The Lawyer as Political Actor

[Last night I gave the Annual Queen Mary University of London Law and Society Lecture. What follows is the text].

If you’re ever asked to speak about anything – a rare experience for me, I’m much more often asked not to – then it’s a good idea to start by asking yourself why.

There are other organisations in the UK that have a far longer history of engagement in the cause lawyerinh field than I do: the Legal Action Group, the Public Law Project, and Liberty. There are also specialist single issue litigators like Client Earth.

And alongside those practitioner led groups there are those very many organisations who are not focused on legal action but who routinely take legal steps to advance the interests of their client groups. Perhaps the most obvious example of this is trades union: so, a good example of a union that has been active in this sphere and from whom we will hear much more is the Independent Workers Union of Great Britain.

And then there are also those who fund or are funded to provide thought leadership in the field – as commissioners or publishers or writers. An obvious example is The Baring Foundation, which is publishing a series of papers on the Use of the Law by the Voluntary Sector.

I mention all of this for a couple of reasons. One is so that those who came along for a neutral survey of the field shall not leave this lecture theatre wholly disappointed. Another is by way of tacit apology to those who attended a seminar that I spoke at a month or so ago where I omitted to mention others in the field.

For my part, I enjoy the advantages and suffer the consequences of who I am. I came to what I do as a practitioner and the practice of what I do has the benefits of that stance – it’s a very applied sort of science – but also the short perspective of someone who is stuck in the trenches rather than the general surveying the scene from a hilltop. What I have is my own learned experience.

What does that mean for my comments this evening?

Well, I can speak with some authority on how I understand the zeitgeist, and the practice, of what I do. But, at least as I see it, it won’t be a good use of your evening for me to spend it coughing up semi-digested titbits that I’ve stolen from other people’s tables.

Sorry about that metaphor by the way. I’m sure you will have forgotten about it by the time you get to dinner.

So what are the things that mark out my own practice in this space?

I guess there are a few. Politics: the issues I have chosen to engage with have been at the heart of the political debate. Crowdfunding: I have raised well over half a million pounds from, I would guess, tens of thousands of individual donors. And I also want to say something about the Ethical component of the work that I do.

So I begin with politics.

My political engagement in the legal sphere predates Brexit. I started writing about tax avoidance – bringing to a then intensely political sphere the insights of a practitioner – in 2013. There are many privileges that come with being a barrister. And what I was able to do I was only able to do because I was at the Bar.

If you’re in a firm you have to be mindful of broader interests. This is true in a narrow sense.

Let me give you an example. Bill Dodwell, a very well-known and respected tax professional, and a partner at Deloitte, bravely spoke out about the Icebreaker partnership tax avoidance scheme and pointed out – rightly as it transpired – that the scheme was doomed to fail. It then emerged that another partner at Deloitte was acting for Icebreaker and Deloitte, as I understand it, was sued.

But not only a narrow sense. If you work in the field of tax avoidance and you talk about tax avoidance being morally wrong you might lose more clients than you gain. As I saw it, it was up to me to choose to take my own successful and lucrative practice and blow it up. But I might have felt a little dismayed had it been blown up by the guy at the next desk without my permission.

From writing about tax avoidance I was then asked by a campaigning group to help develop a case arising from the HSBC papers. I was asked whether it was possible to construct a judicial review case from HMRC’s actions around the Lichtenstein Disclosure Facility. That was a much criticised amnesty that enabled wealthy tax evaders to escape criminal punishment for tax evasion by paying a sum of money that was in many cases much less than the tax they had evaded.

From constructing a case for a campaigning group it is but a short step to constructing a case for yourself.

The first case I initiated was the case that became Gina Miller’s case. Just a couple of days after the Referendum, and having read what might fairly lay claim to being the most influential legal blog post of all time, by Barber, Hickman and King setting out the idea that (at least on one reading) the Supreme Court adopted in its landmark decision – I crowdfunded initial advice. And then the intervention styled as the “People’s Challenge”.

Since then I have crowdfunded a challenge to what I see as Uber’s VAT dodging – I think they have avoided some £1bn and are avoiding hundreds of millions of pounds more each year into the future. I am the Claimant in that action. More about this later. I have crowdfunded a challenge to the Electoral Commission’s investigation into Vote Leave’s spending returns. We say the Electoral Commission’s investigation applied the wrong test of law and was wholly inadequate on the facts. I am the Claimant in that action. We are about to file proceedings in a case against DExEU and HMT to seek to compel the production of certain internal analyses of the effects of Brexit on sectors of our economy. I am the co-Claimant in that action alongside Molly Scott Cato MEP. And next week I expect to launch further litigation.

These cases are, it need hardly needs to be said, right at the heart of where our politics is. And it may be helpful for me to talk about what that means.

It is, of course, a truism to say that you need to be mindful of the relationship between law and politics.

Of course, the law itself regulates that relationship. Judges can hardly be said to be oblivious to the question where their writ stops and the Executive’s starts. But it regulates it to a different end.

When the law regulates the relationship between law and politics it does so mindful of the proper constitutional division of competencies between judges and the Executive. But when you use the law in an intensely political sphere you have to use it mindful of its political impact. And the question, ‘what is the political impact of using the law in this way’ is a very different question to the question ‘is it constitutionally permissible for me to use it in this way’.

There are some important governance questions arising out of this which I will return to when I get on to crowdfunding. But, for the moment, can I just try and illuminate it by identifying some different reasons why we might use the law in the political sphere.

For myself, I can see four categories of case…

The first is litigation to change the law.

You try and strike down legislation by reference to some higher legal norm. Or you try and assert that the common law is wrong.

A good recent example of this might be the recent Employment Tribunal Fees case.

The second is litigation to compel compliance with the law.

There is a Client Earth case that sought to compel the Government to produce a Plan that complied with the Air Quality Standards Regulations.

The third is litigation to know the law.

Gina Miller’s case – who can trigger Article 50, Parliament or the Executive – might fall into this category.

And the fourth is litigation that pushes issues up the political agenda.

My Uber case is a good case example. The underlying case is very strong. But I recognise that the best way for tax avoidance by US tech companies to be addressed by Government is for HMRC to act. And so I try to raise the prominence of the issue so as to put political pressure on HMRC to act.

To a lawyer there is something of a hierarchy here: changing the law is obviously at the chest-beating, alpha-male end of the legal spectrum. Beyond that, you then have enforcing the law, knowing the law, using the law. But if you look at the examples I have given you will immediately appreciate that their political saliency is a very different thing from that legal hierarchy.

And the more your action is about using the law to advance political ends the further you move from a dimension where legal judgment calls should lie at the heart of your thinking. A small warning: this can be difficult to communicate to lawyers – as a profession we are not overly burdened by concerns about the limits of our intellectual competence. This requires deft handling.

In the States there is a much longer standing tradition of activist or cause lawyering. And there is an enormous literature about the extent to which legal actions, whose very raison d’etre can be to bypass democratic methods of achieving social change, can lack legitimacy. The literature sometimes suggests a happy conspiracy between judges and lawyers to change society in ways that lack a democratic mandate. And which can cause the law to ‘get ahead’ of a political consensus and create an unhelpful democratic pushback.

This is obviously a debate we, in the UK, mustn’t ignore. But nor should we ignore the very different context in which that US debate has arisen.

It arises in the context of a legal system that is more powerful than ours in constraining political action. If you read a biography of Louis Brandeis, perhaps the greatest cause lawyer of them all, you get a sense of laws routinely being struck down because they offend against the constitution. And you really are forced to ask questions about the legitimacy of the role given to judges.

But that’s not a tradition that most of us in the UK would consider we belong to. The political ambition of our legal actors is constrained by the fact that we don’t have a tradition of striking down legislative acts on the basis that they contravene a higher law.

Now, if I was giving a lecture on what good governance of cause lawyering looks like that would lead me on to a further discussion, about what successful use of the law looks like? How do you integrate your campaigning and your litigation? What legacy work you should prepare for and so on? Lisa Vanhala – who has also written for The Baring Foundation – has published a Case Study on this issue funded by the Paul Hamlyn Foundation. For those amongst you who are looking at this from an institutional, governance perspective, that’s a paper well worth reading.

But I, as I say, I am in the trenches. And that’s deliberate.

I want to be where the people are.

My insight – if you’ll forgive me for calling it that – is that the burgeoning interest in the law as a mechanic for achieving social change is very directly related to a growing despondency about the functioning of democracy.

As citizens, we are aware of the need for social change. We are inspired to deliver social change. But we feel a sense of helplessness when confronted with the question, ‘how do we deliver social change?’

Perhaps, in a globalised world, this is inevitable. The forces that have combined to deliver the world we have are incredibly powerful.

But it isn’t good. And litigation provides an answer, to me and I believe to others, to the question ‘what can I do?’

This is – I think – how the socially motivated lawyers amongst us should be thinking about the law – as a transmission mechanism. A way of giving voice to demands for action about the shape of our society.

That notion isn’t, perhaps, as radical as it might sound. A lot of our law is judge made – lawyer made – law. The lines it draws embed quite profound judgments about the nature of our society.

When we compensate those who are the victims of negligence we make an assessment about how society should respond to a world in which actions happen. We say, despite the inevitability of accidents, sometimes people should be compensated and sometimes not. That’s a value judgment made by judges about which different countries take profoundly different approaches.

These value judgements are there to be challenged.

The Good Law Project – through which I now do the work that I do – was my response to a perception that, with a Parliamentary opposition that was unable to put the Government under real pressure and a weakened fourth estate, there was an opportunity to look more to the courts to provide checks and balances to executive power. It looks for cases that touch upon the lives of ordinary working people and which are not being litigated by others in the field. It looks for structural cases, by which I mean not merely cases affecting large numbers of people but cases that affect the way in which the organs of society function.

I’ve mentioned the Uber case, and perhaps it’s the best example.

There is a widespread perception that we in the United Kingdom tolerate US tech companies, in particular, engaging in financially meaningful tax avoidance. We know from academic literature that this perception undermines peoples’ willingness to pay their own taxes: why would you when others won’t?

This all feels desperately unfair. It undermines trust in our institutions – who are they really working for? And in our politicians – all too easily portrayed as overly friendly with big business. And, ultimately, it drives a desire for revolutionary change, and delivers seismic shocks like Trump and Brexit.

In my own field, I believe that perception has, at the very least reasonable, foundation in reality. There is good evidence that large US tech companies pay substantially higher amounts of corporation tax in other EU jurisdictions than they pay here. Those differences cannot be explained by different rates or structures or tax laws or other objective factors of which I am aware. These differences are reported by our national media which, in turn, adds to public distrust in the establishment.

I know that there will be many of you sitting in your seats who will see the intellectual case that I am making but won’t really feel it. It won’t resonate for you. People like us don’t understand how your experience of the establishment in the United Kingdom is conditioned almost entirely by whether you are of it. If it has worked for you, if you have experienced it all your life as reliable and beneficent, then the points I am making will not resonate with you. But there are many who experience the Establishment very differently – they experience it as disengaged and existing for the benefit of others. And in my own sphere I think that experience is justified and I want to articulate that experience for those people. And I want to articulate it for them with the only mechanic I really understand. That feels to me like a moral duty. That’s where I am.

And if you hear that mission – and you ask yourself the question whether that is a political mission or a legal one – well, it’s pretty clear what the answer is.

There are echoes in all of the 1958 quote from Eleanor Roosevelt with which Neil Crowther begins his paper for the Baring Foundation.

“Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination.”

Can I move on?

Zeus cast a thunderbolt at me on the day when – a tax QC who has done one legally aided case in his life – I stand here and opine on the effects of legal aid cuts on access to justice. I’m not qualified; it’s not the world I occupy. I have no direct experience of the issues those cuts engage.

But I am in a position to talk about crowdfunding.

Might just be useful for me briefly to run through the process before I talk about the problems.

It looks like this.

I have a few areas of interest I tend to focus on. Alongside Brexit, there is tax, employment rights, intergenerational fairness, welfare law, immigration and housing.

If I find a case in one of those spheres that’s interesting I tend to try and take an informal sounding from a leader in the field at the Bar. The Bar is collegiate and there’s a curiosity about the work I do that means people will take my call.

If the noises are positive, I then discuss with the barrister in question how it would work.

I think it’s important that people are paid for the work that they do. I think that’s right as a general proposition but it can also be important if you want people consistently to deliver high quality work. That having been said, I also think it’s important that work in this political sphere isn’t seen as a feeding trough for lawyers. You have to be responsive to the politics of the situation. I try and balance those two interests by paying Government rates. (How much of a raw deal they represent to the lawyers in question rather depends on their specialisation.) I also explain the vagaries of crowdfunding – that there will be instances where I ask people to do work without the certainty that they will be paid for it. There are times during the process where it is just impossible to ask funders for more money.

If that works for the lawyer I am doing, I usually ask for short form formal advice on prospects. We know that there can be no certainty about outcome. But if you are asking people to dip their hands into their pockets to fund a case you need to be able to justify that decision to yourself – and to them.

Typically I launch a crowdfunding bid after I have received that advice but before we issue proceedings – usually at the letter before action stage. That seems to me to strike a reasonable balance. Earlier and the action is too speculative – later and I am not in a position to issue proceedings when I get a response from the Defendant. That having been said, I am presently personally part-funding a rather important piece of litigation that I don’t want to put into the public domain until we are further down the road.

If I have co-claimants I offer them a personal indemnity against adverse costs. I do that for a number of reasons. Generally I am wealthier than they are. And it is also true that, usually, I have asked them to be a co-claimant and it is easier to persuade people if they know they are not bearing financial risk. But more important than either of those two factors is that I understand the risks better than they do. In those circumstances, it seems wrong to me that they should bear those risks.

There are lots of different views about how much you should crowdfund. Lots of people try and raise very substantial amounts of money at the outset, which is typically when interest is high. So you get never-ending stretch targets. I understand the temptation to do that but there are a number of factors which can argue compellingly against that course of action.

First, reputationally, it’s quite difficult to return money to people. And if the litigation doesn’t progress as you would like, it can be quite awkward if you have to tell people both that you are ditching the case and that you can’t return their money. Second, I think there is value in putting yourself in a position where you have to make an ongoing case for people to support the litigation. That feels to me like a useful discipline; in governance terms a healthy alignment. And, third, it encourages you to be less disciplined than you might be, if you were spending your own money, about cost control.

It’s a slight side note, but there are several ongoing crowdfunding cases where people are raising for only very vaguely specified pieces of legal work which, because they are only vaguely specified, are of indeterminate value to the funders. I am uncertain about the propriety of those crowdfunding exercises – and the premise upon which the lawyers who are getting paid from their fruits put their names to those exercises.

Leave that aside, even if you have the capacity successfully to crowdfund, there is one very real problem that we are going to have to get to grips with: and that’s adverse costs.

It is possible to seek to raise, by way of crowdfunding, your own costs. Depending on the attractiveness of your ‘pitch’ and the amount you are seeking to raise you may succeed. It is also possible to seek to raise a sum in respect of the other side’s costs. But there are a number of difficulties.

First, you cannot know what the other side will spend and so you do not know what you might need to raise. And, as I’ve already sought to explain, there are difficulties in returning money if you over-raise.

Second, if you don’t raise and find yourself in a world where adverse costs matter it’s generally because you’ve lost or are throwing in the towel. That’s not a world in which it’s terribly easy to raise money: ‘come and rescue me from the consequences of this litigation’ is a difficult pitch.

Third, the other side’s costs might far exceed any sum that you might raise. It’s a matter of public record that, in the Uber litigation, I gave evidence (which Uber did not contradict) that, given Uber’s value is around $70b, and its liability exceeded £1bn, it was perfectly reasonable to anticipate that its costs could top £1m at first instance alone. I could not raise that sum of money.

Fourth, as I understand it, the case law on protective costs orders is not designed for a world of crowdfunding. If you’re raised money from 3400 backers – that was how many contributed to the Uber case – whose resources do you take into account in considering whether a protective costs order is appropriate? The question, who is the claimant, can’t be the answer. It could very easily be any of those 3400.

Crowdfunding can’t replace legal aid. If you have a very strong presence on social media and you are happy to leverage it to raise money Crowdfunding is a powerful tool.  And it’s very useful in governance terms if you want to take cases where the people are: if they won’t fund the case, perhaps you’re not where you should be. But it doesn’t work so well for individual cases. And if it is to stand in for legal aid work in broad public interest cases – like those I pursue – these wrinkles will need to be ironed out. I would very much like Government to do so. But they may need to be addressed in the courts.

Finally, because I want to leave some time for questions, I want to touch briefly on the ethical implications of working in this sphere.

Anyone who has looked at my twitter account will see that I attract at least my fair share of criticism. This was, initially, pretty uncomfortable. Lawyers are not used to it. But I think you have to accept that if you step into a different sphere of activity you have to play by their rules. You can’t insist upon your own. Speaking for myself, I don’t think the fact of being vigorously criticised raises ethical considerations. But it certainly does encourage you to be thoughtful about your behaviour.

What I don’t want to do is use this platform to defend my practice. What I do want to do is try and identify a couple of issues where, I have felt that I might have benefitted from some guidance, to help light my way.

Obviously there are questions of political judgment about what cases you take. I have discussed those issues. But they are questions of judgment it seems to me rather than ethics. If you get them wrong, people might be entitled to describe you as stupid. But, without more, they’re not entitled to describe you as unethical.

However, there are obvious ethical considerations for any lawyer who asks people to fund a case. And it goes without saying that that is especially true if you are one of Her Majesty’s Counsel. Whatever language you use there are, it seems to me, embedded representations to people who may not be sophisticated in the very fact of who it is who is asking for money. These are ethical and they are reputational and, I think, you have to be mindful of both.

And I think the same is true if you are a lawyer who is the beneficiary of a crowdfunding exercise. I think you have to engage rather more actively than you might presently do if you have a ‘normal’ client. There is an interesting question for a trust lawyer about who owns crowdfunded monies. But fundamentally, whatever its legal status, it needs to be carefully stewarded, as if you owned it. And that is difficult if it isn’t (meaningfully) the steward’s money.

There are certainly opportunities for abuse in cases where the work is open ended, the issue is one of profound public concern and you have an unsophisticated ‘client’ promoting the case who is not spending his or her own money: ‘do you care about this? Give money to be spend on this vaguely defined legal stuff.’ You, the lawyer, can find yourself (in effect) as both client and lawyer spending or earning unowned money. That feels uncomfortable to me.

The only other point I want to mention is a longstanding and familiar debate around judicial activism. That is an important debate. And the closer you sail to the political wind the more obvious is the need to have regard to where the line is drawn. The rule of law is both bulwark against public opinion and contingent upon public opinion.

My reading of the decision of the High Court and the Supreme Court in Gina Miller’s case is that it was acutely conscious of both of those aspects of the rule of law. I think there are things that it didn’t do that it should have done and would have done had it felt the rule of law was less imperilled by public opinion.

Thank you.

 

One thought on “The Lawyer as Political Actor

  1. Pingback: The Lawyer as Political Actor | Waiting for Godot – leftwingnobody

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