11

the barristerISSN 1468-926X

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Features

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Judicial Diversity – working for change

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Public funding cuts and the future of the junior Bar

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Career limbo for would-be barristers has been opened up with a new route into the legal profession

By patricia mcHale, Senior Lecturer in Law, London metropolitan University

Are You Sick of Diversity?

By caroline Newman LLm,non-practising solicitor and principal consultant at Lawdacity

Language and law: reclaiming the human rights Debate

By Lucy Scott-moncrieff, president, Law Society

There are many truisms about a career in

the law, none more obvious than the fact

that we will all be faced, often on a regular

basis, with competing priorities for our

attention. I know that when I was a partner

in my law firm my professional and family

responsibilities often competed and, without

the support I received from others, juggling

would have been all the tougher. Given

the constraints on my time the question of

whether to become a judge or not was the

last thing on my mind. I remember being

surprised when someone suggested to me

that I should consider becoming a Deputy

District Judge.

Perhaps because

of the situation

at the time it had

never occurred to

me that I would be

suitable. If others

are thinking this

way, then we may

be missing out on

a range of talented

candidates for

April 2013 sees the introduction of some

of the most far reaching changes to the

public funding of Family Law cases in

many years. Among the raft of significant

changes which are due to come into effect

in that month, perhaps the most significant

is that private Children Act cases will no

longer be eligible for public funding at all,

save in cases where there are allegations of

domestic violence.

According to the LSC's own figures, this

is intended to lead to a 75% reduction in

the number of private Children Act cases

funded by the LSC. Further, this significant

reduction in the availability of public

funding is only one facet of the broader

reduction in funding for Family Law cases.

Funding for financial relief and other

miscellaneous Family Law cases is also

being constricted; the LSC has stated that

it envisages its coming reforms to public

funding to lead to an 83% reduction in the

number of financial relief cases it funds,

while overall the LSC has indicated that

it intends its reforms to lead to a general

reduction of 56% in the number

of private Family Law cases which p.10

Helen Grant MPJustice Minister

00 the barrister

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the barrister 03Fighting ghosts: secret justice and the Justice and Security Bill By Kate Allen, Amnesty International UK director

“I always tell my lawyers we’re

fighting ghosts. I gave up. I got tired

of asking ‘show me the evidence’.

I know I have a Special Advocate but I

don’t think the Special Advocate can

make a difference. If you can’t speak

to your Special Advocate and he can’t

speak to you or your legal team how can

he fight a case on your behalf?”

This is how one exasperated man

described the process of trying to

challenge the use of secret evidence in

a “national security” case, including

to justify the imposition of restrictive

immigration bail conditions. The wife

of another man who was similarly

subject to restrictive bail conditions

and deportation procedures on national

security grounds echoed this, saying

“You should be able to see the evidence.

Even our solicitor can’t see it; that is

a nonsense, it’s just ‘secrecy, secrecy,

secrecy’ and if your lawyer asks any

questions they [the government] just say

‘I can’t comment’”.

The government’s use of secret evidence

to deprive or substantially restrict the

liberty of individuals in the UK has

already been a matter of considerable

concern to human rights groups and

legal practitioners for well over a decade.

In particular, the process known as a

“closed material procedure”, introduced

more than 15 years ago in the wake of

Chahal v UK (a 1996 European Court

of Human Rights case concerning the

deportation of a foreign national) has

been highly contentious.

“Closed material” is information that the

government claims would be damaging

to national security or otherwise harmful

to the public interest if it were to be

disclosed. This material is withheld for

the entire case (and indeed perhaps

forever) from the individual/s whose

interests are at stake in the case, from

their lawyer, and from the media and

wider public, none of whom has access

to the closed part of the case. With the

extension of closed material procedures

to the ordinary civil system this could

mean that a survivor of torture suing

for damages against a government

department might not be allowed to

know the content of such material,

even though the court can rely on it to

determine the facts and outcome of their

case.

In supposed mitigation of the unfairness

of the procedure, the government

has introduced “Special Advocates”

(security-cleared lawyers). These are

appointed to (try to) represent the

interests of individuals involved in

the closed part of the hearing. Special

advocates are able to review secret

evidence but are forbidden from actually

communicating, except in very limited

and narrow circumstances, with the

individual concerned or their legal team,

and they are prohibited from discussing

any part of the secret evidence with

them.

Meanwhile, the representing lawyer

is left largely in the dark. Dinah Rose

QC, who has acted in several such

cases, says: “It is impossible for me to

adequately convey the frustration and

helplessness felt by a barrister seeking

to represent a client when a closed

material procedure applies. I have

sought to do it in control order and SIAC

cases on many occasions. Most of your

time is spent outside court, waiting to

be allowed back in. When you are able

to cross examine, you have no idea

whether the questions you are asking

are pertinent, or unhelpful. You do not

know whether your submissions are on

point, or wholly irrelevant. Representing

a client in these circumstances has been

described as like taking blind shots in

the dark at a hidden target.”

A report from Amnesty International

last year charted the troubling

expansion of closed material procedures

into the UK legal system in recent

years. At the last count there were

already 21 different legal contexts

where the government can potentially

rely on evidence that may remain

undisclosed to an opposing lawyer and

to his or her client. With the Justice

and Security Bill, the government

is seeking to expand closed material

procedures into civil cases where these

are said to involve matters of national

security. It means that where plaintiffs

seek damages against the government

over a government official’s alleged

involvement in - for example - their

kidnap (“rendition”), illegal detention

or even torture, the government may be

able to rely on secret evidence that the

individual, their lawyer and the public

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04 the barrister

will never see.

A key government claim in support of

the Bill has been to maintain that cases

will not otherwise be able to proceed

because of the risk of revealing sensitive

material or working methods. The

former Justice Secretary (now Minister

without Portfolio) Ken Clarke has

argued that a closed material procedure

is a sort of “flexibility” option, necessary

to prevent either dangerous over-

disclosure, cases being struck out or the

forced settlement by the government

of cases it could, it implies, otherwise

have fought successfully. Mr Clarke has

said that presently “judges cannot hear

evidence gathered by spies, even when

it is absolutely central to the case”.

“There is no option”, he claims, “but

for this material to be excluded entirely

from the courtroom”.

In truth this is greatly overstated. Indeed

there are several existing “options”.

In the past we have seen cases where

parts of a case were held in camera,

where confidentiality agreements were

enforced, where access to some part

of the proceedings was restricted for

the media, where witnesses’ identities

were protected, where redactions were

employed, and so on. In many ways, this

is just normal legal practice.

Instead, government ministers have

ignored these perfectly reasonable

solutions (and numerous other

objections to the Bill) and, apparently

heedless of measured criticism and

indeed longstanding legal principles,

have played to the gallery with a series

of misleading claims. For example, Mr

Clarke has spoken of “understandable

public outrage” over the government’s

settling of the case brought by several

former Guantanamo detainees against

various government departments

(Al Rawi v Security Service) in

November 2010. Yet the government’s

determination to keep the case secret

at all costs appears to be the reason

the case was settled. Earlier in the case

the government had fought to introduce

unprecedented secrecy - in the form of a

closed material procedure - into a civil

trial case, despite this being done in the

absence of existing statutory authority.

At the Court of Appeal (Civil Division),

Lord Neuberger (then Master of the

Rolls) firmly resisted this, observing that

“it is not open to a court in England and

Wales, in the absence of statutory power

… to order a closed material procedure

in relation to the trial of an ordinary civil

claim, such as a claim for damages for

tort or breach of statutory duty.” With

this route to secrecy looking likely to be

closed off, the government first settled

the Al Rawi case (without waiting for the

Supreme Court to rule on the issue and

prior to completing the Public Interest

Immunity process to determine how

much material could be disclosed in the

case) and quickly doubled back to try to

introduce the statutory power that would

offer to entrench secrecy into future civil

proceedings. Mr Clarke’s outrage was

misplaced; indeed the outrage should

properly be ours, not the Secretary of

State’s.

Tim Otty QC, one of the lead counsel

in Al Rawi v Security Service, has

written witheringly about the Bill’s

unprincipled unfairness, its patent

impracticality, and in particular of

how we should be extremely wary of

accepting the government argument

that the intelligence services require

this legislation if they are to function

efficiently. The latter point is worth

emphasising. We are essentially being

asked to take on trust a claim that a

government agency already implicated

in wrongdoing requires laws to enable

it to continue to operate - out of sight of

full judicial or public scrutiny. It is also

worth adding that were it not for the UK

authorities’ years-long failure to provide

for any remedy (including an effective

independent investigation) in the case

of several former detainees, then these

same individuals may not have been

forced themselves to take cases against

government departments.

When politicians invoke “national

security” and the need to “safeguard”

the work of those in the intelligence

services, that does not give them carte

blanche to push through illiberal and

dangerous legislation. Ken Clarke talks

of devising a system that “protect[s]

the secrets of our intelligence services

from public scrutiny but make[s] sure

that they remain accountable to the

law, to Parliament and to the public”.

Yet the Justice and Security Bill looks

set to throw a cloak of secrecy over

behaviour that should be brought to

wider attention, indeed in some cases

behaviour potentially deserving of

further investigation by the police and

other authorities.

When the Green Paper for the Justice

and Security Bill was published in

October 2011 Amnesty described the

Bill as intending to make “drastic

changes to the justice system”, while

worrying that the government had a

closed mind on the subject and would

listen to little of the arguments against

the measures. Time seems to have

proven us right. Ploughing on in the face

of considerable opposition, trying to

reverse numerous ameliorative (though

still only peripheral) amendments

introduced by the House of Lords, the

government has appeared determined

to depart radically and dangerously

from the normal principles of fairness

that currently apply in civil trials cases.

Richard Hermer, another barrister who

has experienced the difficulties thrown

up by closed material procedures in

SIAC cases, has described it as “the

most Kafkaesque court environment I

have ever been in or would want to be

in”. Similarly, Amnesty has described

the overall effect as being “a secret

justice system straight from the pages of

a Kafka novel”.

To quote Lord Neuberger again, now

speaking as President of the Supreme

Court, “a reasoned Judgment is a well-

established ‘function of due process,

and therefore of justice’”. In other words

it is intrinsic to a fair trial. “A clearly

reasoned Judgment”, says Neuberger,

“enables the litigants to understand why

the court arrived at its decision”, and

“a clearly reasoned Judgment enables

the public to understand the law and to

see what is being done and said by the

judges in the courts, to see how justice

is being dispensed.” In the Kafkaesque

world of the Justice and Security Bill,

judgments are potentially closed or

based on evidence never disclosed to

those it most affects. Instead of open

justice we are nearer to the famous

parable in The Trial, where a man from

the country is forever excluded from

justice by a fierce doorkeeper guarding

law’s portal. If instead of accessing

justice you’re reduced to fighting ghosts,

then something has gone badly wrong

with the law. Secret justice is no justice

at all.

Rose - http://www.reprieve.org.uk/media/downloads/Atkin_Memorial_Lecture_Final_version.pdf

Amnesty report – http://www.amnesty.org/en/library/asset/EUR45/014/2012/

e n / 5 4 6 a 2 0 5 9 - d b 8 3 - 4 8 8 8 - 9 3 b a -8b90cc32a2de/eur450142012en.pdf

J&S Bill – http://services.parliament.uk/bills/2012-13/justiceandsecurity.html

Clarke - http://www.dailymail.co.uk/news/article-2151486/Ken-Clarke-My-secret-justice-plans-broad-Mail-public-service-fighting-them.html?ito=feeds-newsxml#axzz2K3k6k5Ei

Neuberger C/App - http://www.reprieve.org.uk/static/downloads/Microsoft_Word_-_Al_Rawi_v_Security_Service-_Final.pdf

Otty - http://www.opendemocracy.net/ourkingdom/tim-otty/slow-creep-of-complacency-and-soul-of-english-justice

Amnesty Kafka - http://www.a m n e s t y. o r g . u k / n e w s _ d e t a i l s .asp?NewsID=20601

Neuberger Sup Ct - http://www.s u p r e m e c o u r t . g o v . u k / d o c s /speech-121120.pdf

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05the barrister

06 the barrister

judicial office.

Achieving a more diverse

judiciary is something that I am

committed to - both personally and in

my roles as Justice Minister and Minister

for Women and Equalities. Our judiciary

is rightly world renowned: respected

for their professional expertise and

their independence. But the reputation

of our judges should not distract us

from the fact that the diversity of our

judiciary, while improving, is still a

long way from reflecting the make up

of society. Of course, our judges must

always be appointed on merit – but

the judiciary play such a vital role in

the administration of justice that it is

essential they are representative of the

people and society they are serving.

I believe that more diversity among

our judges will not only increase

public confidence in the judiciary and

the justice system as a whole, but

will also provide visible role models

from different backgrounds for those

aspiring towards the legal profession

and eventual judicial office.

The profile of the legal profession –

the judges of the future - is, albeit

slowly, evolving into a more diverse

and representative one. It is also

encouraging to note that more women

are being recommended across all

levels of the judiciary, and candidates

from Black, Asian and Minority Ethnic

backgrounds are performing well in

entry-level competitions. However,

change is not happening quickly enough.

Still only 22.6 per cent of our judiciary

sitting in the courts are women and of

those who stated their ethnicity, only

5.2 per cent are from a Black, Asian

or Minority Ethnic background. These

figures are even starker when we focus

only on the senior levels of the judiciary.

This just isn’t good enough.

During my years as a practising

solicitor, a judicial career wasn’t seen

as being open to everyone. The ‘tap

on the shoulder’ approach, where it

was who you knew and not what you

knew, still held sway. I don’t recall

opportunities being widely promoted

and there was a distinct lack of support

and information available to those

who might have considered applying.

Thankfully, we have come some way

since then, but there is still more that we

could be doing to promote opportunities

more widely and provide support and

encouragement to eligible candidates

from under-represented groups.

We also need to think about how we

get diverse candidates to consider a

legal career as an option in the first

place. The Government is playing its

part in this, as are the judiciary, the

Judicial Appointments Commission, The

Law Society and the Bar Council. The

Commission has recently updated their

research on the perceived barriers to

applying for judicial office, which sought

the views from a range of contributors.

This report, when published, will help

shape the work that all of us involved

in the process take forward over the

coming years.

The Bar Council runs an annual social

mobility Bar Placement Scheme, which

introduces sixth form students to life at

the Bar, and also works with schools

to encourage able students to consider

a career at the Bar. The Bar Council’s

Equality and Diversity Committee

in partnership with the Commission

now runs outreach events aimed at

practising lawyers, where they provide

information about the requirements

of judicial office, and where you can

get advice and guidance about the

appointments process. These events

present a fantastic opportunity to dispel

those myths about judicial appointments

and what a career in the judiciary might

be like. I think it is important to have a

realistic view of the demands of judicial

office before applying, to make sure you

have the right skills and experience to

warrant selection.

The Government is making some

important changes to the appointments

process and to the way in which judges

can work to try to encourage more

people from diverse backgrounds to

apply for office. Through the Crime

and Courts Bill, we are enabling judges

to work part-time in the High Court

and above, a principle that is already

established in the lower courts, so that

those with responsibilities outside of

work still have the opportunity to take

up a judicial post. As a working mother,

I appreciate the strain that those with

caring responsibilities can be under,

and I think offering this flexibility and

prospect of a better work-life balance

could make talented individuals

who have rejected a judicial career

reconsider.

I cannot emphasise enough that none of

these changes will alter the fundamental

principle that judges must always be

appointed on merit. But, such is the

importance of increasing diversity to

public confidence in the criminal justice

system, where there are two candidates

who are completely indistinguishable on

merit, selection panels will be allowed

p.1

to consider diversity when making a

final decision.

The composition of selection panels for

senior judges is changing, which will

bring a more diverse group to the process

of judicial selection, representing a

wider range of experience and views.

The Lord Chancellor and Lord Chief

Justice will in the future be under a

duty to promote judicial diversity, which

will provide a strong signal that the

Government and the judiciary are taking

this issue seriously and are committed

to providing leadership.

There is clearly a lot of valuable

work being done, but this must be a

collaborative effort and I would ask

you to help where you can. We must all

be proactive in setting out the career

opportunities for talented individuals

from under-represented groups and

encouraging them to apply for judicial

office. So if you know a talented colleague

who you think might be suitable, then

encourage them to apply. Perhaps, as

was certainly my experience, they may

have just never considered it as an

option. A little honest encouragement

may be all that they need.

For individuals considering a judicial

career, think about whether now would

be the right time to apply. Make the

most of the information and outreach

events provided by the Bar Council, and

consider talking to designated contacts

to discuss your thoughts and their

experiences.

Achieving greater judicial diversity is

not only a priority for me but something

I care deeply about. Some say it is

just a matter of time; that increasing

diversity in the legal professions will

eventually create a ‘trickle up’ effect

into the judiciary. But to me it isn’t good

enough to just sit and wait. We need to

take more action now. I am confident

that with commitment from the legal

professions, and strong leadership from

the Government and the judiciary, the

meaningful action we are all taking

could lead to real and visible change.

Helen Grant MP, Justice Minister

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07the barrister

08 the barrister

This year I spent 2

months in Australia

arriving just as the

terms of reference for

a Royal Commission

into institutional

responses to child sexual abuse were

published. Ironically, the terms were

published on the same day as the report

in to abuse by the late DJ Jimmy Savile

and in the same week as a study by

the UK Ministry of Justice, Home Office

and Office for National Statistics found

that in the UK up to 500,000 people

are victims of sex crimes every year.

The statistics are awful but, the sad

truth is there is no rape epidemic; it’s

just that finally rape has become big

news. Rape is endemic across the world

and has been for generations. It occurs

in homes, in institutions, in the street

and is a war crime. Ask any criminal

barrister and they’ll tell you that the

Criminal Courts are full of serious cases

of rape, abuse and sexual violence but

for years the public gallery has been

empty. Ironically, the glut of cases is the

inevitable consequence of improvements

in data collection and in prosecuting

offences. As counsel, we deal with

matters that should have been tried

decades ago but people were inhibited

or prevented from complaining. It is

the secrecy of abuse that allows it to

perpetuate. The public may not like

it but my prediction for 2013 is that

they will hear a lot more about abuse

and that knowledge should inevitably

inform their day to day conduct. “Dirty

old men” and abusive women will be

exposed far more than they ever were

in the past.

Launching the terms of the Royal

Commission in Australia, Justice

Peter McClellan AM said “The Royal

Commission has been charged

with examining the sexual abuse of

children in the context of institutions

throughout Australia. Having regard

to what is already publicly known of

these problems the task before the

Commission is large. However, until the

Commission has commenced its work

and people come forward to give us an

account of their personal circumstances

we cannot gauge the full extent of that

task”. He said that six commissioners

would “endeavour to gain a complete

understanding of the problems in

various parts of Australia in the most

efficient manner possible…... our task is

complex and will take significant time”.

It is an interesting evidence gathering

process: Vulnerable witnesses will need

to be accommodated, the Commission

has powers to compel the production

of evidence, including documents, and

Justice McLellan indicated that the

commission will expect “all institutions

that may have entered into confidential

agreements with individuals will

cooperate with the Commission in

relation to the disclosure of those

matters”. This will place a heavy burden

on church and teaching organizations

who may have dealt with abuse “in

house” in the past.

The Commission is not a prosecuting

body but it “will establish links with

the appropriate authorities in each

State and Territory to whom a matter

may be referred with the expectation

that where appropriate prosecutorial

proceedings may commence”. To

encourage victims to come forward,

some parts of the proceedings will take

place in private, with restrictions on

naming individuals and on reporting.

However, public understanding of what

has gone on is a “fundamental objective”

of the Commission so it is likely that,

where possible proceedings will be in

public. My view is that, subject to the

appropriate funding and providing it

is made clear that the process is to

improve things for the future not to

get bogged down in the past, this is a

process that would be worth mirroring

across the world.

Men like Jimmy Savile offended with

impunity. Priests and other professionals

systematically abused children.

Witnesses who must have been aware

of what was going on did nothing and

now seek to blame the system and the

system has a lot to answer for. Early in

the Operation Yewtree investigation, I

wrote in the Times: “Those who failed

to act will have to live with themselves

forever but arguably the courts and

the justice system were not to blame.

Parliament made the laws that so

failed to protect young women and

those laws were debated by men who

mixed with the likes of Jimmy Savile.

Parents, friends and colleagues passed

by inappropriate conduct and failed to

act. The courts can only sort out the

philanderers from the paedophiles if

given the opportunity”. It now seems

that some people did complain to

the authorities but a prosecution of

Savile was not pursued. There must

have been failures at every level, long

before any criminal proceedings were

contemplated.

Not everyone is a rapist and it is

important that evidence collected

is reliable and the right suspects are

Rape stats, Savile and a Royal Commission By Felicity Gerry QC, 36 Bedford Row

identified. It is just as bad to be falsely

accused of sexual abuse as to be a victim

of it. Nevertheless, it is equally important

that the law reacts to any findings by an

inquiry. Law makers across the world

have taken a long time to react to sexual

offending. In England and Wales, for

many years, the maximum sentence for

indecently assaulting a female child was

2 years, unlawful sexual intercourse

was time barred after a year and the

idea that a man could rape his wife

without sanction remained good law

until as recently as 1991. The weak laws

effectively allowed sexual offences to be

committed behind closed doors with

no proper police intervention. Much of

the old law and sentencing has now

changed. For example, on the 24th of

October 1991, The Times front page

read: "Wave of prosecutions will follow"

as five law lords unanimously swept

away the principle established by Chief

Justice Hale in 1736 that by marriage, a

woman gave her body and irrevocable

consent to sexual intercourse with her

husband in all circumstances. Lord

Keith of Kinkel said that the principle

was “anachronistic and offensive” and

that the common law could change in

the light of social, economic and cultural

developments. Lord Lane declared

that "a rapist remains a rapist and is

subject to the criminal law, irrespective

of his relationship with his victim ".

According to The Times report at the

time; “the ruling caused uproar in the

public gallery, and cheering supporters

of Women Against Rape were evicted....

its spokeswoman, Claire Glasman said:

"This is a fantastic day for women

everywhere. The law lords have finally

nailed a legal lie which has somehow

survived for nearly three centuries. This

is really a step towards making it clear

legally that women have the right to say

'no' to sex, even if they are married.

It overturns 250 years of legal sexual

slavery based not on a court case but

on a 18th century judge's decision that

a husband could not rape his wife."

Times have definitely changed and the

process of improving the law to provide

protection for individuals is not over.

The importance of the Savile

investigation and the Australian

Royal Commission is not findings

that that individual prosecutors were

“unjustifiably cautious” or that Church

confessions were kept secret in the past

but to learn from those past mistakes in

order to inform future cases. Statistics

on child abuse are not an exact science

as abuse takes so many forms ranging

from grooming to violence. A Royal

Commission is a useful process to collect

information. The truth is that, although

there were complaints against Savile

that were not properly followed up,

there were nothing like the complaints

that have been made since his death.

Suddenly people are complaining and

the good news is that they are being

heard. Ironically, like most criminal

barristers, I have been listening to

these people in court for years – the

prostitute violently raped by her pimp,

the step daughter systemically abused

by her step father, the young boy abused

by his care worker and the school

children whose headmaster admitted

in evidence that he had a fetish for

little girls’ knickers. All of these are real

cases. All resulted in convictions and

long sentences. Often the evidence is

historic, sometimes it is more recent. It

is common for complaints to be delayed

through fear, trauma and just an old

fashioned belief that victims will be

ignored. There are some fabulous police

officers out there who really try to make

sure that their cases are prosecuted,

there are lawyers who take a chance

on flaky evidence from a vulnerable

witness and there are advocates who

give their all in court to try to make

sure such cases are properly and fairly

tried. Jimmy Savile would have had

a complete defence under the old UK

law to some of the allegations against

him. He knew it and had a “policy” to

react to any allegation that kept him

from a robust prosecution. In the UK

the law has been much improved and

in Australia, by launching the Royal

Commission, the Prime Minster, Julia

Gillard has given victims an opportunity

to be heard.

The high profile cases are the tip of an

enormous problem that will place great

strain on any criminal justice system in

any part of the world but it is important

that men, women and children can go

about their lives with as much safety

as possible and that sex offenders are

identified and locked away, whether

they are celebrities or not. We can learn

lessons from the dead suspects but it’s

the live ones we need to catch and

collecting evidence, information and

data is a good place to start1.

Felicity Gerry

36 Bedford Row, London, visiting

counsel at William Forster Chambers in

Darwin, Australia and co-author of The

Sexual Offences Handbook (2nd Edn

due 2013)

January 2013

1 R v R [1992] 1 A.C. 599, House of

Lords

09the barrister

10 the barrister

receive public funding. While

funding for public Children Act

cases has thus far avoided the

swing of the Treasury's fiscal axe, the

reforms outlined above are intended to

result in a total reduction of 40% in the

number of Family Law cases which are

funded by the LSC1.

It is well known that the LSC is

carrying out these reforms with the

aim of reducing the Legal Aid budget by

some £350m. Whether these planned

reductions in public funding will in fact

save the government any money in the

long run has been heavily debated over

the last two years. Similarly, there was

extensive discussion of the possible

effects on the most vulnerable in society

of these reforms in the lead up to

passing of the Legal Aid, Sentencing and

Punishment of Offenders Act in 2012.

What has not been discussed in such

detail, and what I wish to consider here

today, is the effect these reforms are

likely to have on the legal profession,

and specifically on the junior Bar.

As all barristers in practice at the

independent Family Law Bar will know,

a significant proportion of the work

given to the more junior members of

the Family Law Bar is publicly funded.

Young barristers in their Second Six

and in the first few years of practice

will generally work on large numbers

of publicly funded private Children

Act and financial relief cases. These

publicly funded cases provide many of

those at the junior end of the Family

Bar with the bread and butter of their

practice. The disappearance of the

majority of this work overnight in April

2013 cannot fail to have a seriously

deleterious impact on the careers and

livelihoods of all those in junior practice

at sets doing any significant quantity of

Family Law work.

In addition, it is through working on these

publicly funded cases that most junior

Family Law barristers gain experience

and develop their professional abilities

and expertise. These cases act as an

invaluable training ground from which

Family Law barristers can move on

to undertake larger and more complex

privately paid cases. This is especially

the case when it comes to financial

relief work. The loss of the majority

of this publicly funded work therefore

threatens to severely disrupt the Family

Bar at large by reducing the flow of

fully experienced barristers into the

upper ranks of the profession. The

long term effects on the quality of

the service offered by the Family Bar

are incalculable but are likely to be

significant.

Finally, these reforms are inevitably

going to result in a large increase

in the number of litigants in person

from April 2013 onwards, as has been

recognised by the Lord Chief Justice

Lord Judge among others2. This is

likely to make the work of those at the

Family Bar harder at the very moment

when the changes to public funding are

placing practitioners under exceptional

financial strain.

Many of those reading this article

will already have experience of the

problems litigants in person can present

to practitioners at court. Litigants in

person often understandably lack

detailed knowledge of the substantive

law relating to their case, and of the

procedure to be followed at court,

meaning that hearings take much

longer than would otherwise be the

case. Negotiating with such litigants in

person can often feel akin to pulling

teeth; in an effort to avoid being taken

advantage of, litigants in person are

frequently wary of agreeing to even the

most commonplace and common sense

provisions within a draft order, and

their emotional investment in the case

means that attempted negotiation on

the substance of the case is too often

completely fruitless. Meanwhile, in an

attempt to give the litigant in person

a fair chance, judges are sometimes

inclined to give the party with legal

representation a tougher time in court

than might have been expected, making

that party's representative's job harder

still.

Thus after April those at the junior

Family Bar face the threat of a significant

reduction in the size of their practice and

consequently of their income, combined

at the same time with an increase in

the difficulties faced by them and by all

other Family Law practitioners at court.

It is to be hoped that those in charge

of the public funding of Family Law

cases in England and Wales take note of

the serious problems their reforms are

posing for those at the Bar and for other

legal professionals before the effects of

these reforms become irreversible.

Aidan Murray Crook, junior barrister,

Trinity Chambers, Chelmsford

1 http://webarchive.nationalarchives.

gov.uk/20111121205348/http:/www.

justice.gov.uk/downloads/consultations/

annex-a-scope.pdf

2 http://www.lawgazette.co.uk/news/

lcj-voices-new-fears-over-rise-litigants-

person

p.1

11the barrister

Career limbo for would-be barristers has been opened up with a new route into the legal profession

By Patricia McHale, Senior Lecturer in Law, London Metropolitan University

For many years getting

pupillage has been

increasingly tough

(to say nothing of the

further challenge of

securing tenancy).

The oversupply of young barristers

has grown every year – there were at

least several armfuls of hopefuls for

every one of the 446 pupillages up for

grabs in 2012 and only one in six UK

national students who complete the Bar

Professional Training Course (BPTC) are

successful at gaining pupillage at the

Bar of England and Wales. http://www.

barcouncil.org.uk/about-the-bar/facts-

and-figures/statistics/

Despite the overwhelming statistical

conundrum faced by candidates and the

dire warnings pronounced repeatedly

by the bar, there are an increasing

number of students lining up to hand

over around £16,000 each for the BPTC.

The Bar Council and Bar Standards

Board’s (BSB) ‘Bar Barometer’ shows

that for 2010-11, 3,100 people applied

for the BPTC, up from 2,657 the year

before. This has become a huge issue

for the Bar and will be considered at

the forthcoming Annual Bar Conference

2012 in November.

So what has been done? The professional

bodies have spent a great deal of time

focusing on raising standards and

toughening up the bar programme,

with the new BPTC replacing the Bar

Vocational Course in 2010. They have

also raised the pass mark in skills

subjects from 50 to 60 per cent, only

allowing two attempts to pass and no

in-course reassessment.

This has now been followed by the

Bar Aptitude Test in a bid to lower

the proportion of students with a

propensity to fail and ensure those

with a low aptitude do not slow down

classes. Piloted between July 2009 and

September 2011, students who have

taken the test have been far from

complimentary, saying that although

they understand the need for such a

test, as it currently stands it is not fit for

purpose.

It is undoubtedly here to stay, even if

its form is further refined, as the BSB

believes the outcome of the test shows

a good correlation with the outcome of

the BPTC.

However, there is clearly much more

that needs to be achieved as the desire

to control numbers has to be balanced

against the need for increased access

to the bar – the dilemma is that if

there were a mechanism for reducing

numbers wholesale then there is the

potential that this could impact on

diversity.

Anthony Dursi, recruitment and

outreach manager at Inner Temple,

comments, “It isn’t just about the

numbers, though, the breakdown of the

numbers is important as well. We need

to look at who we’re attracting as a

profession – we find talent wherever

that may be from, but we need to make

sure we provide balance so we don’t put

off students who would get a pupillage.”

Dursi, agrees that more still needs to be

done to help students from less privileged

backgrounds enter the legal profession.

However, he emphasised that the bar

is better at recruiting outside Oxbridge

and the Russell Group than many people

realise. The most recent statistics from

the Bar Council show that 27.4% of pupil

barristers studied at universities outside

this elite band. http://www.barcouncil.

org.uk/about-the-bar/facts-and-figures/

statistics/#PupilBarStats

The Inns have done a massive amount of

work to reach out to people, particularly

from ‘non-typical’ bar backgrounds,

where even acknowledging they want

to come to the bar is a massive step.

Through outreach activities such as the

The barrister magazine cannot accept responsibility

for information supplied by other parties, views

expressed may not necessarily be that of

the editor or publishers.

12 the barrister

Pathways to Law programme, school

visits and online information, the Inns

have made prospective ¬barristers

very well-informed not only about the

statistics but also the opportunities and

scholarships. The progress the bar is

making in terms of social and economic

mobility can be seen in the Barometer

statistics comparing the cohort of pupils

in 2009-10 with 2008-09’s figures. In

2009-10 only 23 per cent of pupils came

from Oxbridge compared with 32 per

cent the year before; only 46 per cent

of 2009-10 pupils came from Russell

Group universities compared with 65

per cent previously; only 7 per cent of

pupils’ parents were lawyers compared

with 13 per cent ¬previously; and 55 per

cent of pupils came from a professional

background compared with 75 per cent

previously.

In terms of the future, a lot depends

on the outcome of the Legal Education

and Training Review (LETR), which

is a comprehensive review by the

representative bodies of the bar,

solicitors and legal executives looking

at the education and training of lawyers

across England and Wales.

LETR held a major symposium in

Manchester in July 2012. In his address

to the symposium, Professor Richard

Susskind – who is advising the review

team – laid out his vision for the future

of legal services. “We have got to open

our eyes, widen our horizons and train

our lawyers for as they will be, rather

than as they are today,” he said.

Professor Gus John, the chair of the

diversity group advising the biggest

review of training for lawyers in thirty

years, has issued a call for "affirmative

action" to compel the legal profession to

recruit more students from lower socio-

economic backgrounds into its ranks.

Speaking at the symposium, John

lamented "systems at work in the

legal profession that are impervious to

diversity initiatives".

The review focuses not only on numbers

of students entering the legal profession,

but also on future changes in legal

practice, but the panel is not due to

report until December. So watch this

space!

So where does that leave us regarding

the disparity in numbers? More funding

for pupillages seems an obvious solution,

but is difficult because chambers are

commercial enterprises subject to the

inexorable laws of supply and demand.

There are not huge swathes of legal

work being left undone because of a

lack of people-power and chambers are

not going to take on people if there is

no work for them, and nor should they.

BSB chair Baroness Deech commented ,

“People are talking about various ways

of increasing pupillages. But there’s

no point in increasing numbers of

pupillages if there isn’t the work for

them to do in their first years – it is

market forces.”

“The quality of bar students is

outstanding and absolutely wonderful

and the country could use these people,

but due to cuts in legal aid and the

economic recession it’s very difficult.

The bar is not alone in this – look at

the numbers of media graduates trying

to get into the BBC. It’s a national

problem.”

Challenging government moves on

public funding may also help, as it is

suspected there will be a further dip

in pupillages this year as practitioners

at family and criminal chambers suffer

from legal aid cuts.

Whether that reduction will be made up

for by the thrusting commercial bar or

more opportunities in the employed bar

remains to be seen, and depends very

much on the economic situation.

So what else is being done now? A

change in regulations by the Solicitors

Regulation Authority in May 2012, now

allows graduates from the BVC/BPTC

within the last five years to undertake

a shortened Legal Practice Course (LPC)

which does not require them to study or

be assessed in litigation based subjects.

They are given credit for “accredited

prior learning” and will therefore be

exempt from taking these subjects.

http://www.sra.org.uk/students/lpc/

accreditation-prior-learning.page

After completing the new shortened

version of the LPC, bar graduates will

still have to obtain and complete a

training contract in order to qualify as

a solicitor. The exemptions do not apply

to any part of the training contract. But

this will enable bar graduates to enter

the legal profession as solicitors.

Undoubtedly there are more training

contracts available than pupillages even

in the current economic climate. Nigel

Savage, Chief Executive at the College

of Law said, “The number of training

contracts was up by 11% last year.”

13the barrister

“There is the potential for continued

growth in the legal services market,

with all the opportunities that growth

brings. We do need more lawyers,’ he

said.

The ratio of applications per vacancy

in the law sector is one of the lowest at

45:1 – the average is 73:1. Many City law

firms, such as Allen & Overy and Clifford

Chance, recruit over 100 graduates

every year. Although the sector is highly

competitive – with a minimum entry

standard of a 2.1 for 76% of firms – it

remains rich in opportunities for would-

be trainees.

Frances Burton, MA, LLM, Barrister,

Mediator, former Tribunal Judge and

Research Fellow, said: “The change

in regulations enables talented bar

students to take a proactive approach

to moving their careers in the right

direction to bring the added value

of their Bar backgrounds to finding

employment on the other side of the

profession.”

Owsun Abebrese BA, LLM, Barrister,

Academic Leader in Law and

Immigration Judge, said: “There are

more Training Contract positions

available than pupillage vacancies –

this is a fact.

Bar students are ideally placed to take

advantage of dual qualification to give

them a head start in securing a training

contract. Many will consider entry into

the legal profession via this alternative

route now that the SRA have relaxed

their regulations. This is an opportunity

not to be missed.”

Why has the SRA introduced this change

in regulations? The introduction of a

policy on accredited prior learning in

relation to the LPC appears to have been

under consideration for some time.

However, because of the impact that

such a policy could have on achieving

their stated regulatory objective of

increasing access to the profession they

have decided to make this change in the

regulations now.

Historically, legal education has been

slow to respond to the rapidly changing

legal services market; however the

emergence of a new kind of “shortened”

LPC which if flexible enough to allow

bar graduates to work while studying,

could help relieve the bottle neck and

enable a more socially diverse group of

students to practice law.

Professor Robert McKeever, Dean,

Faculty of Law, Governance &

International Relations at London

Metropolitan University said,

“Responding to the change in the

SRA regulations will enable many bar

graduates to realise their ambition and

enter the legal profession via a Plan B.

Talented bar graduates from a wider

social background whose legal career

has been in limbo have now been given

another option”.

He went on to say,” Everyone is

committed to supporting diversity in

the legal profession, so I welcome the

initiative shown by the SRA.”

London Metropolitan University appears

to be the first LPC provider to have

acted on the change in regulations and

offer a shortened LPC exclusively for bar

graduates.

Professor Gus John

14 the barrister

“The more extensive a man's knowledge of what has been done, the greater will be his power of knowing what to do.”British Prime Minister, parliamentarian, Conservative statesman and celebrated author Benjamin Disraeli is perhaps not best known for his pithy, apposite, quotes on the reasoning behind carrying out a comprehensive disclosure exercise in litigation, and yet from beyond the grave his words must echo through disclosure service providers on a daily basis.

By Mike Taylor, barrister and director, i-Lit Paralegal

The headline-line of

this article couldn't

be more appropriate

when it comes

to describing the

purpose of disclosure

exercises. Of course if we all followed

Disraeli's advice to the letter we'd

spend even larger amounts time and

money reading and re-reading all of the

documents that are under the control

of clients. Very sensibly we have the

Civil Procedure Rules and in particular

parts 1 and 31 to help us temper our

disclosure vigour with proportionality.

The Civil Procedure Rules, in common

with all complex codified procedures,

occasionally need some fine tuning and

April 1st 2013 will see the 60th update

to those rules since they came into force

in 1999.

The 60th update, amongst other things,

turns it's gaze on disclosure and in

particular bringing the costs associated

with disclosure under control and

emphasising the role of the judiciary in

ensuring that disclosure is carried out

proportionately.

WHAT'S THE DIFFERENCE?

Rule 1.1, the overriding objective, has

been updated to specifically include

a reference to proportionality in it's

opening paragraph as well as another

mention of proportionality and a

specific reference to enforcing the rules

to ensure that case are dealt with justly

and proportionately. This is an important

change. It sets the tone under which

all subsequent rules are read and it

emphasises the need for proportionality.

The change may be small but it certainly

seems to refocus the entire CPR in the

spotlight of proportionality.

Rule 31.5 is where what has changed is

just as important as what hasn't.

The things that haven't changed are

that that an order for disclosure is still

an order for standard disclosure unless

the court directs otherwise and the

court can still dispense with or limit

standard disclosure and parties can still

agree to dispense with or limit standard

disclosure. The new rule repeats the

previous rule in its entirety.

The changes are important they describe

a new process for ensuring that parties

agree the way in which disclosure is

carried out and emphasise that the court

can force parties to complete disclosure

exercises in a proportionate way should

that become necessary (35.8 (a) - (f))1.

31.5 (3) begins the changes by stating

that;

The process will begin not less than

14 days before the first CMC when

each party must file and serve a report

verified by a statement of truth, which -

(a) describes briefly what documents

exist or may exist that are or may be

relevant to the matters in issue in the

case;

(b) describes where and with whom

those documents are or may be located;

(c) in the case of electronic documents,

describes how those documents are

stored;

Using the questions found in Electronic

Documents Questionnaire found at

Practice Direction 31B will enable

solicitors to prepare an appropriate

response to this requirement.

(d) estimates the broad range of costs

that could be involved in giving standard

disclosure in the case, including the

costs of searching for and disclosing any

electronically stored documents; and

This is potentially a complex and

detailed requirement and the one which

will almost certainly cause the greatest

amount of problems. Parties will almost

certainly prepare these cost estimates

using different assumptions about what

should and shouldn't be included. Areas

of dispute will include (but won't be

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limited to);

1. How data is collected

2. Which Service provider completes the

data processing (all charge in different

ways and at different levels, a recent

case I was involved with had quotes

ranging from 11k up to 57k for exactly

the same work)

3. Whether the filtering assumptions

used to arrive at the pricing estimate

are fair

4. How much lawyer time is involved in

arranging the external service provider

5. What document review platform is

used and how many people need access

to that platform.

6. How long data needs to be hosted for.

7. How documentation is reviewed and

what assumptions (around speed, price

and use of technology) have been used

to arrive at that pricing.

8. How documentation is exchanged

between parties.

Parties who are pushing for a particular

method of disclosure (either standard

or otherwise) will very easily be able to

produce a report, quite appropriately

verified by a statement of truth, which

outlines the pricing scenario they wish

to present to the court and which they

feel is most likely to produce the menu

option (see below) that most suits their

requirements.

(e) states which of the directions under

paragraphs (7) or (8) are to be sought.

Whilst the presumption is still heavily in

favour of standard disclosure it would

seem that parties can request or the

court can order any of the provisions

under 31.5 (7) and (8).

It would seem to follow that in order for

that order to be made under 31.5 (7) (i.e.

an order other than standard disclosure)

parties would do well to demonstrate in

their report that standard disclosure is

disproportionately expensive given the

value of the claim. Rule 31.5 (8) simply

gives the court to the power to give

directions as to how disclosure is given

(see above).

Additionally under 31.5(4) if parties

have agreed to exchange the Electronic

Documents Questionnaire found at

PD31B then that questionnaire should

be appended to the report found

outlined at 31.5(3), the electronic

documents questionnaire is still not

compulsory however completing it

will provide parties with the ability to

complete the new budget appropriately.

The requirement to meet the opposition

to seek to agree a way forward for

15the barrister

disclosure (which is in accordance

with the overriding objective) has been

elevated from Practice Direction 31B

to the rule (31.5 (5)) and the ability of

the court to approve an order agreed

between parties without a hearing is

also included (31.5 (6)).

Perhaps the most talked about aspect

of the 60th update (in relation to

disclosure) has been the "menu" option

for disclosure. However as we have

already seen the presumption of the

rules is still that disclosure will be

"standard" disclosure and that parties

are required to produce budgets for

standard disclosure.

However 31.5 (7) does give a range of

options other than standard disclosure.

It must be assumed that whilst in theory

these options are available in any case

and at any time in practise it would seem

to be the case that parties are going

to have to demonstrate to the court

that the presumed form of disclosure,

standard, is in some way not compliant

with the overriding objective (i.e. that

standard disclosure is either "unjust" or

disproportionate to the value of the claim)

for the menu options to be really given

serious consideration. Proportionality is

certainly going to be the door that most

litigators are likely to push against in

an attempt to dispense with standard

disclosure not least because the budget

for standard disclosure (demonstrating

its disproportionate nature) will already

have been drawn up.

The "menu" under 31.5 (7) has 6 options

however one of the options is standard

disclosure (option (e)) and another is

to dispense with disclosure altogether

(option (a)) and so really there are only

4 "new" disclosure options. They are;

31.5 (7)

(b) an order that a party disclose the

documents on which it relies, and at

the same time request any specific

disclosure it requires from any other

party;

To disclose the documents that you

rely on you first need to know what

documents you have available to you

(as Disraeli noted, “To be conscious that

you are ignorant of the facts is a great

step to knowledge.”) and until lawyers

have had an opportunity to investigate

the documents under the control of the

client they can be in a very real way be

"ignorant of the facts" and so not aware

of what documents that they actually

rely on. This potential order seems to be

aimed at circumstances where a party

may, for instance, have a very tight core

bundle of evidential documentation that

it doesn't think will be improved on by

requests for specific disclosure by the

opposition.

The problem with this does seem to be

that parties are opening themselves up

to unknown specific disclosure orders

(which will presumably arise out of

examination of their core bundle and

their own documentation) and so an

argument for this option on the basis

of proportionality will be difficult. Given

that parties are also very likely to look at

all documents in their control that may

be relevant to the case it would be more

cost effective to draft a detailed standard

disclosure protocol than to request this

option which is potentially open ended.

(c) an order that directs, where

practicable, the disclosure to be given

by each party on an issue by issue basis;

Issue based disclosure that limits itself to

a simple order that limits disclosure to

documents relating to a specific issue or

issues may help to reduce overall costs.

However it is difficult to tell if it will

actually assist in producing a disclosure

exercise which is more proportionate as

the identification of the documents that

relate to an issue may require parties to

examine all of the documents in their

control (depending on how the parties

documents are stored).

(d) an order that each party

disclose any documents which it is

reasonable to suppose may contain

information which enables that party

to advance its own case or to damage

that of any other party, or which leads

to an enquiry which has either of those

consequences;

This is the old "Peruvian Guano" test. I

will leave any comment to this to Lord

Woolf in the report which first gave

rise to the Civil procedure Rules, at

paragraph 17 of chapter 21 of Access to

justice he states;

"17. The result of the Peruvian Guano

decision was to make virtually unlimited

the range of potentially relevant (and

therefore discoverable) documents,

which parties and their lawyers are

obliged to review and list, and which

the other side is obliged to read, against

the knowledge that only a handful

of such documents will affect the

outcome of the case. In that sense, it

is a monumentally inefficient process,

especially in the larger cases. The more

conscientiously it is carried out, the

more inefficient it is."

It would therefore seem unlikely that this

order will produce a more proportionate

result than standard disclosure.

The final menu option is;

(f) any other order in relation to

disclosure that the court considers

appropriate.

There was, prior to the publication of

the rules, some speculation about a

"keys to the warehouse" option arising

under this "catch all" rule. However

16 the barrister

with standard disclosure remaining as

the presumed method of disclosure it

would seem inconceivable that a situation

where, parties simply hand over all of

their documents to the other side would

end up being more closely attuned to the

new overriding objective, could arise.

Conclusions

With the exception of 31.5 (3) (a)-(e)

the new rules would seem to affirm

old rules and elements of the existing

practice directions. The options under

31.5 (7) would generally seem to beg

more questions than they answer.

Clients continue to drive for lower and

more predictable costs and with an

e-disclosure industry which is set up to

service standard disclosure it seems to

be an obvious truism that the most cost

effective, predictable form of disclosure

will remain standard disclosure.

Finally lawyers would do well to take

heed of Disraeli for a final time, when

he said;

“As a general rule, the most successful

man in life is the man who has the best

information.”

That that does not just apply to the facts

of a matter but also the way in which

modern standard e-disclosure exercises

can be carried out quickly, predictably

and at low (or at least proportionate)

cost.

Mike Taylor

i-Lit Paralegal

Rushwood House,

Richmond,

North Yorkshire,

DL10 6BG

E-mail: info@i-litparalegals.co.uk

Phone: 01748 810221

1 It could be argued that the principle established in Mueller Europe Ltd v Central Roofing (South Wales) Ltd [2012] EWHC 3417 (TCC) (30 November 2012) confirmed that the courts have always had much the same power.

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17the barrister

18 the barrister

Clipping the wings of Russian litigation in English CourtsArthur Dedels, of Zaiwalla & Co Solicitors in London, considers the prospects of Russian litigation in English Courts

Of the 50,000-

odd lawyers in

London, only a few

hundred can lay

claim to speaking

Russian. This lexical

limitation has not, however, prevented

an avalanche of Russia-related cases

appearing in the English Courts over

the past few years. It is estimated that

over 50% of the cases currently passing

through the Commercial and Chancery

Divisions of the English High Court

relate to Russia in some way. Given this

pattern, it is unsurprising that many

observers are wondering whether the

English Courts will continue hosting this

inundation indefinitely.

The reasons why so many Russian

parties decide their disputes in the

English Courts include the fact that

English law is often stated to apply to

transnational commercial transactions,

the appeal of an uncorrupted English

legal system, the independent and

objective approach of English judges,

freedom of speech and press and the

reliable legal advice and support which

abounds in London.

However, the corollary of the comfort

which some Russians feel when

litigating in England is that it can

cause problems for other Russians. The

above traits of the English legal system

can easily become a hindrance to a

Russian party. Another problem is the

amount of information that is publically

revealed and the big names which are

aired in the course of English litigation.

For these reasons, and in the light of

recent legislative and judicial activity in

Russia in conjunction with statements

from some public figures, the future of

Russian litigation in the English Courts

does not look too bright.

Anton Ivanov, Chairman of Russia’s

Supreme Commercial Court, opined

recently at the St Petersburg

International Legal Forum that “Russia

should guarantee its citizens and entities

protection from the unfair competition of

foreign judicial systems.” He went on to

suggest that the Russian Courts should

be empowered to disregard judgments

from foreign jurisdictions, and to punish

individuals who interfere with Russian

interests overseas. The punishments he

had in mind included freezing assets in

Russia and denying individuals entry

to the country. The Prime Minister and

former President, Dmitry Medvedev

condemned the “prejudiced competition

of foreign legal systems” and endorsed

Mr Ivanov’s proposals.

It was not long before Mr Ivanov had a

chance to implement his vision in a case

over which he was presiding as a judge.

The case concerned a dispute between

the Russian Telephone Company and

Sony Ericsson Communication Rus, over

a contract that granted both parties

the right to commence arbitration in

London. However it also granted one

of the parties the right to commence

litigation in the Courts of any competent

jurisdiction. With regard to the latter

right, the Presidium of the Supreme

Commercial Court of Russia held,

contrary to previous judicial practice,

that the clause was invalid because it

breached the balance of rights between

the parties. The Russian Telephone

Company was therefore able to issue a

claim in the Russian Court even though

the contract did not provide for it to have

this right. Importantly, this decision

sets a precedent which will have to be

followed by all lower Courts in Russia.

The most obvious advice for anyone

dealing with a Russian party but who

wishes to avoid litigation in Russia is

to avoid clauses that grant a unilateral

right to commence proceedings in a

particular state (or in the Courts of any

competent jurisdiction as in the above

case). One would also be well advised

to avoid similar clauses relating to

arbitration, as the reasoning of the

Russian Court may well be the same as

in the case of litigation.

Further, if you wish your dispute to be

heard in England, it is advisable in most

cases to opt for arbitration rather than

litigation. This is because there is no

agreement between the UK and Russia

for the enforcement of judicial decisions.

Therefore, any remedy awarded by

the English Court may be very hard

to enforce in Russia. It is only safe to

19the barrister

commence litigation in England against

a Russian party when the decision

sought can easily be enforced in the UK

or in other countries with which the UK

has an agreement on enforceability of

judicial decisions. This is the case, for

example, when the ultimate goal is to

gain financial compensation and the

Russian party’s assets are located in the

UK. In contrast, it is always safest to opt

for arbitration when a Russian party

is involved, because both the UK and

Russia are signatories to the Convention

on the Recognition and Enforcement of

Foreign Arbitral Awards – known as the

"New York" Convention.

Arbitration is a form of alternative

dispute resolution. As opposed to

traditional litigation in a state Court,

where disputes are decided by judges,

in arbitration the parties to the contract

appoint an arbitrator themselves. The

parties may also want a dispute to be

heard by a panel of three arbitrators.

In this case each party appoints one

arbitrator, and a chairman arbitrator

is appointed either by the arbitration

centre where the dispute is being

heard or by the two party-appointed

arbitrators.

Apart from enforceability in Russia,

there are several other features of

arbitration which are usually considered

to be advantageous in comparison with

litigation for a party whose true intention

is to ensure a fair trial.

Firstly, arbitration is usually cheaper

and much faster than litigation.

Secondly, arbitration is a form of private

dispute resolution. This means that the

public and media do not have a right to

attend the hearings, and the facts which

come out in the dispute, as well as the

decision and its reasons, are not publicly

available. Thirdly, the right to appoint

an arbitrator or a panel of arbitrators

allows the parties to choose experts

in their field of business. This ensures

that the arbitrator fully understands the

underlying issues, and often eliminates

the need for expert witnesses. Fourthly,

decisions of arbitrators are legally

binding; the parties can and often do

agree that there can be no appeal from

the final decision. At that time, the

decision can only be made subject of an

appeal in Court, and then only if there is

evidence that the tribunal did not have

the right to make its award, or that there

was serious irregularity on the part of

the tribunal.

Finally, when it comes to choosing a

place to arbitrate, London has always

boasted the reputation of being the

world’s most reliable forum. London has

long been considered the commercial

capital of the world and England has

a very well-developed legal system

with highly experienced and skilled

legal advisors and judges. Many retired

judges and senior legal advisors become

arbitrators. Therefore, the traditions

and expertise of the English legal system

are reflected in English arbitration.

Moreover, London has a very highly

regarded Commercial Court and the

UK Arbitration Act 1996 allows the

Commercial Court Judges to keep an eye

on the arbitration process in London,

in order to maintain the integrity of

London International Arbitration and

ensure that arbitrations are conducted

in a fair manner.

P.S.

At the time of writing, the Russia

President, Vladimir Putin, delivered

his annual Address to the Federal

Assembly. One of the issues he raised

was the challenges faced by the Russian

legal system. Mr Putin was concerned

that “according to some assessments,

nine out of ten major transactions made

by major Russian companies are not

regulated by Russian laws” and gave

instructions to the Government to make

proposals that will make a difference

in this regard. This clearly shows that

not only is Russia seeking to bring home

litigation involving Russian parties, but

is also looking for the ways to make

Russian law applicable to these matters.

-

Arthur Dedels, Zaiwalla & Co in London

T: 0207 312 1000

E:arthur@zaiwalla.co.uk

W: www.zaiwalla.co.uk

Arthur Dedels was born in Latvia, but

his mother tongue is Russian. Having

finished school, Arthur moved to

England and obtained a BA in Law with

first class honours and a distinction in

Masters in International Commercial,

Corporate and Maritime Law. Arthur

mainly works with the firm’s Russia &

CIS desk assisting clients from all over

the world in CIS related cases.

Zaiwalla & Co. Solicitors is a niche

London law firm specialising in

international commercial arbitration

and litigation.

20 the barrister

An esteemed

silk at the

publicly funded

Bar recently

asked me why

members of his

Chambers should undertake Bar Pro

Bono Unit (‘Unit’) cases when they can

simply accept the offers of pro bono

work coming direct to their Chambers

from solicitors.

His question got me thinking. The

impeding cuts to legal aid will not only

affect around 650,000 people, it is

going to place an immense strain on the

entire profession from frontline advice

agencies to Lord Justices of Appeal.

The Bar, especially junior legal aid

practitioners, is not immune from this

pressure. So, in this difficult climate:

Why should barristers go the extra mile

and volunteer with the Unit?

This article intends to challenge

assumptions that may deter barristers

from taking on Unit cases and set out

why it is crucial the Bar’s commitment

to pro bono work must remain strong.

In short, the Unit’s framework to

facilitate pro bono cases for the Bar

ensures the most deserving individuals

and organisations benefit from the finite

goodwill of the Bar in a co-ordinated

approach.

The Unit is often the last resort for

individuals, they are not simply looking

to get something for free. Individuals

must demonstrate they cannot secure

legal aid, obtain a CFA or alternative

funding or pay for assistance privately.

Increasingly people are referred to the

Unit by their local MP due to a dearth of

free local advice agencies. The cases are

often not ‘sexy’ and many individuals

earn a fraction over the modest legal aid

threshold.

Every Unit case has been reviewed and

deemed worthy of assistance by a senior

barrister, the Unit does not wish anybody

to waste precious time on a ‘hopeless’

case. The Unit receives around 1,300

new applications each year and the

Unit’s panel of specialist reviewers

decide whether a case is worthy of

assistance. If so, he or she identifies the

work, expertise and seniority required

in the particular case. Importantly, the

reviewers also ensure that the Unit

selects cases fairly and consistently.

Volunteer barristers are only instructed

to undertake a specific piece of work,

thereby reducing the danger that a case

can spiral out of control and take up

an unreasonable amount of time. Once

the specific piece of work is complete,

the client requests further assistance

from the Unit not counsel. This ‘buffer’

can be particularly useful where a case

requires a great deal of work or negative

advice has been provided. Whilst the

client instructs counsel directly, the

Unit is alive to the fact that dealing

with individuals can be time-consuming

for both counsel and chambers and

manages the individual through the

process.

The Unit can obtain support for a

barrister from either a pro bono solicitor

or legal executive, no barrister is

expected to act as a pseudo-solicitor. The

Unit has a relationship with LawWorks,

CILEX and Employment Lawyers

Association and can seek support for

counsel where appropriate. This can be

invaluable where a client is struggling to

manage his or her own case. It is also

a welcome opportunity for barristers to

work with firms that might not usually

instruct them or their Chambers.

Many barristers find a Unit case develops

them professionally, whilst this is not

the objective of the Unit it is a welcome

additional benefit for volunteers. Any

barrister can get a flavour of Direct

Access under the Unit’s licence. Often

volunteers spend most of their time

representing the bank, the landlord or

the employer so a Unit case throws up

different challenges and takes them out

of their comfort zone. Occasionally, pro

Bar Pro Bono Unit – why bother?By Tom Copeland, Caseworker, Bar Pro Bono Unit

the barrister 21bono advice enables an individual to

obtain public funding or a CFA. If this

happens everybody is a winner and the

Unit acts as a valuable safety net.

The legal sector is in the midst of a storm

with the Bar weathering challenges

posed by legal aid cuts and increased

competition. The Unit operates within

the eye of this storm, it attempts to

accommodate the needs of the Bar and

frontline advice agencies whilst ensuring

the most vulnerable and deserving

individuals receive legal assistance

that matches that which a privately or

publicly funded client would receive.

The Bar has a history of working for the

public good and striving to ensure access

to justice fearlessly; now more than ever

before the Unit requires its members

to stand up, put on their raincoats and

brave the storm. The esteemed silk

who asked why barristers should bother

already has.

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22 the barrister

Bar Council calls for proportionate regulationin response to LSB’s business plan

Leaked email shows CPS puts cost first, quality secondwhen prosecuting serious crimes – bar leaders

The Bar Council, which represents barristers in England and Wales, has called for proportionate and financially responsible regulation in its response to the Legal Services Board’s (LSB) draft business plan for 2013-14. In its response to the LSB, the Bar Council emphasises the fundamental importance of proper regulation to ensure that the justice system works in the public interest.

However, it has voiced concerns about the costs and scope of the LSB’s plans, which do not seem to take sufficiently into account the cuts that the legal profession currently faces and the increasing financial pressures under which it operates.

These concerns were highlighted by a recent Freedom of Information request, which disclosed that £21,367 was spent on the recent LSB

publication which looked into the Cab-rank rule. The Bar Council has serious reservations about this particular piece of research, the need for which is not clear. There is particular concern that so much is being spent on research that the Bar Council believes is of questionable quality and which the LSB itself indicates will not result in any sort of consultation.

Maura McGowan QC, Chairman of the Bar, said: “Nobody can question the importance of proper regulation. However, at a time when most Government departments have to reduce their expenditure, the oversight regulator does not appear to feel the same pressures. We must seek to ensure that the profession is not unnecessarily burdened by the weight and cost of regulation. It is widely recognised in Government that small businesses need to be free from excessive

red tape. As a profession of small businesses, this should also be true of the way in which the Bar is regulated.

“The LSB has achieved a great deal since its formation, for which it should be commended. But over the coming year, it ought to focus on its core duties of regulatory supervision and avoid mission creep and duplication of what is already being done by front-line regulators.

“The Cab-rank rule report was just one example of this worrying trend. If the driver was better to inform the LSB itself of the background and application of this rule, it must be said that there is a wealth of knowledge, expertise and material at the Bar Standards Board, as front-line regulator, which arguably should have been accessed before incurring new costs which have led nowhere.”

The Bar Council, which represents barristers in England and Wales, along with the Criminal Bar Association and Circuit Leaders have published evidence that the Crown Prosecution Service (‘CPS’) has adopted deliberate practices not to instruct the correct advocate for a given case if there is a financial interest to the CPS in keeping the work in-house. An internal CPS email reveals beyond doubt what the Bar has long thought to be the practice in terms of how the CPS instructs advocates, namely:

1. Complex, difficult or ‘messy’ cases requiring a superior level of expertise are briefed out to the independent Bar – especially if they are likely to be poorly remunerated, and2. Cases which are weak or likely to be particularly profitable are

to be kept in-house, which will result in misleading figures as to how cost effective in-house CPS advocates are.

Maura McGowan QC, Chairman of the Bar Council, also speaking on behalf of the Criminal Bar Association and all the Circuit Leaders, said:

“The public interest demands that the correct advocate is instructed to prosecute a case based on skill and the complexity of the case. Today, we are able to show, with incontrovertible evidence that the CPS is deliberately acting against the public interest and the best people are not being used to prosecute serious crimes.

“The emergence of the CPS in-house advocate and the focus on cost and budget rather than quality of advocacy is a serious blow to the criminal justice system. We would never have known for certain that this practice was going

on, without the evidence that we are publishing today.

“The public and the Bar might justifiably believe they have been misled.

“Both Michael Turner QC and I have informed the Director of Public Prosecutions on the topic. He has offered his apologies and has stated in terms that this communication was unknown to him or anyone in his office and does not represent any general policy. He has promised a full investigation.

“We await that investigation to see whether the stated method of instruction in the attached email is indeed limited to the five North London Courts or if the notion of dividing work with cynical disregard for standards is more prevalent than we have been led to believe.

n e w s

23the barrister

Bar Survey – Barristers set leading example in CSRand commit to further Pro Bono funding

‘Risk-assessed’ supervision consultation launched

A survey conducted by the Bar Council, which represents barristers in England and Wales, has found that close to half the profession (42.4%), across all practice areas, regularly carry out voluntary legal pro bono work, in addition to paid work. It also found that 36.6% of the Bar regularly volunteer for non-legal charitable organisations. These findings show that despite the economic pressures many sections of the Bar are currently facing, the role that barristers play in society has enormous value, and is both socially responsible and publicly useful.

Key findings of the survey include:

• 42.4% of respondents regularly carry out voluntary legal pro bono work in their local community• Over a third of respondents dedicate time to working for charitable organisations • Almost a quarter of respondents

were found to devote more than one working day per fortnight to voluntary work, and almost a third give up more than one working day per month, and• The overwhelming majority of respondents believe that barristers have a responsibility to lend their skills and knowledge to those who cannot pay for them.

The Bar Council also confirmed, as announced by Immediate Past Chairman, Michael Todd QC, last year, that as part of the Practising Certificate Renewal process, it has asked every practising barrister to make a £30 opt-out donation to support the work of the Bar Pro Bono Unit, in an effort to secure the vital charity’s long term financial sustainability.

Maura McGowan QC, Chairman of the Bar, said:

“The Bar has long demonstrated a strong sense of commitment and duty towards legal pro bono work, but

the findings of this survey show an astounding level of dedication at the Bar to those in society who need legal advice and representation, and to ensuring access to justice.

“The private comments which respondents provided reflect the pressure which many barristers are under, but despite those pressures, they still place an enormous value on acting in a socially responsible and publicly useful manner.

“It must be unheard of for 42% of a predominantly self-employed profession regularly to give away its primary services, free of charge, to those most in need.

“The Government should take these findings into account when looking at further cuts to fees at the publicly funded Bar. This survey explicitly demonstrates the contribution the Bar makes to the taxpayer and to society.”

Sets of chambers and barristers have the opportunity to influence how they are supervised by the Bar Standards Board (BSB) by taking part in a consultation exercise. The BSB is seeking feedback on a new approach that is designed to target resources at chambers and entities that are most likely to breach the Code of Conduct. Under the proposal, the Bar Standards Board would inform chambers that are identified as higher risk and signpost available support. Risk would be evaluated by taking into account matters like disciplinary history but also good practice measures that reduce the likelihood of non-compliance. The BSB intends to develop supervision as a credible and proportionate alternative to enforcement action when breaches do occur. This would mean that

enforcement is reserved for the most serious or persistent cases of non-compliance. In particular the BSB would like comments on: • How the BSB plans to gather evidence to determine which chambers or entities are at risk of breaching the Code of Conduct. • What the BSB should look for in terms of good practice measures that make non-compliance less likely.• When and how supervision should be used as an alternative to enforcement action.Head of Quality Oliver Hanmer said; “Our aim with the new approach to supervision is to develop positive relationships with chambers so we can work together to prevent problems arising. We are keen to collect views. The focus of supervision is on working with the Bar to achieve the common goal of compliance with regulatory requirements without the need to

resort to enforcement action. There are strong public interest arguments in favour of this approach.” Take part in the consultation email SIssop@barstandardsboard.org.uk

1. Further information from the Bar Standards Board Press Office on 020 7611 1452.2. The Bar Standards Board regulates barristers called to the Bar in England and Wales in the public interest.It is responsible for:• Setting the education and training requirements for becoming a barrister• Setting continuing training requirements to ensure that barristers' skills are maintained throughout their careers• Setting standards of conduct for barristers• Monitoring the service provided by barristers to assure quality, and handling complaints against barristers and taking disciplinary or other action where appropriate.

n e w s

24 the barrister

When I coach

barristers

I am often

challenged,

sometimes

f i e r c e l y ,

about why diversity is important. Why

should diversity matter if they want to be

a QC? As long as they can draft excellent

documents and are skilful advocates

why should it matter if they have done

little or nothing to promote diversity at

the Bar.?

Of course I listen patiently and when

they are done I then explain to them

why indeed having a diverse profession

is important, primarily because the Bar

is still the main feeder profession for

members of the judiciary and indeed for

Silk.

When I work with solicitors and business

leaders I emphasise the business benefits

and I explain that Diversity is important

because it is essential for businesses to

attract the best talent. Once they have

attracted them then the next challenge

is how to retain them.

Well, like some of you, I too am sick of

diversity, but perhaps for very different

reasons.

I am sick of what I feel is a wishy washy

term that has entered this debate. The

term diversity attempts to describe

the aspiration of female barristers,

black barristers and other so called

minorities or protected categories. The

reason I feel sick is that, in my humble

opinion, it does not accurately reflect the

feelings of frustration, disappointment,

confusion and anger felt by these groups

when they are on the receiving end of

discrimination or unfairness.

Any better suggestions?

Well I wish I could come up with a

better or different word that would be

acceptable to the majority population

to describe the critical issue of treating

people fairly and not discriminating

against fellow human beings on the

basis of characteristics they can do

nothing about.

I wish I had another word to describe the

slow loss of hope that they experience.

I see the light going out in their eyes

as they describe to me time after time

how they feel when they are rejected for

pupillage, often without even getting an

interview. They know they can do well,

if given a chance. They know how hard

they have had to work to get through

the education system, to deal with the

negativity from some teachers and often

their parents.

Why should I care? Because I am one

of those lawyers who has been (and

continue to be) on the receiving end of

discrimination. This has been a factor

throughout my life especially during

the formative years of my career.

More importantly I know of many

many barristers and solicitors who

experienced the same fate as I did and

worst in many cases. People have been

left traumatised by their experiences of

discrimination at the bar. In fact I was

shocked (even though I shouldn’t be)

to hear first hand, only last week, from

a very senior barrister in a relatively

diverse chambers that even today

he is not being clerked and is totally

unsupported by his clerks. This has

been a feature throughout his career. He

has to find his own work by developing

relationships with solicitors by himself

and hunt for his own work.

Sadly this is a story that I have heard too

many times, yet each time I hear it I feel

that physical sickness that I felt when I

was on the receiving end of racism, or

shall we say direct discrimination, or

..... a lack of awareness of the benefits

of diversity.

Day after day, evening after evening

I attend seminars, workshops,

conferences etc to be lectured on and

to discuss the topics of “Diversity”,

“Inclusive Leadership”, “Diversity and

Inclusivity” or other similar issue?

Whatever happened to the words racism,

prejudice, inequality, discrimination or

unfairness? It seems that these words

have been replaced by words which are

Are You Sick of Diversity?By Caroline Newman LLM, non-practising solicitor and Principal Consultant at Lawdacity

25the barrister

non-threatening and non-judgmental

and more acceptable to the majority.

During my time in local government in

the 1990s we attended Racism Awareness

Training. Today the course would be

called “Diversity and Inclusivity” or

“Inclusive Leadership”. Here even the

word diversity has disappeared and the

word “Equality” has long disappeared as

an aspiration.

I can see the rationale for this. Because

if things are going to change we need to

encourage, persuade, cajole, set targets,

give reasons, and justifications as to why

people should be given a fair chance in

life.

But are we denying that people are

racist or sexist or homophobic? Are we

denying the experience of the people on

the receiving end of the behaviour by

focusing on the needs and sensitivities of

the majority population? Are we letting

each other off the hook? Are we denying

the opportunity for us to challenge our

prejudices and unconscious biases?

We talk about the “business benefits of

diversity”. Whilst I am a proponent of the

business benefits of diversity it saddens

me that it appears that the personal

pain, rejection and disappointment that

some members of our profession feel is

submerged or forgotten by the shift in

focus away from the “victims” of racism,

sexism and homophobia to focus on the

“perpetrators” and their needs.

Who will lead change and make things

better at the Bar?

Will it be the 200 or so barristers that

apply for Silk each year? They have

to demonstrate their competency in

promoting diversity to an excellent

standard? Will it be the 800 or so QCs

who have already been appointed since

the new system for the selection of QCs

came into existence? These QCs have

ostensibly already demonstrated their

commitment and evidenced their actual

promotion of diversity during their

careers and, by implication, their ongoing

commitment to improve diversity at the

Bar. Surely with all this focus on diversity

change will come soon, won’t it?

Will it be the judiciary? The Government?

The Bar Council or the Bar Standards

Board? The BSB has recently revised its

Diversity and Equality code of conduct

and has imposed deadlines on chambers

by which they should deliver on fairer

recruitment. By 31st January at least

one person on a recruitment panel ought

to have been trained in fair recruitment?

Then chambers have another 18 months

to ensure that everyone who is involved

in the recruitment of pupils have received

training.

Barristers have been attending the

courses. My question is this. Is this yet

another what many barristers have

referred to as a “box ticking” exercise?

Each time I hear that phrase from a

barrister I have to resist feeling annoyed

that this is how some of them regard the

process of ensuring that their colleagues

get an equal or even a fair crack at a

career at the Bar.

Yet I am encouraged when I work

with some chambers (and individual

barristers) who have been open to

exploring ideas about how they can

actually improve the diversity profile of

their chambers. I have been encouraged

by their determination to try to change,

without, of course, compromising the

integrity of the bar and continuing to

recruit on “merit”. I have been inspired

by some of the creative ideas that go

beyond the compliance requirements.

Together we have discovered new ways of

encouraging a wide range of applicants,

ensuring that those applicants get a fair

chance and when they are appointed

put in place positive action programmes

to help them to succeed. Whilst also

ensuring that everyone in chambers

receives training and that they create

an environment within which that pupil

or tenant can thrive. And, who knows,

with a fair allocation of work, coaching,

training, mentoring and sponsoring they

might go on to qualify for judicial office or

become a Silk themselves, one day.

When I work with barristers we explore

the reasons why diversity is important

enough tor it to be a compulsory

competency for appointment as a QC.

Why is Diversity at the Bar Essential?

I explain to my clients that it is important

to the government and to society for

there to be an increase in the proportion

of women and ethnic minority judges on

the bench.

But the Judicial Appointments

Commissioners have said repeatedly that

‘throughout the judiciary the numbers of

women, ethnic minorities, those with a

disability and solicitors do not reflect the

pool of available candidates’.

So what are the barriers to a more

diverse judiciary? What can realistically

be done to achieve speedier and

26 the barrister

sustained progress to a judiciary more

representative of the people it serves?

It would appear that everyone agrees that

“merit” must remain the sole criterion

for selection as a judge. However, I have

found that people often have different

definitions of what constitutes merit.

There can be little doubt that some

people who merit judicial appointment

are not joining the bench.

When Will Real Change Come?

McKinsey has researched and reported

on numerous occasions on the topics

of women and diversity, employee

engagement and talent and innovation.

They claim that diversity is essential for

innovation. The Bar could learn a great

deal from the approach of industry,

both in the US and in the UK towards

diversity. Is there a need or desire for

innovation at the Bar? Perhaps not.

Perhaps the Bar is content for things

to stay the way they have always been.

However, I submit that the Bar (as the

solicitors profession is being forced to)

has to adapt and change. External forces

including technology, immigration,

legislation, have and will continue to

disrupt the way we do business and

therefore the way we do law.

The Pressure for change

Research shows that women will need

to have 2.1 children in order for the

population to grow at the current rate.

If you restrict positions to white middle

class men then your talent pool will be

decreasing. If women have fewer than

2.1 children then we will have an aging

population. In the United Kingdom

women have 1.6 children. So there is a

pending demographic problem. We are

limiting the opportunity to bring talent

into business and into the law. There

will continue to be strong competition

from industry and the public sector

for talent. And when talented black

or female (or both black and female)

graduates are considering their career

options will they continue to consider

the Bar when they see a lack of diversity,

a lack of opportunity to progress in their

careers and achieve their life goals?

Quite simply they will either not come to

the Bar or will leave and go elsewhere.

If there are some people who think this

might be a good thing as it is a return to

how things were then I submit that they

would be mistaken. There is no room

for complacency. Young people simply

will not wait.

In industry there are various campaigns

to increase the number of women

on boards. In 2010 the government

commissioned Lord Davies of Abersoch

to find out what was preventing

women becoming board members and

to develop a strategy to increase the

number of women on the boards of

listed companies.

In September 2010 Lord Davies began

a consultation that included senior

business figures, women business

leaders, entrepreneurs, executive search

firms (headhunters), investors, women’s

networks and women who are just below

senior board level. His report Women

on Boards was published in February

2011 and set out 10 recommendations

to increase the number of women on

boards.

Its main recommendations were that:

all chairmen of Financial Times and

Stock Exchange (FTSE) 350 companies

should set targets for the percentage of

women they aim to have on their boards

in 2013 and 2015:

FTSE 100 boards should aim for a

minimum of 25% female representation

by 2015

chairmen should announce what

they intend to do to increase female

representation on their boards by

September 2011

all chief executives will review the

percentage of women they aim to have

on their executive committees in 2013

and 2015

The 30% Club

A 30% Club has emerged to work

towards achieving these goals. So is it

time for a 30% Legal Club? Why 30%

you may ask? Apparently it is at 30%

that a minority community stops acting

like they are a minority. So how would it

be if 30% of senior judges were female?

So is it time for quotas? No, they say.

Quotas are against the law. Quotas

lower standards. We only recruit on

merit.

At a recent seminar I was introduced

to the concept of “Targets with

27the barrister

Teeth”. Essentially, this means that

managers are set targets but are held

accountable for achieving those targets.

The accountability might include non

payment of bonuses if the targets are

not met. If you can’t stomach quotas

then how about introducing “Targets

with teeth” for Chambers, the JAC,

Chambers, the Bar, perhaps even for

the QC Appointments Secretariat. What

might these teeth look like? Well,

firstly chambers can make a public

declaration of its intention to increase

the representation of chambers. By

doing this you put your reputation on

the line. You can’t fail on it or people

will call you on it. It becomes as much

a part of your business goals as other

targets.

Individuals could be held personally

responsible and accountable for

achieving the targets. The tone from the

top is also essential as this ensures that

top people make it clear that diversity

is important. The demand from junior

barristers is there. If it proves difficult

to engage with the clerks then you can

find ways to reflect success in terms of

pay or rewards.

McKinseys report that whilst there is

a shrinking talent pool of home grown

talent. 55% of the best graduates are

women. When deciding where they

want to work some of these women will

be asking “is there anyone here who

looks like me”? There is the problem of

the leaking pipeline. Women are leaving

the professions. There are not enough

women in the pipeline to step into their

shoes. Urgent action is required now to

benefit the next generation.

Reverse Mentoring

At the same seminar I first learned about

the concept of Reverse Mentoring where

a junior member is teamed up with

a senior member. The idea is for the

senior member to walk in the shoes of

the more junior person. They tell their

seniors about their experiences and the

kind of help that they need. Wouldn’t

this be interesting at the Bar? I can just

see the role reversal between a pupil

and their pupil supervisor.

So how can we ever have change?

There are some Chambers who are

doing truly inspiring work in this area.

These Chambers could share their

stories of success. This is one of those

times when the competitive nature of

the bar can give way to collaborative

sharing of ideas. I often share success

stories (on a no names basis of course)

in my work as I go from one Chambers

to another assisting them with this

complicated matrix of policies they are

required to introduce and implement.

The Bar can make paternity leave

acceptable. Parenthood is a shared

objective. Both men and women need

time off to take care of family activities

and participate in family life. Chambers

can help dads to articulate what they

want and create a space for difficult

conversations about family choices to

take place.

Crucially, I think it is very important to

help everyone to understand how Black,

female and gay barristers feel and for

this to remain a key focus in all work

around diversity.

Caroline Newman LLM is a non-

practising solicitor, Principal Consultant

at Lawdacity, author of Legal Gold and

Chair of the African Women Lawyers

Association.

Language matters.

“Yes we can” helped

propel Barack Obama

into the White House,

just as “Read my lips

no more taxes” did

for the first President Bush. We all know

the different messages being given when

we use strident instead of assertive, or

stubborn instead of determined.

I'm particularly interested in the

way language is used in the law, in

the wording of our laws and in our

conversations about the law, and the

ways these words can undermine the

very purpose to which they are being

put.

My recent lecture at the London School

of Economics examined how our use of

words can greatly influence how people

think about human rights law.

I'm desperately sad that the ideals and

benefits of the human rights project

have been so badly misrepresented

by people, some of whom clearly have

their own axes to grind, but others

of whom really ought to know better,

including governments, and including

this government.

But just as words have been used to

vilify the human rights project, words

can be used to restore it. Indeed, this

government has a particular faith in the

power of language: the establishment of

the Government's 'Nudge Unit', whereby

simple language and imagery is used to

persuade people to make different and

'better' choices is evidence of this.

So, in this article I want to explore the

language of human rights to see whether

we can come up with some nudge words

and phrases to restore the confidence of

the public in laws specifically designed

to benefit them, individually and

collectively.

In the wake of the report of the

Commission on a Bill of Rights and

one of its conclusions: that there needs

to be 'better public education and

understanding of the present human

rights structures and their effects'1. I

hope to respond to that invitation, and

add to the necessary debate.

The myths we need to tackle are:

1. The European Convention and

Court are part of the European Union.

2. Our human rights law favours

the bad guys over the good guys.

3. Human rights law does not

reflect our traditions and culture.

4. The European Court of Human

Rights goes beyond its original remit.

5. The European Court of Human

Rights unacceptably challenges the

supremacy of parliament.

Taken individually:

1. Unfortunately, because

'European' features in both descriptions,

this is a misperception that those

wishing to cause mischief can easily

exploit. We can't change the words, but

we can point out that they are no more

connected than Her Majesty and the

performers of Bohemian Rhapsody.

2. Human rights are the rights we

have by virtue of being human, and they

belong to the virtuous and un-virtuous

alike. The American essayist H.L.

Mencken hit the nail on the head when

he wrote:

“The trouble with fighting for human

freedom is that one spends most of one's

time defending scoundrels. For it is

against scoundrels that oppressive laws

are first aimed, and oppression must

be stopped at the beginning if it is to be

stopped at all.”2

Much of the current debate focuses on

individuals or groups of people seeking

to affirm their human rights who are

perceived as, and may well be, bad guys.

This makes a good (and easy) story for

newspapers and phone-in programmes,

so long as it is presented as a version

of health and safety gone mad, and

Language and law: reclaiming the human rights debate By Lucy Scott-Moncrieff, President, Law Society

28 the barrister

29the barrister

politically correct idiocy, rather than

being presented, more accurately but

more boringly, as a decision on the

oppressiveness or otherwise of the

actions of the state in relation to the

individuals concerned.

I wonder if the words we use in talking

about human rights law may add to the

confusion.

Let's start with the word 'rights'. Rights

sounds like entitlements, sounds like a

sense of entitlement, sounds like self-

righteousness.

These are not attractive traits in

themselves and are even less so when

it is perceived that those claiming the

rights have little to justify any sense of

entitlement

And claiming rights also carries with

it a sense that the person doing the

claiming thinks that their rights are

more important than the rights of the

law abiding, ordinary, well-behaved,

majority of the population. 'I know my

rights' is not how properly behaved

people are meant to deal with situations

requiring compromise, as so many

situations do.

And despite what the tabloids say,

human rights law is alive to the need to

balance conflicting rights. But 'Qualified

rights' sounds like you have to qualify

to get these rights, and it seems like

its always the bad guys do. I doubt

'proportionality', is a frequent topic of

conversation on the Clapham Omnibus,

so I suggest using the more familiar and

sufficiently similar concept of fairness.

3. It has been argued that human

rights are alien to our culture and

tradition, and in particular our tradition

that rights carry responsibilities.

Well, yes and no.

Most of the ECHR rights were articulated

in England and the UK long before they

were in any other European country.

On the other hand, we do not have an

illustrious history in relation to equality

and minority rights and at least some of

this does seem to derive from our Judeo-

Christian heritage.

For instance Article 1 of the Universal

Declaration of Human Rights states:

“All human beings are born free and

equal in dignity and rights.”

But when Mrs Alexander, who wrote 'All

things bright and beautiful' included

the verse

“The rich man in his castle,

The poor man at his gate,

God made them high and lowly,

And ordered their estate.”

she was undoubtedly writing in the

Christian tradition, but hardly in

compliance with either Article 1 of the

UDHR or Article 14 of the ECHR.

As for the criticism that human rights law

fails to link rights and responsibilities,

this is simply untrue.

The Convention is saturated with

concepts of responsibility. Criminal

behaviour can lose someone the right

to enforce all sorts of rights, as can lack

of mental capacity to make responsible

decisions. Enforcement of rights can be

curtailed if to do otherwise would be

to allow someone to act irresponsibly

towards the rights of others, individually

or collectively, and the recent decisions

on freedom of religion are a good

example of this.

So let's speak about how our traditions,

and heritage, and linking of rights and

responsibilities underpin human rights

law, rather than being at odds with it.

4. The European Convention is a

‘living instrument’ and designed to grow

with the societies in which the people

it is designed to protect live and adapt

to changing circumstance. Of course it

challenges parliament – which is why

some politicians are so unhappy about

it – but that was always its intention.

5. David Maxwell-Fyfe,

Conservative Home Secretary in

Churchill's 1951 government, and a

member of the British team involved in

drafting the European Convention, was

happy to assert that “the Convention

superimposes an international code

on our unwritten constitution”. And

when the government in 1966 allowed

individual petition to the court it did so

in the knowledge that Parliamentary

decisions would be open to challenge.

But this is nothing new.

For 800 years we have recognised the

need to keep the power of government

in check.

30 the barrister

In the thirteenth century the king

was absolute ruler, but Magna Carta,

famous for articulating the rights and

freedoms of (some of) the population,

also gave the barons authority to

challenge bad King John if he went too

far. The Bill of Rights did likewise with

William and Mary, and the ECHR is

therefore following a long and glorious

tradition.

In a country like ours, with no

entrenched laws to protect the rights

of the people against the power of the

state, we have a particular need for

protections that cannot be overturned

through the ordinary parliamentary

process.

International treaties, ratified because

they reflect our values and priorities

as a nation, serve this purpose, and

we should be proud that they do so

and that we have governments that

recognise the value of limiting their

own power, however irksome they find

it.

So by unpicking these myths, we end

up with nudge statements that:

1. The European Convention and

Court of Human Rights are no more

connected to the European Union than

the monarch is to Messrs Mercury and

May.

2. Our fundamental freedoms are

ours as of right and no-one, including

the government, can unfairly ignore

them.

3. Our traditions and heritage,

including linking rights and

responsibilities, underpin human

rights law, rather than being at odds

with it.

4. Our human rights law grows

with us and our society, to continue to

protect us.

5. Our human rights law protects

us from an over-mighty state.

And, finally, our human rights law is

not about foreigners, or prisoners, or

asylum seekers; it is about us, and how

we think of ourselves, and what sort of

a country we want to live in.

By using words we have a (cheap) way

of getting people to think differently

about who does what and bring the

reputation of human rights law back

to where it belongs. At the heart and

foundation of a society we want to live

in and be proud of.

1 A UK Bill of Rights? The Choice

Before Us, Volume 1, p.176. For an in-

depth discussion of the Report of the

Bill of Rights Commission, see Mark

Elliot’s article in this issue.

2 H. L. Mencken, Baltimore Sun, July

26, 1920.

31the barrister

This year’s chairman

of the Bar Council,

Maura McGowan

QC, was recently

quoted (The Times

Law Section, 24

January) as saying that one of her main

challenges in the position would be “…

the prospect of competitive tendering…”.

As this is a potential game-changer for

the Bar it is an opportune time to review

the situation so far and look how the

response to this challenge might be

framed.

First, a little history. In April 2010

the Bar Council published its notes on

ProcureCos. This was followed, in June

the same year, by the paper ‘The Future

of the Bar’. Both were the culmination of

work by the, then, Chairman of the Bar

Council, Nicholas Green QC and were

predicated on the imminent arrival of

‘Best Value Tendering’ and ‘One Case

One Fee’ from the LSC.

That version of competitive tendering

for legal aid work was cancelled by Ken

Clarke in December 2011. Until then

there had been a deal of activity at the

Bar to prepare for its arrival sometime in

2012. For example, the Bar Council said

that there were “about 100 ProcureCos

being set up by barristers’ chambers”.

This was, probably, an exaggeration

although a small number of, principally,

criminal sets had attempted to construct

some sort of tendering body and were

trying to attract interest in them; with

little success.

Sadly, the details of the Bar Council’s

‘ProcureCo’ proposed structure were

fatally flawed as most astute readers of

it readily saw. Apart from the fact that

no-one had actually asked the LSC if

they were prepared to offer contracts to

such bodies the practical application of

it was impossible.

However, Nicholas Green’s work did

encourage a few, forward-looking and

entrepreneurial chambers to build

workable collaborative agreements

which are now being used with a

range of widely-differing clients. For

some chambers, engaged in large-scale

commercial work, similar arrangements

had been in place with clients for some

time. For most chambers, though, this

pioneering work stopped when Ken

Clarke kicked the ball into the long

grass.

Late last year the LSC, once again,

promised the arrival and operation of

BVT/OCOF for legal aid work and now

a consultation document is expected

sometime in the middle of 2013.

Perhaps now might be the time for the

Bar to begin thinking and preparing

for it rather than waiting until the last

minute or, worse still, doing nothing as

some at the Bar firmly believe that they

can overturn it? Laudable as it might

be it is also liable to be an unrewarding

hope given the state of the nation’s

finances, the unending need for the

government to cut costs and the total

lack of the general public’s interest in or

sympathy for the Bar.

To underline the urgency for positive

action a consideration of chambers’

finances might be illuminating. There

can’t be a barristers’ chambers in the

land, dependent on criminal work, that

hasn’t seen its income fall with fee

reductions, solicitors’ HCAs and the

CPS ‘in-house’ chambers affecting them

adversely. The new CPS prosecution

guidelines will see even more work

disappear. Given that about 80% of

chambers are dependent on publicly-

funded work for between 20% and

90% of their income the importance of

having new working arrangements with

many clients cannot be understated.

So, instead of fighting the unwinnable

battle, the well-known and highly-

regarded intelligence and intellect of

the Bar might be brought to bear on

the matter of creating a viable future

The Death of ProcureCoBy Ian Dodd, Bar Consultancy Network

after the advent of BVT/OCOF. Or,

maybe, the Bar would benefit from

doing it even if the unwinnable battle

is, astonishingly, won. In any event,

the longer-term war will be lost and

the Bar, acting now, might just end

up with some very smart, flexible and

profitable joint venture vehicles, bulk

contracting agreements and other, long

term beneficial arrangements.

One of the obstacles to progress might

well be that the Bar likes its status

as a referral profession and wishes to

preserve that. How much better, though,

to do that with a guaranteed volume of

instructions than to be reliant on them

arriving one at a time and, often, at the

whim of a solicitor late in the afternoon

before the case? In order to get there the

Bar will need to consider, construct and

implement some significant changes

to the way it works now. Times are

changing, for everyone, and many of the

pillars of the historical foundations of

the Bar are also being shaken.

Significantly, a recent report by the

LSB, conducted by two eminent, and

suitably qualified, academics reveals the

Cab Rank Rule for the obsolete and

redundant device it is. In the world of

commercial bulk contracting there will

be no room for such things and the

supplier of advocacy will need properly

to understand their relationship with

the supplier of work and act accordingly.

Some suspect the consultation on BVT/

OCOF will be no more than a charade

and that the MoJ already know the

answer. That might well be the case.

In which event we might also expect

that the structure they’ll use to effect

their desires will be that which they

published in 2010. Extensive and

exhaustive research and work went

into investigating and refining a

bidding procedure and two pilots were

scheduled for Greater Manchester and

Avon. This, surely, is the logical starting

place for the Bar to begin to build their

contracting vehicle.

The working infrastructure of chambers

will need to be changed to accommodate

and respond to the different demands

bidding for and winning a contract will

bring. Time spent in reconnaissance

is seldom wasted and a process

of preparation, including suitable

alternative strategies, would be time well

spent. Discussions with other chambers

and, of course, solicitors, to find the

best forward path might be encouraged

with a view to forging a sustainable and

profitable future for that part of the Bar

where legal aid income is important.

Since the launch of ‘ProcureCos’, nearly

two years ago, many solicitors have

risen to the challenge of the LSA. There

are nearly 300 applications for ABS

status being processed by the SRA. Few

if any, are from barristers’ chambers.

Solicitors have also embraced, with

enthusiasm, energy and investment,

innovative and, often, technology-based

initiatives to develop their businesses

for a very different future. Merger

activity amongst solicitors is at an all-

time high and, by and large, they have

left the Bar trailing in their wake with

their far-seeing activities.

It could well be far too late for the

Bar to leave their response to the

challenge of competitive tendering until

the consultation document is published.

Immediate action will bring positive

results.

32 the barrister

33the barrister

It is now called the Bar Professional Training Course (BPTC)!By Mohammed Saleem Tariq, LL.B (Hons) Law (University of Liverpool), BPTC BBP Law School Holborn

Introduction

The Bar Vocational

Course (BVC),

what was once the

main pathway for

students to fulfil their

dreams of becoming

Barristers, today hides in the shadow of

a less student friendly regime. The Bar

Professionals Training Course (BPTC)

introduces prospective students to a

grilling 12 months of brain zapping,

teeth grinding and dream crushing set

of bullet proof examinations. What was

every parents dream and every student’s

efforts now face their rock in the road to

becoming a Barrister.

Why Change

The transformation occurred as recent

as 2010 and is still undergoing some

nip and tuck to achieve the very best

from its students. The changes were

recommended in 2008 by Derek Wood

QC who chaired a working group that

carried out a review of the BVC and its

recommendations were subsequently

approved by the Bar Standards Board

(BSB). The desire to induct and nurture

more than able students to become

confident and able barristers was the

paramount aim when introducing the

BPTC.

The Change

The obvious change and the most blatant

is the name. What worries students

more is the standards they are required

to meet in order to graduate before

appreciating the further difficulties

involved with attaining pupillage. The

pass rate for today BPTC students

has increased by a discouraging 10%,

meaning every student must now attain

the pass mark of 60% in all examinations.

Many students, those who come to the

BPTC with distinctions and 2.1s in their

degree could be deceivingly unalarmed

by this for a gasping second or two.

However, there are two surprises.

First is the introduction of Short

Answer Question’s (SAQ’s). Students

will no longer be able to ignore the war

and peace of the Civil and Criminal

Procedural Rules when revising. The

sleepless night of memorising which

answer fits with a Multiple Choice

Question is archaic. Random pickings

and a lack of knowledge of these rules

will no longer suffice when hoping to

scrape a pass in these exams.

The second surprise is that the Civil,

Criminal and Professional Ethics

modules now require every student to

attain the 60% pass mark in both sections

of the paper. For those BVC graduates,

you read right. Professional Ethics is

no longer a single MCQ in the Civil and

Criminal papers; it has succeeded as

becoming an additional examination in

its own right to the tearing sadness of

prospective BPTC students1.

Should a student receive 90% in the SAQ

section and 59% in the section containing

MCQ’s, will then have successfully failed

the paper. There is no aggregation of

marks involved, unless what is being

sat is the Alternative Dispute Resolution

exam which today takes a similar format.

A score of 60 % or above is needed on

“both” sections to successfully pass that

paper. What makes these examinations

the most daunting of them all is the

fact they are now centrally set by the

BSB, whom consider the work given to

students of every BPTC provider before

setting a terrifyingly challenging paper

at the end of the year.

Whether BPTC providers are able to

make the journey less mind draining is

questionable. Taking the Opinion and

Drafting module examinations in the

BVC meant students had a full week to

perfect every sentence, question and full

stop. Having full access to a computer

and their resources is nothing more than

a fading hope for BPTC students. There

is discretion to allow students to take

the Opinion and Drafting examinations

home, as this change never formed part

of the 2008 recommendation. Why

make things easy now! Depending on

which provider the BPTC student is with,

34 the barrister

the student will have a 3 or 4 hour and

15 minute, hand written examination.

Opinion’s and Drafts would never be

given by Counsel in handwritten form,

but ironically a course that teaches

students the working life of a Barrister

decided not to incorporate this element.

I assume computers would be too

modern for use.

BVC students vs. BPTC students

Is there a payoff? Would the surviving

BPTC graduate find it easier to attain

pupillage? Would they be chosen

over a BVC graduate? Can those BVC

graduates compete with the mind and

skills set of those that went through the

BPTC? With the number of pupillages

going at an alarmingly low rate, and

the competition accumulating with

each year that passes, there is a need

to choose the best candidate. However,

things aren’t as black and white as

they may appear. In the year of failing

to enter Chambers as a pupil, those

BVC graduates may be found down the

road in the firm of a Solicitor, building

practical experience and sharpening

their skill sets. The aim for introducing

the BPTC may be washed away when

the pupillage panel interview a BPTC

graduate with no experience in his back

pocket and a BVC graduate with a year

of practical experience in the field of

choice.

Future

Being fairly new, the BPTC has already

stood witness to a change that saw the

BPTC provider setting the Civil, Criminal

and Professional Ethics examinations in

its first year of inception to now being

centrally set by the BSB. This change

caused an uproar of student complaints

after being introduced in 2011, which

then reached the comforting ears of

the BPTC providers. Questions with

multiple answers, questions that were

poorly phrased and questions outside

of the taught material were reviewed

with suggestive range of answers being

recommended and accepted in some

instances by the BSB. For students who

may disappointingly fail to pass the

BCAT test which is to be in place for

the class of 2013 need not lose grip of

their lifelong ambition. They may decide

to pursue the LPC, should the changes

to the BPTC not leave a sour taste in

their hopes, and progress on to a less

intensive conversion course to cross

qualify as a Barrister. For the moment

the BPTC may find itself going through

more changes as it finds it feet.

A. Banfield & J. Welsh, ‘Transforming

the BVC’, June 2010, last viewed on 11

December 2012<http://l2b.thelawyer.

com/transforming-the-bvc/1004683.

article>

1 It is worth noting at this point that the

module Legal Research no longer forms

part of the BPTC.

35the barrister

The real ‘hunger games’By Kent Alexander, General Counsel for CARE

Driving from Niger’s capi-tal Niamey to the town of Konni for five hours through the sand-swept, arid Sahel region, I lis-tened to the audio book

The Hunger Games. The novel opens with a scene of bleak poverty in a post-apocalyptic town called District 12. Dirt, grime, threadbare clothing, scarce food.

Looking out the window at the mud-and-thatch structures and the gaunt, colorfully dressed women floating by my window, I couldn’t help but think Niger was District 12 on steroids. Here, people are experiencing ‘the hungry season’, and it is certainly neither a novel nor a movie. It’s very real.

Still, I couldn’t help but smile about the difference people here are making in partnership with CARE.

Having joined CARE as General Counsel just last April, this is my first trip to a region deep in the throes of crisis. This is poverty as I’ve never seen.

The facts? Niger ranks 186th out of 187 countries on the UN’s Human Develop-ment Index, putting it in a dead heat with the Democratic Republic of Congo as the least developed country on earth. Most adults over 25 have precious little formal education, and an overwhelming majority are illiterate. Particularly hard

hit are Niger’s women and children, always the most vulnerable to pover-ty. Conflicts simmer on three border-ing countries. And among many other challenges facing Niger, a catastrophic drought is underway.

According to a recent report over 10 million of Niger’s 16 million citizens will run out of food stocks well before the next harvest, expected around October. All families have cut back on their food consumption. Most who I met are down to one meal a day.

The country is on the proverbial brink. Without help, many will suffer irrepara-ble physical harm; many will lose their lives.

How economically poor are the villages we visited in western Niger? Mind bog-glingly poor. When we arrived at Ayyawane hundreds of people gathered for a welcoming cer-emony. During the program, young chil-dren presented formal requests in enve-lopes to the group of visitors from CARE. Their number one request? Not toys, not new clothes, and certainly not a trip to Disney World. Drinking water. Water! This was especially striking because Ayyawane was by far the most ‘affluent’ of the villages we visited.

We toured Ayyawane and spoke with the mayor and other people about their lives and their very modest dreams.

Then, at the end of our visit, I saw some-thing that gave me a small but jolting idea of what poverty is like.

As we headed to the car for our depar-ture, dozens of young children crowded behind the Toyota and were uncharac-

teristically pushing and shoving each other. The tail gate was open, and the driver stood beside our cooler contain-ing a few leftover cold drinks from lunch earlier in the day. Philippe Leveque, the National Director of CARE France said, “Kent, this is the face of poverty.” Frank-ly, I thought he was overreacting a bit and said as much. After all, the day was broiling – over 100 degrees Fahrenheit. Of course the kids were elbowing in for a shot at a cold drink.

Then I took a closer look.

The cooler was shut tight, and the driv-er was not handing out drinks at all. He was handing out a few of our empty cans and plastic bottles. The cans were fodder for tin toy planes and cars to use or sell. The bottles were to be used as receptacles for months down the road when the rains finally come. The throng of children only dispersed after a man swatted at them with a stick.

Our trash was their treasure.

So the uplifting parts of the visits? There were certainly many.

While in Ayyawane, we visited a garden made possible by five wells that CARE had dug through the years. Outside the garden stood a huge grove of trees, greenery rarely seen in most of Niger. The mayor told us they planted all those trees with support from CARE more than thirty years ago, when he was just 11. The grove now serves as a ready source of wood for energy and construc-tion, which villagers maintain, planting new trees as they log. In another village, Bangoukoirey (please don’t ask me to pronounce it!), I saw one of CARE’s savings p.38

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and loan groups in action. Each of the three dozen or so women

members stepped forward to contribute their week’s savings of 500 CFA (1 U.S. dollar) or less into a pooled fund, which they could later use to make and collect small development loans. The president of the group, colorfully dressed in a green, black and blue striped robe with a purple scarf, told me she had been saving for six years. During that time she had used the loans to buy poultry, two oxen and a cart, and had repaid all the money with interest. But life was still hard. With the drought underway there is no longer money for the future,

and not enough for food and water now.

Back on the road, in the village of Mai-janjaré we went to a rock-hard, barren field with hundreds of three-meter-wide half-moon craters that stretched as far as the eye could see. It reminded me of some television special featuring land-scapes pocked with mysterious patterns allegedly left by some ancient culture or extraterrestrials. But in this case there was no mystery.

CARE’s Project Manager Nouroudine Pereira told us that the villagers, in-geniously, dug the craters on a gently sloping plain so that when the rains fi-nally do come the water will not simply wash over the baked terra cotta land-scape and flood the southernmost point. Each crescent captures the rainwater and becomes a garden, and the villag-ers harvest millet and other crops to sell and to store for the next hungry season.

But they cannot do this without money to buy tools and without food to sustain them. And unfortunately food prices have soared since last fall.

Enter CARE.

Nouroudine explained the details of CARE’s ‘cash-for-work’ program, and after showing us the field brought us over to the line of villagers collecting their payments. CARE pays each villager a very modest sum to dig 2 craters per day into the concrete-like soil and pro-vides the tools. This injects money into the economy, which people can use as

they see fit. A 36-year-old mother stand-ing in line spoke of how critical the pay-ments are to support her and her four children. Her husband is in the some-what more prosperous Nigeria (though still a lowly #156 out of 187 countries on UNDP’s Human Development Index), scavenging for work to send remittances home, although finding work is never guaranteed. On the other hand, the lack of food and water in Niger is very real.

On the long drive back to the capital city of Niamey, I listened to the rest of The Hunger Games and watched more vil-lages roll by. My mind wandered to the real life hungry season and the onset of a food crisis in Niger. Suzanne Collins’s book, compelling to most, seemed al-most trite as I thought – and continue to think – about how to make the crisis in the Sahel compelling to all those who will never see it firsthand. How to avoid a severe crisis like what we are now see-

ing in the Horn of Africa. How to pre-serve the development progress made to date through the efforts of CARE, other NGO’s, the UN, the government and the people. How to help the adults and chil-dren of the Sahel with such strong spir-its and determination avoid going be-yond the tipping point, when no amount of aid can bring them back.

For more information or to donate to the West Africa Food Crisis visit

www.careinternational.org.uk

p.35

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