A Lawyer Speaks Joshua Rozenberg

The challenge for the courts is making the most of new technologies and practices without losing sight of what worked in the past, a justice of the UK Supreme Court said yesterday.
In a lecture called Breathing Life into the Law: Achieving Access to Justice in the Modern State, Lady Rose of Colmworth said the best way of achieving this was a blend of creativity and conservatism.
“Like Moses and Jethro,” she said, “we must innovate without impairing the quality of justice being dispensed.”
Rose was delivering the Lionel Cohen lecture, which has been given annually at the Hebrew University of Jerusalem by a series of leading legal figures over the past 70 years. It was set up in honour of Lord Cohen of Walmer, the first Jewish law lord, who sat in the UK’s highest court from 1951 to 1960.
The lecture, sponsored by his family, is organised by the British Friends of the Hebrew University. It was well attended yesterday by members of the law faculty at the university’s Mount Scopus campus.
An edited text of Rose’s remarks will be published in due course. In the meantime, you can listen to the lecture as delivered by clicking the button above. You can also download the audio as a podcast.
* Note to readers: this is not the podcast I announced after the BBC decided to stop broadcasting Law in Action on Radio 4. Plans for that project are well advanced and I hope to announce more details at the end of June. The podcast itself will be launched in the autumn.
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Any move towards withdrawing from the European Convention on Human Rights (ECHR) would risk damaging the UK’s trading position, a former president of the human rights court argued this week.
Robert Spano, now an international business lawyer, was speaking to me on Tuesday evening at a public event sponsored by the law firm Gibson Dunn, where he is a partner.
Hours later, the Telegraph reported a claim by the former defence secretary Ben Wallace that the ECHR had become a threat to national security. His argument seems unconvincing, I say at the start of my column for this week’s Law Society Gazette. But most of the piece is devoted to reporting and analysing Spano’s comments.
The event on Tuesday was entertainingly introduced by Lord Falconer of Thornton, the former Labour lord chancellor who is also a partner at Gibson Dunn. He asked the first question.
I sent a recording of the interview to my paying subscribers on Wednesday morning, together with a summary of Spano’s comments. The recording is now available to all as a podcast, which you can download from this page and listen to in the normal way.
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Lord Pannick KC is undoubtedly the UK’s leading lawyer in his chosen field, public law. Perhaps best known for winning the Brexit and prorogation challenges that Gina Miller brought against the government in the Supreme Court, he is currently defending the government’s Rwanda asylum policy in the Court of Appeal while representing Boris Johnson in the Commons privileges committee.
He and I discussed these cases and much more at a fundraising event last Thursday for Support Through Court, a charity that helps people who face court alone to represent themselves to the best of their abilities. The event was introduced by Lord Dyson, a former master of the rolls, who also spoke at the end.
I published a video recording of the discussion on Friday but I thought it would be useful to make the recording available as a podcast that readers could download and enjoy at their leisure. Click the ⏵ symbol to start.
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The justice secretary Brandon Lewis said this afternoon he would defend judicial independence “to the hilt”. But, discussing reform of human rights, he stressed that parliament was sovereign.
Lewis was speaking at at a meeting arranged by the think tank Policy Exchange at the Conservative party conference in Birmingham.
You can listen to the lord chancellor’s remarks by clicking the button at the top of this page. I have edited a couple of the questions from the floor. The meeting was chaired by Lord Godson in a marquee that was far from soundproof.
Transcript
Here is a transcript, slightly edited for clarity, of what the justice secretary said. If anything seems unclear, please check the audio.
It’s a great pleasure to be here with Policy Exchange. As Dean [Godson] rightly outlined, I’ve had the honour of talking to people in Policy Exchange events over the years and everything from local government through my time at the Home Office, and as chairman of the party actually and, obviously, in Northern Ireland. And now as lord chancellor, it’s good to have an opportunity to talk to you a bit about what we’re looking at, and what the plans are as we move forward.
And yes, we do still wear robes as lord chancellor, as I found out on Thursday. Having started off thinking that maybe things have moved on, I found out at my swearing-in that you still wear robes and my 19-year-old daughter will eventually forgive me for putting on a wig and a pair of tights on Thursday, and then putting it on Instagram — which I will be going back to do again tomorrow because we have the opening of the legal year. So I'll be heading back to London for that before coming back.
Because I actually do think one of the things that we will focus on — and I'll talk a bit more about this later in the conference week — we have in our country something to be very proud of which is a world-leading legal profession. Legal services in this country actually are fundamental to everything we do across a wide range of areas.
And I think sometimes what some of us may think are occasionally antiquated and a bit odd — these ceremonies and services that we do — actually are really quite important, I think not only to remind the rest of all but ourselves about the history of our law and how it has evolved, and how it continues to evolve to reflect what we need in society. And that will continue as we go forward.
And that’s where we are, I think, when we start to look at human rights reform. It was our 2019 manifesto that specifically laid out that we will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We need to do that. And we need to be sure that we do that in a way that reflects our wish to reduce the ECHR’s influence in our system, whilst making sure we retain our other manifesto commitment that is hugely important, which is to remain a champion of collective security, the rule of law — which obviously I have a job to protect — as well as human rights, free trade, anti-corruption efforts, and a rules-based international system.
And we took more action on some of this just this week, particularly with regards to anti-corruption efforts with Putin’s regime and those who purport to support it.
There is a range of options for us as we go forward to explore in this area of human rights if we want to govern according to our manifesto pledge and remain absolutely true to what we promised to the people who voted for us in 2019. We do need to make sure that we are addressing, and dealing with, section 2 of the Human Rights Act — the obligation to take into account Strasbourg court jurisprudence — we need to give consideration to a tighter approach that limits creativity whilst encouraging our domestic courts to have the ability to diverge from Strasbourg case law more freely, that UK courts have prima

This isn’t a political blog so I’m not going to make any tired references to the cover-up being worse than the crime or history repeating itself as farce. I realise that the current threat from the Omicron variant is no laughing matter. But that, of course, is why it is so important for the prime minister and his government to maintain the confidence of the British people.
The leak of a rehearsal on 22 December for the No 10 press conferences that were subsequently abandoned has persuaded most people that there was indeed some sort of party in Downing Street on 18 December, at a time when London was in a tier 3 lockdown. That meant gatherings of two or more people in an indoor space were prohibited, subject to exceptions. Did any of those exceptions apply to the party?
That was what I was asked in a live interview on Radio 4’s PM programme two days ago, on 6 December. You can hear the item by clicking on the audio link at the top of this page.
The story was presented by Evan Davis in a deliberately lighthearted way. That was the programme’s editorial choice but one I thought was entirely appropriate.
How could Downing Street defend itself, Evan wanted to know. The government had a number of options, I replied, and it couldn’t be blamed for not showing its hand at this stage.
The first was that there are exceptions in the regulations for what are called permitted organised gatherings. These cover meetings on the premises of a public body. The working areas of Downing Street must surely come within that definition.
My next suggestion was that the event might have been one of the gatherings necessary for certain purposes that are exempted under the regulations. These include a gathering that is reasonably necessary for work purposes.
Evan appeared unconvinced and asked me for my clincher. This had been suggested earlier by Adam Wagner, the barrister who has made it his job to understand the regulations:
The Public Health (Control of Diseases) Act 1984 is the act of parliament under which all these regulations were made.
Section 73 of the act deals with Crown property. Subsection (4)(d) allows a government department to agree with the local authority that a specified and relevant provision in the act should apply to that property.
I take that to mean that the government department responsible for 10 Downing Street — the Cabinet Office, I suppose — could agree with Westminster City Council that the lockdown restrictions would apply on its premises. Assuming no such agreement had been made — and I would be astounded if it had — then government premises are exempt from the regulations.
One rule for them and another for us? Not really, I told Evan: you can’t expect ministers and officials to run the country from home. I was less willing to defend the suggestion that other government staff were invited to visit No 10 and join the party.
Finally, I explained that, under section 64A of the 1984 act, a prosecutor has six months to bring a prosecution “beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to the prosecutor's knowledge”. There is an upper limit of three years from the date of the alleged offence.
The barrister Matthew Scott published a detailed blog shortly after my broadcast, which he had clearly been working on for much of the day. He concluded:
If the party was confined to the government rooms and offices in the “official” parts of No 10, it probably did not breach the criminal law, even though it was in flagrant breach of its spirit, as well as of the official advice and guidance, much of it emanating from the prime minister himself.
I think that sums it up rather well.
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Better still, as the festive season is upon us:


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Baroness Hale spoke yesterday of her “huge admiration” for Israel, a country she has visited at least half a dozen times for judicial exchanges and academic seminars. Her unscripted remarks — which you can listen to by clicking the podcast symbol above — were made after the former president of the UK Supreme Court was made an honorary doctor of philosophy by Bar-Ilan University, near Tel Aviv, for her “outstanding efforts on behalf of women and minorities” and her “dedication to the protection of democracy and basic human rights”.
Because of Covid travel restrictions, Hale’s PhD (hon) was awarded to her at a small ceremony in a London garden. It was hosted by Romie Tager QC, on behalf of the university. Professor Ruth Halperin-Kaddari, founding director of the Rackman Center for the Advancement of the Status of Women at Bar-Ilan university law faculty, sent a message of support.
As well as paying tribute to what she described as the deep intellectual tradition of Israeli lawyers, Hale spoke of the three Abrahamic faiths:
Those three religions have more in common than they have separating them — although there are important things that separate them. But one are the things that they have in common is a problem with women.
In a recent conference organised by Halperin-Kaddari, Hale and other speakers looked for what she called “sensible, sensitive ways” of addressing that problem.
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