The Critical Lawyers' Handbook Volume 1
3: Critical Legal Practice
Michael Mansfield QC
legal practice requires definition. There must be a clear set of principles
which govern it and which thereby provide a target for the practitioner.
The most notable examples have been these: decisions restricting the right to collective protest and demonstration followed by the draconian measures contained in the Public Order Act 1986; the proposal to abolish the right of silence; the endorsement of the broadcasting ban and the requirement that journalists be forced to reveal their sources and, under PACE (the Police and Criminal Evidence Act 1984), to give up photographic and film material to the police; the abolition of the 'public interest' defence under the Official Secrets Act 1989; the trade union and employment legislation (Employment Acts 1980, 1982, 1988 and 1990; Trade Union Act 1984) which effectively emasculates any attempt at independent trade unionism; increasing limitations on the right to jury trial and legal aid; and endorsements of the government's Poll Tax philosophy which will eventually reverse the time-honoured maxim of 'no taxation without representation".
Almost in the same breath, support is professed for the struggle by Solidarity and Lech Walesa's shipyard workers in Gdansk (Poland); for Civic Forum and the force of mass demonstration led by Vaclav Havel In Wenceslas Square, Czechoslovakia; for the resilience of the young people of the Intifada, Palestine; and for the young people of the townships in South Africa who struggle to penetrate the emergency legislation and media censorship.
Mining communities in Yorkshire; print workers in Wapping; seafarers in Dover; black communities in Netting Hill, Tottenham, and Liverpool; nationalist communities in West Belfast; nurses, students and Poll-Tax protesters in Trafalgar Square will all recognise the familiar symptoms.
Bearing such an onslaught in mind, the critical lawyer who comes to the Bar must be prepared to speak out, preferably in a collective fashion, to halt the demolition of rights that have taken hundreds of years and lives to develop and sustain. It is instructive to note that the only time that many members of the higher judiciary and the Bar have been impelled to take a public and collective stand was not in relation to the erosion of these freedoms but in relation to the perceived threat to their territory posed by the Lord Chancellor's Green Paper on the legal profession. Then it was that reference was made for the first time to oppressive and authoritarian government and to little men sporting armbands and toothbrush moustaches.
In terms of collective action and analysis, the Critical Lawyers' Group provides the broadest forum for lawyers from many different fields and is to be encouraged to the full. To date there has been too much fragmentation of effort and too much division between academics and practitioners. Members of the Bar must be prepared to create close links with law departments at universities and colleges so that the problems may be jointly addressed.
Those within the profession must then actively endeavour to apply the critical principles to their work. There are numerous wars in which this can occur.
The casework undertaken should have particular regard to the needs of those who are least able to articulate or protect themselves, such as those subject to the complexities and arbitrariness of social security or immigration law; those intimidated by the police station interview; those victimised by corporate intransigence, and those isolated by racial prejudice.
The preparation of cases should disregard the traditional view of minimising contact with the client. It is essential that understanding and trust become the hallmark. In this way, much can be done to restore public confidence in a profession commonly seen to be Dickensian and obsessed with fees. Close co-operation with solicitors, early delivery of papers, careful research, collaboration with colleagues on approaches and points of law, regular In-house seminars on the latest developments in the law (such as the growth of judicial review): all are equally important.
These initiatives should help to overcome the traditional attitude at the Bar of insular individualism. The structure, method of working and organisation of the profession all contribute to this attitude, which gives rise to misjudgement, misunderstanding, pomposity and jealous competition. It is for these same reasons that, from a personal standpoint, I favour fusion, multidisciplinary partnerships and direct access.
There are other pressing reasons for currently examining how barristers operate. The main one is the recently reiterated threat to the provision of legal aid. This has been the hidden agenda in both the Green and White Paper proposals, which talk of flexibility and greater recourse to the private and voluntary sectors. Essentially, this heralds the importation of market forces and privatisation into yet another area of human welfare which is clearly unsuitable for measurement on the profit gauge.
It has to be remembered that there are already considerable areas where there is no legal aid in any event, areas which touch upon what is most important for most people and where they are most vulnerable - social security tribunals, industrial tribunals, sex and racial discrimination, inquests, planning and other forms of public enquiry.
The advent of new technologies allows for a reappraisal of chambers and the traditional working base. I would like to see the growth of consortia or amalgams, comprising banisters, solicitors, researchers, para-social workers and forensic science consultants, who through computerisation, fax and DX (document exchange) facilities would be able to establish branches in mayor cities. This is akin to the way some group medical practices have developed. Such ideas are sturdily resisted by the Bar at present and there is no prospect of implementation.
Without these options there are decreasing avenues open to the critical lawyer with limited financial resources. Deregulation may allow practice on a temporary basis from a library. The emergence of the mega-set (40-50 counsel) may give safety in numbers and commercial work may subsidise welfare work. Neither of these is palatable. The first merely reinforces individualism, while the second produces massive problems of internal management, identity and unity. Both options deflect energy from the task of persuading central Government to fund an adequate national service for legal welfare.
All of this has to be set alongside the real and similar difficulties facing organisations with related aims: Liberty (formerly NCCL), LAG, Amnesty, Justice, ICCJ, Interrights, Haldane Society, FRU, Community Law Centres and CABs. This should be a time for combination rather than a narrowing concentration on specialities.
It is also coincident with the imminence of new legal frontiers in 1992. There has been hesitancy, reluctance and resistance by British courts and lawyers to adopt the principles and codes of international status. This has been most obvious in the field of human rights. A deaf ear is turned in domestic courts to references to UN charters or European conventions. Few make use of channels of appeal at Strasbourg, but when they do, often from the North of Ireland, they frequently succeed. Britain has the worst human rights record at that court. Such cases have far-reaching effects in exposing serious abuse, particularly in the treatment of Irish issues. In one recent incident, the British government disgracefully used derogation to escape the con-sequences of a ruling (Brogan, December 1988).
Another important example which merits legal action both in the UK and Europe is the appalling conditions in British Prisons and the utter disregard for prisoners' rights. We have one of the highest pro rata prison populations in Europe, with consistent overcrowding above certified levels and lack of integral sanitation, combined with arbitrary internal discipline and absence of effective channels of communication and of discussion of grievances. Successive governments have steadfastly refused to invoke an enforceable code of minimum standards, despite its adoption by the United Nations in 1955, the Council of Europe in 1973 and the representations of the present HM Inspector of Prisons, the Prison Reform Trust, the Prison Officers' Association, the Prison Governors' Association, NACRO, the House of Commons All Party Committee on Prisons and the Howard League for Penal Reform. The courts have likewise rejected arguments derived from such sources as the European Standard Minimum rules. We now await with interest action on the recommendations of the Woolf enquiry on prisons.
facilitate these legal battles, it is essential to have association and
co-operation with European critical lawyers who can assist with cases
here and in the European Courts. Chambers should have links in Europe
and reciprocal arrangements with European lawyers.
This has serious repercussions for clients and cases. One fears that Lord Denning's recent pronouncements about capital punishment being the antidote to miscarriages of justice are not merely a reflection of his age but also of his class. At the root of some of the most recently cited examples of miscarriages of justice have been the strongly held beliefs and directions of the original trial judges and of those judges who have heard the subsequent appeals.
Two alterations far beyond those contemplated by the Lord Chancellor are required. First, a separate career structure via a judicial college for judges under the auspices of a Ministry of Justice. This would be a job on offer to school-leavers like any other. Secondly, the rationalisation of legal education and training so that students are not dependent on the chance of a pupillage and still more a pupillage grant or loan.
Qualification, however, is by no means the most serious hurdle. The present system permits only slow and limited expansion. Sets of chambers are over-crowded and normally only accept one or two new tenants per year.
CLG might consider promoting workshops for critical lawyers to discuss
the ways in which assistance with accommodation, libraries, finance and
management might meet the challenge of the 1990s, and ways to ensure the
application of an equal opportunities policy for women
and black entrants and for all those with limited resources.