgling barrister had been expected to acquire by some mysterious osmotic process tuples no longer pay to the privilege of pupillage now itself a structured training program on the contrary the major sets of chambers for low themselves to offer substantial scholarships of up to 50 000 pounds a year to attract the best and brightest of their generation all past the mark tomb model of patch the pupil's application clearinghouse itself based on ucast restricts the window for applications to a specified time of year in common with professional football transfers to prevent unseamly competition the barristers formula tar of yesteryear gathers moth balls in the attic dark suits are still obligatory although the concept of darkness appears somewhat flexible women who now constitute 58 percent of those admitted the profession usually wear the trousers minority ethnic council on the rise constituting almost 24 percent of pupils in 2007 chambers are larger in Birmingham two sets have more than 110 ms my old set now number 75 of whom almost half a queen's council it has been reprissant Blackstone in the modern style where no significant figure in English legal history from Bracton and Erskins due to Denning and Wilberforce have not been pillaged to add borrowed lustre to a chamber's name not to speak of matrix professional Homer Sherry boo's which is not to Hollywood rather than to history or the house of law for inspiration in its title tenants and pupils are chosen by a rigorous process conforming to modern best practice informed by anti-discrimination legislation and the human rights app and not only is it now conventional for upwardly mobile barristers to move to different sets but transfers are even solicited again just as they are between football clubs the clerks a durable race have been supplemented by practice managers or even by chief executives all in our salary the clerks 10 percent has gone with the wind once it was appreciated his survival would guarantee the recipient an income far in excess of that enjoyed by the highest earning barrister the bar itself has been affected by waves of legislative regulation the courts and legal services act in 1990 the access to justice act 1999 the legal services act of 2007 in order to react to but also to anticipate further control the bar council has become an executive engine spawning committees position papers and guidelines on every subject from international relations to maternity leave the chairmanship is now a full-time post the balance of power between the professionals shifted barristers will dispense advice in solicitors offices solicitors are no longer prohibited guests but encouraged to attend shameless parties where they are wooed with champagne and cannabis some might say excessively movement within the bar is parallel by movement from one profession to another between the bar and solicitors is no longer a rubicon but a rivulet there is a wealth of legal directories in which lawyers specialities can be recorded it's nonetheless irritating to be flattered by some publisher as a leading expert in a particular field but then invited to pay seven several hundred pounds so this remarkable piece of intelligence can be broadcast to the wider world these weighty volumes nonetheless proliferate with their own ranking list treated by barristers with reverence or contempt depending on how they are personally assessed in the same way as politicians variously treat opinion polls there are the lawyers equivalent of the oscars and BAFTA ceremonies held in the ballrooms of leading London hotels in which titles such as construction and technology junior of the year are handed out by celebrity compares solicitors subject only to fulfil the certain criteria in terms of experience and training have rights of audience in the highest courts where qc's now often appear without the buttress of a junior as a quid pro quo the bar has promoted direct access cutting out the solicitor middleman this is not despite dire predictions brought a halt to the expansion the independent bar when I was called there were two thousand three hundred barristers in independent practice now there are over twelve thousand in the law's house there are many mansions there will always be scope for the buccanier as well as the bathroom boy solicitors can aspire to to the highest judicial posts qc's as well as judges are chosen by commissions with a strong lay component but the bench itself is no longer the inevitable culmination of a successful career at the bar the charms of college or boardroom a preference advocacy over adjudication and the growing gulf between the income of a fashionable silk and even the law chief justice has ensured that by no means all who could be on the high court bench are or increasingly will be modern technology has transformed the operation of the law video conferencing has become common courts can accommodate simultaneous display of evidence on screen submissions are handed up and judgments handed down on disk research is increasingly done through the electronic database on the worldwide web professor richard suskind has termed the lawyers of the future legal information engineers in court influenced by civilian and transatlantic example written now accompanies oral advocacy skeleton arguments and witness statements have to be provided judges are expected to read them in advance and some indeed do they have become case managers controlling the timing and pace of litigation conscious of the need to meet targets and to cut costs barisas can be sued for negligence and even exposed to wasted costs order they're obliged to carry insurance but can enter into contracts provide legal services to their professional clients adjudication has been in part privatised with mediation and other forms of adr supplementing more conventional arbitration there's a community legal service and a criminal defense service a system of state defenders to complement the crown prosecution service old style conventional legal aid for civil work been swept away it no longer exists for personal injuries claims or most damages actions and the legal services commission enters into franchise contracts with vetted practitioners to provide services conditional fees are now allowed to support privately funded litigation it is closing time in the gardens of the east Malaysia ceased to be an area where English still can appear Singapore almost so and even in Hong Kong the bar council operates a justifiable protectionist policy Strasberg and Luxembourg provided new forer to replace the old in civilian terms doctrine as well as jurisprudence can be relied on in litigation and living academics can collect the number of their citations and judgments as well as in the footnotes of prestigious journals comparative law has infiltrated forensic argument as Tom Bingham presently noted there is a world out there but has the transformation of the context transformed the context are the values and virtues of the bar what they were can they and should they survive this tsunami of reform tom bingham amplified his much quoted Williams lecture on the rule of law into a slim volume wrote in his chapter on a fair trial scarcely less important than an independent judiciary is an independent legal profession fearless in the representation of those who cannot represent themselves however unpopular or distasteful their case may be in that single sentence are identified three elements crucial to the bars ethos availability of fearlessness and independence but the greatest of these is independence it's the availability as much the quality of representation which is the guarantee provided by the bar under the so-called cab rank rule any barrister not otherwise engaged or conflicted out and competent in the relevant area of law must appear for any client willing and able to pray an appropriate fee even if he disapproves of the client's character or cause it was said in one analysis of legal ethics to be to barristers what the hippocratic oath is to doctors and in Arthur Hall and Simmons the law lords variously described as the valuable professional rule or ethic a long and honorable tradition and as a fundamental and essential part of a liberal legal system in the same case various rationales were supplied the rule ensures that no one is left without representation even the most unpopular and antisocial it protects barristers against being criticised for giving their services to a client with a bad reputation it negates the identification of the advocate with the cause of his client and therefore assists to providing with protection against governmental or popular victimization some of elsewhere pitched its justification high urskine defended his own defense of thomas pay pay in author of the rights of man with the words from the moment that any advocate can be permitted to say that he will or will not stand between the crown and the subject from that moment the liberties of england are at an end some have pitched it low jeffrey robertson qc wrote it reduces the amount of excrement through the letterbox yet the virtues of cabrack rule are not always recognised outside the profession the abolitionist brandel sharp prime mover in summer sets case when lord mansfield famously determined that slavery was unlawful in england criticised dunning council the slave owner who'd represented a slave in an earlier case for his forensic vault first recording his disapproval of an abominable and insufferable practice in lawyers to undertake cases diametrically opposed to their own declared opinions of law and common justice and when i appeared before the committee of privileges in a vain effort to postpone the ejection of the hereditary appears from the house of lord margaret jay that then leader of the house came up to me the moses room shortly before the hearing and expressed her surprise at my appearance as she phrased it on that side and yet when some years later in an article in the spectator i suggested that retired members of the university who lived in oxford had no more obvious right to vote on university affairs and the hereditary appears to participate in the deliberations on upper house lord trefgan one of my sometime clients wrote a letter complaining that my views seemed inconsistent with my representation of the hereditary interests in the early litigation others have suggested that the rule is more mantra than mandate lord stainon of the hall said its impact on the administrative justice not great in real life a barrister has a clerk whose enthusiasm for unwanted breeze may not be great and he's free to raise the fee within limits yet the menace if any comes less from avarice than from ideology in setting up chambers in lambeth as a barrister's cooperative where profit was not the prime mover lord jafford hereditary pair pier and swaddu song passionate advocate said we let it be known that we would not want to prosecute cases for police nor will be at for landlords against tenants or for employers against employees threatened with disciplinary proceedings by the bar council he ingeniously defended that stance on the basis that his chambers had indicated a preference not imposed a prohibition but even in sets which house the alternative bar or those of avowedly left of centre persuasion there is no reason to believe or any evidence of support that their members could or indeed would purge from themselves what the current chairman has called the dna of the bar as a barrister cannot disdain neither can he prejudge his clients case dr johnson said a lawyer has no business with the justice or injustice the cause which he undertakes unless his client asks his opinion and then he is bound to give it honestly the justice or injustice the cause is to be decided by the judge so does the barrister then in accepting a brief become monocular or may he have a broader vision henry broom to justify his controversial defense of queen caroline proclaimed an advocate by the sacred duty which he owes his client knows in the discharge of that office but one person in the client and none other he must go on reckless of the consequences even if his fate it should are happily be to involve his country in confusion for his clients protection by contrast lord millon a lawn lord commented extracurially in the discharge of his office the advocate has a duty to his client a duty to his opponent a duty to the court a duty to the state and a duty to himself to maintain a perfect point amidst these various and sometimes conflicting claims is no easy feat amongst that quintet of perceived obligations only a pair may command general agreement the duty to the court and the duty to the client the former wrongly omitted from broom's catalogue of one as is recorded in the gospel according to st matthew no man may serve two masters but a barrister must he owes as lord hoffman put it a divided loyalty for the duty to the client is subordinate to the advocate's principal duty lord denning gave a classic enunciation of that duties pith and purpose he said of the barrister he has a duty to the court which is paramount it is mistake to suppose that he is the mouth piece of his client to say what he wants or his tool to do what he directs he is none of these things he owes allegiance to a higher cause it is the cause of truth and justice the practical effects of this duty now enshrined in statute of many and illuminated by wealth of judicial dictum an advocate may not deceive or knowingly mislead the court nor allow the judge to take what he knows to be a bad point in his clients favor he must bring to the attention of the court all relevant decisions and legislative provisions of which he's aware even those that are adverse to his argument he must conduct the proceedings economically and not waste time on irrelevancies even if the client thinks they are important notwithstanding as chief justice of Australia Anthony Mason graphically described the client may wish to chase every rabbit down every burrow still less may he take false points however much his client may insist he should do so he must help the court to further the overriding object to the civil procedure rules he must not set his name to a plea which he does not consider to be properly arguable he must not unjustly make a charge of fraud without evidence supported he must see that his client discloses relevant documents even those that may be fatal to his case these principles apply to barristers in criminal as well as in civil proceedings prosecuting council play an important public role in promotion open and fair criminal justice system so the bar council prescribes prosecuting council should not attempt to contain and conviction by all means at his command although mervyn griffith jones qualified this by warning middle temple students in 1973 don't act a second defending council that some young men think seem to think they should do in order to be fair when 12 years earlier prosecuting penguin books the publishers of lady chathly's lovers crown council he lost the jury's sympathy in his opening speech by asking them whether it was a book that a jury man would like his wife or his servants i stress the plural to read he was presumably not anticipating his own later advice while the defense lawyers rolling criminal proceedings essentially partisan he is still required to place the interest of justice first if his client confesses his guilt prior to trial he's limited to testing the strength of prosecution case he must not set up an affirmative case inconsistent with that confession nor call evidence in support of an alibi or otherwise which he knows to be untrue subject to that provisor as again the bar council prescribes it is the duty of council when defending an accused on a criminal charge to present to the court fearlessly and without regard to his personal interests council may be partially consoled by the obitudictum of more justice james in crown and mcfaddon forensic techniques may vary from time to time but it is still possible to point to success at the bar based upon a reputation for courage in standing up to a judge when occasion demands it is however worth pausing for amendment to reflect upon the significance of this unusual constraint to imagine his impact if it were transposed mutates new tandies as we were once permitted but no longer to say in submissions to the court to other arenas we are a mere fortnight away from a general election in which politicians appeal to the verdict to the people who gave what might reason to describe as a reserved judgment indeed a split decision during the campaign and I make no partisan point there was a wealth of examples in the language of old flesh and pleading too numerous to specify of suppressio various economy with the truth if not a suggestio ffalsai imagine for a moment how the democratic process would be transformed and improved if politicians were under a duty not to deform statistics or to make full and frank disclosure material say relating to the national day imagine for a moment if cricket has walked football is refrain from diving rugby players from committing that contradiction in terms of professional foul or team managers in any game from berating match officials how that too would purify the culture of sport that barrister operate in this unusual ways not a testament of course to their inherent morality they are cut from the same crooked timber of humanity as all of us but as with a cab rank rule the duty to the court the second pillar of the bars wisdom is something rare and precious to be preserved and protected in my view the duty to the court deeply embedded in the english common law tradition no more acts as an undesirable restraint on the barrister's freedom of action than do the queensbury rules on professional pugilists indeed as the same chief justice australia said it fortifies him in the exercise of an independent discretion or judgment in the conduct and management of a case how far then should the barrister himself fortify these structures of independence should a barrister be a cause lawyer or a case lawyer autobiographies with titles such as memoirs of a radical advocate or even the passionate advocate more intriguing perhaps even than 72 years at the bar are recent accounts of the careers of advocates without violating the cab rank rule where on their sleeve not only their hearts but their mind why do i prefer an alternative style in which the barrister's views are as private as his vote even accepting the price to be paid in erosion of civic commitment and even of moral sensibility there are two reasons one is actuality and the other is appearance the function of the advocate is to give advice and then conduct a case with attachment he's only passion being for success on the behalf of his club ideological or emotional involvement in an outcome seems to me to risk infection of analysis and presentation i'm very conscious that when i'm on the side of the case i prefer i have to guard against an excess of the adrenaline not an exogenous prohibited substance which is essential for the most effective advocacy in 1976 i appeared an unsuccessful effort to reserve st marily bone grammar school the last of its kind in london lord denning in one of his most elegiac passages was able to indicate how he would have wished to decide the case many will grieve he said when that which was great is passed away but so it must be i grieve two but necessarily in silent more recently i fear that my skepticism about the strazburg inspired rule that united kingdom cannot deport individuals proven to be a threat to its own national security to their country of origin because of concerns about the risk of the treatment they would there receive may despite my best endeavors have percolated into my submissions before the house of law lord hope fell constrained to address full frontally the arguments surely the sooner they are got rid of the better on their own heads be it if their extremist views exposed the risk of ill-treat but when they got home and administered what touchstone called the reproof valiant that however is not the way the rule of law works the lesson of history is that by depriving people of its protection because of their beliefs and behavior however obnoxious leads the disintegration of society clients be they prisoners parents or public authorities may welcome the barrister's sympathy as well as his skill but they are best served if they enjoy without any sacrifice of courtesy on the barrister's part only the latter the case he advances after all is his clients not his own that is why the advocate formally abstains from any expression of belief and deploys the neutral concept of submission but how he advances the case must be the product of his own best dispassionate judgment as that can well in his diaries records of jonathan's assumption briefed in the hutten inquiry he was absolutely clear that he was not taking something out of the diaries just because the prime minister would do and concluded what i admired about assumption most was he didn't seem to care what the press or public were thinking about this was totally focused on the judge in circumstance of far less gravity i once had myself to tell my instructor solicitor that my clan could promote his case with max clifford or with michael belloff but not with both and after in wensbury term taking all material consideration to account the barrister must as frank sinatra would have recommended do it his way it is of course difficult for emotions to become engaged in a question of construction of an arcane provision of the haig visby rules or even the obscure outer boundaries of the volatile law of negligence but it's the development of public law and it's a planting of private law as the most important element in the appellate judication and the concurrent migration of political issues and legislative courts which expose the advocate more readily to the temptations of partisanship and more importantly to the perception of it in his foreword to a leading commentary on human rights practice lord phillips previous holder of the triple crown of master rose lord chief justice and senior law lord and who is now to mix the sporting metaphor achieved the grand slam by becoming the first president supreme court reminisced when i practice the bar the staple dire to the house of laws consistent of civil law and tax appeals judicial review was in its infancy how things have changed baron as hail and we her colleagues devote the majority of our energies to public law in this new environment i am particularly uncomfortable with the two ready association of the barrister with his clients case in the highly sensitive and increasing complex field of immigration law in which in my far off days a junior use regular practice i noted the significant attachment of clients that lawyers of their own ethnic background not always the advanced their claim sometimes because they're chosen champion had an advocate mind of the language in which the court had to be addressed i'm uncomfortable too with the converse position when women advocates are instructed event men on trial for rape not on account of their forensic abilities but on the crude calculation that jurors will be be guided to thinking that no woman could defend someone who'd committed an act of violence against member of her own sex i do not believe that baristers of known left-wing sympathies are necessarily best place to defend striking trade unionists or those of published publicized europhobic tendencies to represent ukip a barrister who can appear at different times the bnp and the socialist workers league is not the forensic equivalent of a vicar of bray but an adherence to the true professional faith it's a specially unwise to adopt a mindset that virtue can only repose on the claimant side it's not only the advocates for claimants but those are respondents too who are responsible for assisting in the construction or clarification the law baristers after all do not make law they supply from either side of the court the material from which the judges can fulfill their own distinctive role in an essay entitled early days law justice saidly reminisces about his triumphs and disasters as a novice barrister present at the creation of modern judicial review it is an exhilarating and entertaining account of his role in seminal cases involving gypsies low income tenants immigrants and prisoners in some of those i was myself involved in the self same case about control units the product of a home office philosophy which was tough on crime if not necessarily on its cause being led by steven at first instance and leading him in the course of appeal the result of an idiosyncratic silk selection by the then lord chancellor lord helsham it never occurred to me that i was or could fought me advent on advancing some radical political agenda i was simply doing my daily job lesser advocates and steven can if they always appear on the same side of the argument cause confusion in the minds of those who try the case between the client and his advocate for the detriment of the former it is surely axiomatic that embarrasses arguments whether mediated through advice or advocacy will be given greater weight and respect if he is recognised by any test to be truly independent the recent case of mcfarlman relate avon limited provides a much publicized example of what i have in mind a psychosexual therapist failed in his claim for religious discrimination against his employer who'd refused to exempt him from providing his services to same sex couples he was supported by lord care of the former archbishop of canterbury who in a witness statement invited the lord chief justice to establish a panel of judges designated to hear cases involving religious rights the appellant's advocate has a unique expertise in such cases but as his website and record shows is as well a crusader for evangelical religious values a council not only more detached but seemed to be more detached than the principle he was contending for that of allowing religious belief to qualify in some way the reduces of anti-discrimination law might have adopted a more nuanced approach which has fueled the gratuitous and doomed plea for specialist non secular court trenchantly dismissed by more justice laws as deeply inimical to the public interest those who cannot appreciate that there may be two sides to a question on not best place to argue in favour of one criminal law is not immune to this problem members of the crown prosecution service originally created so as to separate the functions of police and prosecutor have started to colonize frontline advocacy with a consequent risk that his employees of a public authority they will become prosecution minded and seem to be so the error is long since gone when it was possible to combine at one and the same time a full time perhaps the bar with an active political career but if he's smith a paradigm example of someone who essentially ago was able to do both understood well the matters of state when criticised by his fellow conservatives for representing the liberal Herbert Samuel in the Marconi trial he wrote the times political issues constantly present themselves the decision of the law courts in the overwhelming majority of cases jurors have done their duty in differently between the parties treating their own views upon politics as immaterial how long do you think this stage of things will endure if every conservative case is to be presented by conservative advocates and resisted by liberal advocates the law officers face peculiar challenges the then attorney general was reported the bar council for investigation to the advice to the government on the legality the invasion of iraq misjudged the distinction between his legal and political roles that body in receipt as it turned out of opinions by both Sir David and myself provided in isolation to each other rejected jurisdiction leaving Lord Goldsmiths and no doubt tender immerses of the Chilcot inquiry it seems to me inevitable that the role of the attorney general will have to be deconstructed like that of the Lord Chancellor and for analogous if not identical reasons of disentangling roles seem to be in tension wearing two hats is no less difficult than wearing three but a single item of headgear is more becoming there are institutional as well as ideological pressures on the independence of the bar so Gavin Lightman in a much discussed lecture the civil justice system a legal profession that challenged the head somewhat like a former cabinet minister freed from the burdens of collective responsibility rediscovered the path of true principle for the profession he had left a decade before he excoriated the metamorphosis of the legal professions into legal businesses and the consequent impact on the internal organization the bar the dominant philosophy today amongst many chambers he wrote is to place the highest premium on keeping all available work for clients in house indeed chambers of increasing to become in all but name partnerships between members committed to the pursuants of the best interests of members there is if not a ring at least a tinkle of truth in what he says but what is certain is that the perception the bar from outside has altered a decade ago an issue arose whether a barrister had been appointed an arbitrator by one part to the arbitration should be removed by the court on the ground is another barrister from the same chambers have been instructed in the arbitration mr justice ricks as he then was in rejecting the application emphasised the uniqueness of the bars organization and the fact he provided a structural protection both the interests of the client and the interests of justice it is the essence of practice the bar he wrote as but that's all barristers are self-employed this is not a mere matter of form but several years later an ics id tribunal considering the converse situation that is whether a qc could edit longer act as councillor case where a member of the tribunal was in the same set decided that what mr justice ricks had seen as a matter of substance was or would be seen as a matter of mere form accepting that de ure baristers in the set of chambers were independent of each other the tribunal ruled that they would be seen de facto as having a collective connotation the warning flags are fluttering elsewhere the corbitra arbitration for sport whose adjectival laws are suchly swiss regard in the words of its secretary general the notion of a member of a set of chambers acting as arbitrator when a party is represented by a member of the same set as problematic though i've never in all my time at the bar expected still less received favours from judges whom i know well the problem will be exacerbated if barristers exploit the permission dueling given to work in partnerships or in both self-employed and employed capacity at the same time or to become managers in and hold shares in legal disciplinary practices and the more so if they participate in the alternative business structures contemplated by the same legislation which would allow them to work alongside other legal professionals and non-lawyers a development optimistically described by Lord Fulkner as the legal systems Tesco the influence of outside ownership the promotion of profit over professional standards the commodification of legal issues all threats inherent in these putative entities may yet cause us to mourn the eclipse of one at the same time the neighborhood corner shop and of harrods similar concerns are generated by the serious commercial pressures on substantial sections of the bar within what the chairman of the bar has recently called an increasingly broad church there are in fact many bars those who depend upon public funds in particular in the areas of criminal and family law suffer if not death at least damage by a thousand cuts freeze has been followed by four judicial review of the latest pre-election government agenda decision was briefly on the agenda the outgoing minister for justice retorted by identifying with less than complete accuracy the top legal aid earners for the last year as if the income of the few was characteristic of the income of the many the hourly earnings the majority were in a counter attack described by the chairman of the criminal bar association as less than those of a garage mechanic this led predictably to an amusing if unedifying correspondence and letter columns of the times as to which provided the more valuable social service the real victims of course will be the most vulnerable members of society who are not a hastened where the barristers themselves to whom the barristers distracted by wish in no way dishonorable to receive a reasonable income for demanding work will be increasingly inhibited in their ability to provide proper representation and may even be compelled to avail themselves the exit route permitted by the cab route itself the palliative of conditional fee agreements shifting the burden of financing and many types of litigation from state to persons natural or legal and now available in all except criminal and specified family proceeding confers on barristers so Gavin Lightman pointed out a financial interest in the outcome of litigation in which they are engaged which is calculated to create unacceptable conflicts of interest and duty and creates unacceptable pressures to win in this uncertain financial climate baronist each the chairman of the bar standards board has said we have to negotiate a path between the seller of fusion and the caribbys of attrition of a bar in identifying the parents on that path i've sought tonight to make a summary case for the survival of a professional independent in mind spirit and appearance and a member of a profession itself independent they're not unaccountable capable and called upon of defending individual rights against the power of an ever burgeoning state and its sundry satrapies but equally representing the state when it seeks to enforce the public interest against those who act in a way inimical to it in a surface sense everything has changed in a subterranean one nothing has or should the environment in which the bar operates at any one time may be a feelable but its values must be eternal in his book the end of lawyers richard suskind explains albeit in a footnote i reiterate the question mark in the title is intended to confirm that this book is an inquiry into whether lawyers have a future rather than prediction of their demise and equally mercifully while prophesying that lawyers who are unwilling to change their working practices and extend their range of services will in the coming decades struggle survive adds dispute avoidance and online dispute resolution will chip away at some of this domain but i do not seize these as eliminating advocacy entirely so i end by considering the moral issue created by the art of advocacy itself a recent consultation paper by the trio rigor trio of legal regulators described advocacy as a fundamental pillar of the justice system as certainly it is due to my national perspective lord hoffman noted in the judgment the substantial orality of the english system of trial and appellate procedure means that the judges rely heavily upon the advocates appearing before them for a fair presentation of facts and adequate instruction the law is regarded as aximatic that the services of a professional advocate are beneficial whether of cicero the hero robert harris's projected trilogy a william murray later lord mansfield whom alexander pope hyn raised as thou art with all the power of words so known so honored in the house of lords a couplet which might have required modification had the supreme court been established 300 years ago and which was paraded by the actor collie ciber a victim of murray's eloquence in a style worthy of william mcgonigal persuasion tips his tongue when air he talks and he has chambers in the king's bench walks or of clarence dallow who in the scopes trial proved a more doubty destroyer creationism than even richard dorkin and was memorably played by spencer tracy in the film inherit the wind or of modern giants such as the sydney kentridge or the lake george carmer there's much nice learning on when and whether natural justice requires that barristers use be permitted or required indeed the principle of equality of arms inherent in the right to a fair hearing is guaranteed by article six the european convention and requires that everyone who is a party to proceedings must have a reasonable opportunity to present to me his case of the court under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent but equality of arms does not mandate parity of representation he's been held the fair trial does not necessarily entail representation by qc merely because the crown is represented by one the important said lord wolf and his judgment is to have an advocate whether he'd be embarrassed to all solicitor who can ensure that a defendants defense is properly and adequately placed before the court will up to a point lord wolf for there are but two possibilities either the relative quality of representation has no impact on the outcome or it does the first possibility is at odds with everyday experience in the courts in another context mr just as nagari wisely said everybody who has had anything to do with the law well knows the path of the law is strewn with examples of open and sharp cases which somehow were not it is precisely to alter the odds the particular advocates are selected a senior silk at the top of his game is worth as much to a legal as a runy a rinaldo or a messy is to a football team let me call two witnesses from north and south the equator first again sir gavin lightman who said the quality of solicitors and counsel varies as much as does the quality of wine from unfit to drink to vintage vintage tends to be very expensive beyond the means the ordinary litigant most of us be satisfied with plon cases are one and lost by reason of the quality of representation at the trial and secondly michael curby the peripatetic former anti-peddian high court judge who wrote in a recent article in an adversarial system such as exists in the united kingdom and australia the party that argues most persuasively will often win the day it is not always the case that he who pays wins but it is certainly the case that whereas all varices are equal some are more equal than others jeffrey robertson entitled his interim autobiography the justice game contest between unevenly matched contestants may be permissible in a game but not when justice is the intended trophy belittle consolation to the clients of jerry guirano 20 of whose clients have been sentenced to death in texas but the federal court in houston turning down an appeal based on his incompetence in handling of a case said without conscious irony the constitution does not require perfection in trial representation there may be a hollow in the crown of the adversarial system but how it is to be filled in the real as distinct from the ideal world i confess i do not know but let me not conclude on so dispiriting a note in metcarthon mardell lord hobthouse said the judicial system exists to administer justice and is integral to such a system that provides within the society's mean a means by which rights obligations and liabilities can be recognised and given effect to in accordance with the law and disputes just and justify justly and efficiently resolve the role of the independent advocate is central to achieving this outcome so in a lecture which has inevitably been decked out in borrowed poems i hope i may be forgiven for plagiarising myself with a tail feather they also serve who only stand and speak well it has been adjourned to have drinks and canapes outside my apologies but there's one important part left which is a vote of thanks of professors it is probably appropriate to thank the speaker rather than letting him move to the wine when david williams had to choose the speaker for this lecture knowing that he wasn't going to be here he had one of those difficult tasks i suspect of his life to find someone who could follow from four chief justices following the foot steps finally of the chief justice of the pream cord it was an almost impossible task i think we would disagree that he chosen a veteran jobbing attorney as our speaker described himself tonight rather more accurately as our chair described him someone who was a sheer joy to listen to as well it was someone who would say things that david himself would have said had he still been with us the absolutely central to the justice system is the position of the independent and robustly so bench and bar those of us who are not that actively involved in the the practice of the legal system but take a very active interest in it from the sidelines know that over the last few years it is that independence of bench and bar which has actually protected the civil liberties of the rest of us and i think our speaker tonight has quite rightly drawn attention to it it's something which the cambridge man of some centuries ago was to cook of the larger trinity in oxbridge would have been proud as chief justice he stood up against the king king james it's something of which one of my own heroes the welshman and david's heroes to a welshman so william jones a friend of urskine friend of mansfield a friend of grandville sharp and indeed of others who peppered the lecture this evening so william jones would have gone along with it so william jones was a hero of mine um had another side his character which i know that david approved of it was his love of conviviality and alike he was also a poet something else which david approved of and i just want to end with one line as we thank you indeed picking up on your final remarks a line from one of jones's poems written in the 1780s leave yearbooks and parchment to gray bearded sages he said that's not a direct comment leave yearbooks and parchment to gray bearded sages in pursuit of some more convivial activity uh mr belloff thank you very much indeed for gracing us with your presence tonight thank you for for all of us and i think this comes from the heart of everybody from within cambridge everybody who's a friend of david's thank you for being so true to david's memory thank you