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Archive for January 27th, 2010

Lawcast164: The legal basis for the Iraq War and Lord Goldsmith’s opinion with Carl Gardner

Today I am talking to Carl Gardner, a former government lawyer in Tony Blair’s administration and author of the Head of Legal blog, about the legality of the War in Iraq.

The legal analysis turns on United Nations Special Resolution 1441.  Yesterday Sir Michael Wood, Legal Adviser to the Foreign and Commonwealth Office,  was quite specific in his view that war would be unlawful without a second resolution.   The Foreign secretary, Jack Straw, rejected Sir Michael’s advice.  Elizabeth Wilmshurst, a deputy legal adviser at the FCO, was of the same view as Sir Michael Wood and, indeed resigned, so strong was her conviction that the war was unlawful.

Philippe Sands QC of Matrix Chambers and Professor of International Law at University College London has long been of the view that the war in Iraq was illegal and published a book to that effect some time ago.  There are few supporters of the revivalist theory put forward by Lord Goldsmith at the Iraq Inquiry hearing today – but Carl Gardner is one lawyer who does. The podcast is  a discussion between us rather than a traditional interview style podcast.

Listen to the podcast

iTunes version

Read Carl Gardner’s blogpost on this issue

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“All Change or Not” The Bar’s Roadshow hits York.

Jane Lambert
Barrister

NIPC Law blog

On 30 Oct 2007 the Legal Services Act received Royal Assent. Part V of that Act provides a legislative framework for legal services including advocacy to be offered by businesses consisting of lawyers and non-lawyers.  Since 31 March 2009 the Solicitors Regulation Authority (“SRA”) has allowed solicitors to practise in partnership or other association with barristers, patent or trade mark agents and other legal service providers and some non-lawyers. Such practices are known as “legal disciplinary practices” (“LDPs”).

Paragraph 205 of the Bar’s Code of Conduct precludes barristers from participating in LDPs except as employees unless they re-qualify as solicitors as that paragraph prohibits counsel from practising in partnership or companies either with solicitors or even with other barristers. However, on 20 Nov 2009, the Bar Standards Board (“BSB”), the Bar’s regulator, proposed changes to the Code to permit barristers to:

  • become managers of LDPs, regulated by the SRA without having to re-qualify as solicitors;
  • practise in more than one capacity at the same time e.g. as both managers of LDPs and as independent practitioners;
  • form barrister-only partnerships (BoPs), pending the creation of an appropriate regulator for such entities,; currently not in existence, and consultation by the BSB in relation to becoming such a regulator; and
  • practise through other barrister-only companies and limited liability partnerships (LLPs).

To bring those proposals to the attention of practitioners and discuss their ramifications, the Bar Council and BSB are holding seminars on each Circuit between 11 Jan and 2 Feb 2010 called “All Change or Not”.    My chambers manager and I attended the seminar for the North-Eastern Circuit in York on 19 Jan.

The York seminar took place at the station hotel and was addressed by the Chair of Bar, Nicholas Green QC, and Sarah Brown from the BSB. Given our well deserved reputation for cussedness (you can always tell a Yorkshireman but you can never tell him much) the speakers may well have expected a rough ride.   In the event, they were treated with great deference by the audience except by me.    Probably the reason for this is that they pressed all the right buttons.   For example, Nicholas Green told us that barristers were on average 20% cheaper than solicitors because we did not have to carry their overheads and that solicitors had probably suffered more from the changes to legal aid fees than had barristers.

While emphasizing that barristers would be free to take advantage of the proposed changes or leave them Green suggested four possible options:

  • members of chambers or other groups of barristers could form companies (referred to as “ProcureCos) which could bid for civil and criminal legal aid contracts from the Legal Services Commission (“LSC”) and other work and distribute it to the members and their pet solicitors;
  • barristers could become managers of LDPs;
  • barristers could practise part of their time as employees and part of their time as self-employed practitioners; or
  • barristers could form barrister only partnerships.

A handout to delegates explained that ProcureCos could be formed at once under the existing rules whereas practitioners would have to wait for the other proposals to be approved.    Since the LSC is expected to invite tenders for block contract work in February, the audience was urged to get a move on with setting up ProcureCos otherwise solicitors would scoop the pool.

Sarah Brown, one of the lay members of the BSB, announced a whole slew of other proposed changes to the Code including the following:

  • counsel instructed under the Public Access Rules will be free to conduct correspondence with solicitors, interview witnesses and settle witness statements;
  • the Public Access Rules will be amended to allow barristers to accept some criminal, family and immigration work without the intervention of a solicitor or other professional intermediary;
  • barristers will be free to attend police stations and interview clients there; and
  • the prohibition on barristers sharing accommodation with solicitors will be scrapped.

As a clear distinction is drawn in the Legal Services Act 1990 between advocacy and conducting litigation I could not help pondering whether some of these changes were actually within the BSB’s gift since collecting evidence and conducting correspondence strike me as conducting litigation.

Such thoughts prompted me to ask the first question which was in two parts:

(1)        how can a ProcureCo contract for work and sub-contract it out to pet solicitors and members of the syndicate without holding clients’ funds which has always been forbidden; and

(2)        if such companies were to manage client funds, how could barristers maintain the 20% cost advantage that we had been told that we enjoy since ProcureCos would require the same sort of accounting systems, bookkeeping staff and premises that solicitors appear to need, all of which cost money?

“Good question” mused Green before telling us that he did not think that a contract for say a million pounds payable quarterly really meant holding clients’ funds and that he was sure that our costs ought to be lower than solicitors’.   It would be wonderful if he is right – especially as I had to withdraw from a panel to provide business support services to new businesses in Bradford funded by the Local Enterprise Growth Initiative last year because the work would have required my instructing patent and trade mark agents – but the advice that I received at the time from the Bar Council was to the contrary.

The only other bolshie question came from Ian West from Middlesbrough.   “You all know me” started Ian (though to be quite honest I did not know him) “as I’ve served on the Bar Council.” He continued that he believed he represented the views of criminal practitioners who made up two thirds of the Bar.    Ian could see nothing in the proposed changes for him or for other criminal practitioners whatsoever.    He explained that solicitors get work through branches in every city and town in the region which enables them to attend police stations and mingle with the public.   ProcureCos can’t do that, said Ian.   He feared that the reforms would accelerate payment on the basis of one case one fee instead of ring fenced advocacy fees and our bidding for work through ProcureCos would alienate solicitors.   The Chair did not really answer that question beyond re-stating that barristers like him were not bound to change their working practices if they did not want to do so and that there would be an end to ring fencing whatever the Bar did.   On reflection, I am not sure that the criminal bar could not compete with multi-branch law firms.   I get work from running inventors’ clubs in Leeds, Liverpool and Manchester and intellectual property clinics throughout the North.   Could other barristers not work with local law centres, citizens’ advice bureaux and other local organizations in providing some pro bono services as loss leaders? Just a thought.

The meeting in York took place less than a week after Jackson and yet not a word was said about the report.    That was amazing since Jackson is concerned with costs and the whole point of the 2007 Act is to stimulate competition in the legal services market and so force down costs.    A few days after the seminar I attended the Chancery Bar Conference at Regents Park where both the Chancellor, Sir Andrew Morritt, and the Vice-Chancellor, Mr Justice Morgan, gave pretty strong indications that the Jackson recommendations are almost certain to be carried out whichever party wins the next general election.   They have to be because we as a profession are pricing ourselves out of the market.    Change is coming whether the Bar likes it or not and with all due respect to our eminent Chairperson I think we will have to do more than set up ProcureCos.

27 Jan 2010

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Below is a press release from Reprieve. I have extracted it in full.  The report runs to 221+ pages… I have read some of the more UK specific parts and will examine the document in more detail during the course of the day.

Our adherence to the  international rule of law was questioned by government legal advisers yesterday. Today, Lord Goldsmith will speak about his legal advice to the government on the Iraq War.  He may well be persuasive.  I tend to prefer waiting for all parties to speak before forming a final view.

This United Nations report is blunt. Reprieve has extracted the salient points below.  What do you think?  Do you feel that Britain is justified in ‘teaming up with unscrupulous, Mafia-like regimes that are in the habit of disappearing people’ as Clive Stafford-Smith says our government is doing?

Today’s United Nations report names and shames governments who have secretly held ‘ghost prisoners’ beyond the rule of law; the UK is exposed as complicit in snatching and torturing prisoners in the so-called war on terror.

The UN has today released a wide-ranging report on secret detention which will prove embarrassing for states like the UK who claim respect for the rule of law.

In this report, UN experts put the US-led “rendition programme” in context as another sad chapter in the history of torture and secret detention, alongside the 1970s campaigns of disappearances in Latin America, and the gulags of the USSR. And in case of any doubt, the UN sets out in unequivocal terms exactly why such practices are illegal.

In an investigation spanning 19 countries across all regions of the world, four independent UN bodies worked together to interview victims of secret detention and canvass governments in order to understand and redress the victims’ plight.

The findings make uncomfortable reading for the UK government who – despite their public condemnation of such practices – are revealed as complicit in war crimes like kidnap, secret detention, and torture.

Revelations include:

  • Confirmation that the UK knew about US renditions practices from 2002, yet continued to hand vulnerable prisoners to US custody with no process until well into 2004;
  • Confirmation that the UK knowingly received information obtained from prisoners being interrogated in US ghost detention;
  • Numerous cases showing that the UK took advantage of illegal secret detention practices over at least three continents by colluding in torture;
  • Unanswered questions in relation to the number of prisoners held by torturous Arab regimes at the request of the UK;
  • Indications that the infamous ‘Salt Pit’ in Afghanistan may have been run by the FBI.

Worryingly, the report indicates that the UK intelligence services lack the oversight that would prevent crimes like complicity in torture from recurring in the future. It recommends that:

“To ensure accountability in intelligence co-operation, truly independent intelligence review and oversight mechanisms should be established… such mechanisms should have access to any information, including sensitive information…”

The report warns of the dangers of intelligence services keeping secrets from the bodies that are charged with policing them; precisely this befell the UK, leading to the ISC’s ‘independent’ report on Rendition containing multiple, serious and embarrassing errors.

Reprieve Director Clive Stafford Smith said:

“Sadly, our government has teamed up with unscrupulous, Mafia-like regimes that are in the habit of disappearing people, using information extracted by violence, keeping secrets and protecting their thugs and cronies. It is shameful that it takes a UN report to reveal these shoddy practices to the British people. The victims are still waiting for an apology. ”

Reprieve investigator Clara Gutteridge said:

“The British government comes out of this looking like the War on Terror’s spineless ‘middle management’. It’s time to live up to our own – ancient – standards and refuse to work with regimes that torture.”

The full report may be read here: http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-42.doc

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Philippe Sands QC, a member of Matrix Chambers and professor of International Law at University College, London, suggested on Newsnight that following evidence about the legality of the Iraq war, Tony Blair may have to choose his travel destinations carefully. I won’t make any further comment on that for the present. (Apologies for typo in tweet as to spelling of Philippe)

Sands is the author of a book, Lawless World, in which he accused US President George W. Bush and Prime Minister Tony Blair of conspiring to invade Iraq in violation of international law.

I commented on yesterday’s proceedings at the Iraq Inquiry below: Breaking News: What will Jack do now? and Chilcot Special: The government did not like the advice of government lawyers

Today, former Attorney-General Lord Goldsmith appears before the Iraq Inquiry. On Friday, Tony Blair appears. I plan to do a podcast with ex-government lawyer Carl Gardner who is now author of the Head of legal blog tonight.

The invasion of Iraq was lawful

by Carl Gardner on January 27, 2010

“This blog didn’t exist when US and British forces, with others, invaded Iraq in 2003. I’ve never written directly about the legality of the war. But with Sir Michael Wood and Elizabeth Wilmshurst having given evidence to the Iraq inquiry yesterday, and Lord Goldsmith due to appear today, I think it’s time for me to address the issue.”

Press coverage: Guardian –  Lord Goldsmith got taxpayer help for Iraq war inquiry legal advice Chilcot inquiry: Lawyers expose pressure to give green light for war | Times –  Lord Goldsmith to face pressure over legal U-turn on Iraq war | Telegraph –  Government knew ‘no leg to stand on’ legally to go to war in Iraq | IndependentInvade and be damned: Foreign Office lawyers say advice on legality of war was ignored

As a postscript to yesterday’s testimony before the Iraq Inquiry, The Telegraph notes “Margaret Beckett, Mr Straw’s successor as foreign secretary, risked outrage by saying that Dr David Kelly, the government scientist who committed suicide after being accused of leaking secrets about the “sexing-up” of intelligence, would have agreed that Saddam Hussein was seeking to stockpile weapons.”

Tony Blair is due before the Iraq Inquiry on Friday.  Matthew Norman has an interesting piece in the Independent this morning

Matthew Norman: Irrespective of Chilcot, Blair will always remain a pariah

The former PM will never escape the verdict of the court of public opinion

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OTHER LAW IN THE NEWS TODAY

Frances Gibb, writing in The Times, reports

Gilderdale case prompts fresh calls to clarify the law on assisted dying

“One devoted mother who helps her sick daughter to end her life with tablets and morphine walks free from court with a suspended sentence. Another is jailed for murder, to serve a minimum of nine years, after injecting her brain-damaged son with a lethal dose of heroin. The two contrasting cases have reignited the debate over “right to die” and whether those who assist a loved one to end their suffering should be subject to criminal law. Both involved a loving parent who could not bear to see a child suffer. Both, therefore, were acts of mercy. But there were key differences: Frances Inglis’s son, Thomas, 22, who had brain damage, had never indicated an intention to die. His mother believed him to be in pain and could not accept an encouraging medical prognosis.”

I commented on this legalo-ethical debate in Law Review: Assisted dying, Barristers modernise (?) and standards in legal education. yesterday.

Victims’ families demand Edlington boys be named

The Times reports: “Pressure was growing on the Government last night to release the full findings of a confidential inquiry into the Edlington torture case. The Conservatives stepped up demands for the publication of the 150-page report and the Liberal Democrats are considering tabling an amendment to a Bill that would require the findings of all serious case reviews to be made public.”

It is easy to understand the anger of the families and the public in this shocking case. Mr Justice Keith rejected applications to lift the ban that prohibits identification of the two brothers and their family. He said that naming the boys could adversely affect their rehabilitation.  Was he right to do so?  Difficult though it will be for many, I think he was right to do so.  The children involved in this appalling and mindless, sadism are are the product of their backgrounds and part of our justice system in terms of penal theory involves rehabilitation.  There is also the issue of ‘vigilante’ justice being meted out when the boys are eventually released.   There are, it is believed, plans to consider prosecutions against the parents.

OUT-LAW reports:

Sky wins landmark ‘fraudulent misrepresentation’ ruling, HP vows to appeal

Hewlett-Packard has vowed to appeal a ruling announced today by England’s Technology and Construction Court that is expected to cost it more than £200 million. The case is one of the longest-running and most expensive disputes in the technology sector.  The OUT-LAW article is well worth a read. The judgment of Mr Justice Ramsey (500+ pages, one of the longest ever, is due shortly)

Misrepresentation seems to be the flavour of the week this week…. Today, The Independent has a story about deceit on the leafy banks of the Thames : Court battle after ‘garden flooded 80 times’

“A financier who bought a £1.9m family home on the banks of the Thames is taking the previous owners to court, claiming they failed to warn him that the garden flooded as many as 80 times a year. Adrian Howd and his wife, Caroline, claim that, before buying the house – named Tide’s End – their solicitors had asked Bobby and Nicola Console-Verma’s lawyers: “Given its position, please confirm that the property has never suffered from flooding.” The couple’s lawyers responded: “Our clients confirm that the property has never suffered from flooding during their 14-year occupation.” Dr Howd and his wife argue that this response was untrue and fraudulent. However, the Console-Vermas’ barrister Michael King insisted that the question was “ambiguous” and that they had reasonably taken the view that “property” meant “bricks and mortar”, not the garden.” (Independent)

Often very fine lines of interpretation decide the events of history as the Iraq Inquiry is now revealing on the legality of war issues.  It seems that this case may also turn on a fine line.

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Not a law blog – but Capitalists&Work is always worth keeping an eye on.

UK GDP Q4 2009; 0.1%

Wow, that is a poor number. So much for Labour going to call an election on the back of the ‘return’ to growth.

And crocodile tears for the BBC having prepared for weeks on the Government’s behalf a ‘we are out of recesion day special.’ (Love this headline, UK emerges from recession, repeat the BBC is not biased, the BBC is not biased….)

With all the talk of outsourcing work to lawyers in India, this post by Professor John Flood on his RATs blog is worth a look: Lawyering in India

John Bolch, Family Lore, looks at: Attitudes towards cohabitation

He notes: “I’ve just been looking at the press release for the British Social Attitudes (‘BSA’) 26th Report, which was published today. Along with the unsurprising news that fewer people in Britain feel an obligation to vote than at any time since the question was first posed on BSA in 1991, the Report has some interesting findings regarding attitudes towards cohabitation. Cohabitation, it seems, is becoming increasingly acceptable, with 45% of those questioned agreeing that it ‘makes no difference to children whether their parents are married to each other or just living together’, up from 38% in 1998. This rather contradicts those, particularly the Tories, who maintain that it is far better for children if their parents are married.”

Geeklawyer writes…Dear prospective advertiser number one million. Thank you for your interest

Geeklawyer thinks that the ambulance chasers will taint his blog! Geeklawyer is so fabulously rich from his practice at the Bar – he regularly taunts Criminal and Family practitioners about this on his blog and on Twitter  – in jest – that he doesn’t need advertisers.  He is in a fortunate position, indeed.  Thankfully, I am more than happy to allow advertisers to support our free resource projects on Insite Law – for otherwise it would not be possible to give all the comment on here and free resources on Insite Law away free.  I am not, unfortunately, as rich as CroesusLawyer!

Geeklawyer writes…

Dear Casabian,


I’d rather have my bol­locks chewed off by a bad tem­pered rot­tweiler with a taste for slow pain, than have a bunch of low-life ambu­lance chasers taint my site with their ads.

And just to show how appreciative I am that commercial organisations are for sponsoring the free resources on Insite Law  for students et al – I am delighted to say that Accidents Direct are supporting our project – so they can go on my header.  I am also appreciative of the support Wildy & Sons have given consistently over three years as I am to all the advertisers on Insite.  Lunch doesn’t come free in the world most of us live in and if barristers, solicitors, publishers, and other firms (as they are doing)  wish to help support the free legal web concept  – that is good for everyone and I am more than happy to assist them in return.


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