The retired Lord Justice of Appeal has his finger on the pulse of the profession as old battles over funding and vested interests are waged
‘Stop making faces,’ says Sir Henry Brooke to his wife when I ask what convinced the retired Lord Justice of Appeal to join Twitter in 2013. ‘She doesn’t believe in any of it,’ he adds, laughing. ‘I was intrigued as to what Twitter was. I’ve always been interested in IT; 30 years ago I started kicking the Bar and judiciary into the IT age.’
‘Interested in IT’ is something of an understatement when you consider Sir Henry’s history. The ex-Fountain Court barrister chaired the Bar’s Computer Committee in 1985 and was a founding member of the Information Technology and the Courts Committee. He was also a major player in the formation of BAILII, a former president of the Society for Computers and Law, and author of numerous papers on law and technology.
Sir Henry is a technophile. Nevertheless, he admits to becoming frustrated by the social media network’s 140-character limit. Thus, in 2015, the idea was hatched to launch his own blog, free of Twitter’s constraints. Was he surprised by the legal Twitterati’s positive response to his online ‘musings’? ‘I thought it was a bit of a risk when I started,’ he replies. ‘I feared it might blow up in my face, but on the whole people have been very kind.’
‘Kind’ is another understatement. In an article for Solicitors Journal earlier this year, Twitter’s lawyer- in-chief, David Allen Green, said he would not be surprised if the former judge’s blog went on to win awards, while barrister Andrew Keogh has described Sir Henry’s writing as ‘beautiful’. Just two of many endorsements of the ex-judge’s contribution to legal blogging. In October, Sir Henry’s blog celebrated its first birthday, and has recorded nearly 50,000 views and visitors from 149 different countries since its launch. Add to this his almost 6,000 Twitter followers and it is safe to say that the former chairman of the Law Commission has become a force within the legal commentariat.
For some, it is a shame judges usually wait until retirement to voice their true feelings on the legal profession, the justice system, and the politics which they are both subjected to. For the former vice president of the Court of Appeal, however, the reluctance by judges to tell all is ‘quite right’.
‘Anything anyone says these days is likely to be construed as a perceived bias,’ he tells me. ‘It is just too dangerous.’ Especially, he suggests, when the press is concerned. Lord Mackay’s freeing of the judges by scrapping the Kilmuir ‘rules’ in 1987 was not the panacea to the transparency issues then affecting the courts, says Sir Henry, who explains how he stopped reaching out directly to journalists after an ‘episode’ in 1994. He and a number of his brethren had spoken to David Rose of the Observer on what they thought, says the judge, ‘was supposed to be a serious follow up piece to do with sentencing remarks’ from Lord Woolf.
‘We wanted to make clear that what Harry Woolf was saying was absolutely mainstream within judicial circles. I don’t blame anybody but our quotes got into the hands of the news desk and it ended up on the front page – six judges against the home secretary, politicising what we had said. We were always warned of the dangers of sub-editors, however much one trusted the journalist. That killed any inclination I had to be more open while on the bench.’
He recalls how Peter Taylor, the then Lord Chief Justice, introduced the principle whereby only the heads of division, resident judge, or appropriate senior judge should speak to the press, rather than just ‘any judge shooting from the hip’, which, to Sir Henry, ‘seemed to be a sensible compromise’. He may well be right, as any judge willing to enter into politically charged debate is likely to be tarred with the brush of ‘judicial activism’.
‘Politicians have been more inclined to attack individual judges, and certainly the tabloids have increasingly done so over the last 20 years, but I don’t think judges have changed very much,’ he says. ‘The last judgment I wrote was with David Neuberger and Tony Clarke on the Afghan hijackers case. Tony Blair was prime minister and he had had a go at Jeremy Sullivan, the High Court judge who had decided the case the first time around. When it reached us we said Jeremy was completely right.’
Considering the constant attacks on judges in the media and in parliament, I ask Sir Henry whether he feels the public still has trust in the judiciary. ‘A recent public opinion poll of trustworthiness showed judges were fourth, right up at the top, lawyers were a good deal further down, politicians were down further still, and journalists were at the bottom,’ he replies with a wry smile.
‘I did see a significant change when Geoffrey Lane stood down as Lord Chief Justice. He was very old school and wouldn’t talk to the press. If they or politicians got their understanding of a judgment wrong, then more fool them. He thought it much safer just to get on with the job. But the way he expressed his judgment in the “Birmingham Six” case was bad PR for the judiciary.’ Lane’s successor, Sir Peter Taylor (later Baron Taylor of Gosforth), was ‘a much more natural communicator’, says Sir Henry, and upon his appointment he set about taking advice on improving the judiciary’s image. ‘The ratings went up, the public could see likeable judges doing a difficult job and we were willing to talk to the press on appropriate occasions.’
Unlike other judges who, upon retirement, have shunned the legal limelight to improve their golf handicap, Sir Henry has kept busy, busier perhaps than he gives himself credit for. He remains involved in several charities, including the Public Law Project, the Harrow Law Centre, and the Prisoners of Conscience Appeal Trust. Until last year he was president of the Slynn Foundation, which advises judges and governments in Albania and elsewhere on how to improve their justice systems, and he also worked as a part-time mediator.
Sir Henry is also a member of Lord Bach’s Access to Justice Commission, set up last year to review government cuts to legal aid. Though an interim report had been expected to be made available at the Labour party conference in September, the political infighting over Jeremy Corbyn’s leadership has delayed its publication. While many legal aid lawyers are itching to see what recommendations the Bach report will make – and, by extension, will be taken on as Labour justice policy – Sir Henry remains pessimistic about the government taking any note of its findings as, he explains, justice has always been at the mercy of the Treasury.
‘Ever since the law courts were built in 1882, the Treasury has said justice, like any other commodity provided by government, should be paid for by the punters, no matter how many Lord Chancellors said “you don’t understand”.’ He says that a sea change in the political climate is necessary before access to justice is taken seriously by No 11 Downing Street. ‘We are now seeing some public outrage over funding for inquests. The former chief coroner has said that if the state is in the firing line there ought to be parity of arms. Both the Hillsborough and Bloody Sunday inquiries show what happens when you’ve got lawyers acting for families and how much more acceptable the result is.’
The Treasury’s ‘inertia’, as Sir Henry describes it, also extends to modernisation of the courts. But is that all about to change? In November 2015 the then chancellor, George Osborne, promised more than £700m to modernise and fully digitise the court system. Sir Henry was heartened by the announcement, but highlights how many of the government’s plans are ‘reminiscent’ of the ideas canvassed in the Modernisation of the Civil Courts consultation paper published in 2001. ‘It is such a shame the Treasury stopped us from finishing the job (which also included the closure of a lot of under-used courts) at that time,’ he wrote on his blog last year.
As a High Court judge in 1988, Sir Henry had no access to the kinds of technology lawyers and judges now take for granted. ‘PCs were just coming in and it wasn’t until 1991 when we were given money for a pilot scheme to buy laptops for 150 judges. They had 186 CPU, which seemed a lot at the time, but it’s peanuts by today’s standards. We had the help of a consultant who identified communications, as well as word processing, as phenomenally valuable for the judges, and we also had one-tenth of a civil servant to assist us,’ he guffaws.
Written when he was the judge in charge of court modernisation from 2001 to 2004, Sir Henry’s essay on ‘Technology and the Judicial Process’ lamented the government’s decision to ignore funding requirements for the civil and family courts in 2002, despite the strains caused by 15 years of under-investment. In his 2008 report to the Lord Chief Justice, ‘Should the Civil Courts be Unified?’, he stressed the need to introduce modern IT systems, including electronic filing and document management systems. Yet, as he wrote in September, ‘Nobody was listening’.
As an early proponent of IT in the courts, Sir Henry is supportive of Lord Justice Briggs’ interim report calling for a new online court for civil claims. However, he remains nervous about the plans, suggesting that hearts and minds will need to be won over for it to succeed. ‘There is human resistance to change,’ he says, recalling those members of the bench who were less than enthused by computers being delivered to their clerks. ‘One judge wrote to me to say he used a quill pen, would continue to use a quill pen, and that he would not use a computer. There was even one recently retired Supreme Court justice who never even opened the box in which his computer was delivered. But they were the minority. The majority, once they saw that there were advantages, got on and learnt.’
This time, however, it will be the lawyers who will need to be convinced about new ways of working. ‘The professions, which like it or not are trade unions, are concerned about their members’ earning capacity. Like the luddites, some of them see this as a way of making life even more difficult for those that are already having a wretched time because of legal aid cuts. Inevitably the chairman of the Bar and the president of the Law Society have been lukewarm about the subject.’
There is also a danger, he tells me, that politicians ‘will rush ahead’ with modernisation and expect lawyers and the public to ‘just get used to it’. ‘People shouldn’t get starry eyed thinking everyone will be applauding it, because they won’t. I saw the same when I chaired the Civil Mediation Council. The value of mediation is a no brainer. However, some litigation solicitors saw ADR as an “awful drop in revenue”. Solicitors are the gate keepers to mediation and there are those who keep that gate firmly closed because of their concern over loss of income.’
Should mediation be made compulsory in all legal disputes, I ask. ‘I’ve always opposed compulsory mediation,’ he replies. ‘There are those that think it is ridiculous that so few cases are being mediated but I would resist compulsion.’ Of course, even if the government made mediation compulsory, it seems likely that the majority of litigants would ignore the law, as they currently do with the failed mediation information and assessment meetings for divorcing couples.
‘Unless the government provide more funding for legal help they are not going to turn back the tide. One of the problems about the legal aid debate,’ says Sir Henry, ‘is that judges and litigation lawyers see legal aid as legal representation, which is expensive, whereas Lord Low and others are dealing with the issue at the grass roots and seeing it in terms of legal help, where the cost of the early advice isn’t that expensive.’
The conversation turns to the issue of how best to increase diversity within the profession and judiciary, another subject which Sir Henry has vast experience with. ‘It’s not going nearly as fast as it should,’ he remarks. Since being called to the Bar by the Inner Temple in 1963, Sir Henry has witnessed some ‘pretty peculiar attitudes’ towards women and black, Asian, and ethnic minority lawyers.
Sir Henry describes the kind of excuses used to avoid bringing a woman or BAME barrister into chambers. ‘“Oh the client won’t like it”, or “the solicitor won’t like it”, or “the clerk won’t like it”. They used all sorts of “good reasons” to bolster their own prejudice.’ As chair of the Bar’s Race Relations Committee between 1989 and 1991, he recalls how black and Asian barristers felt about the treatment they endured. ‘They often told me that if they had known what prejudice they would face, they might not have come to the Bar.’
He provides two further anecdotes, one about a young pupil barrister told in 1970 that her new chambers ‘did not accept women tenants’, and another about a ‘very able black member of the criminal Bar’ – a tenant in a leading set of chambers, who had been to Eton and King’s College, Cambridge – who was told by a circuit judge 20 years later to sit down when he stood up to open the Crown’s case. ‘The judge had assumed,’ explains Sir Henry, ‘that any black barrister would only appear for the defence.’
Yet, despite these examples of historic prejudice, recent research showing greater diversity is needed in senior legal roles, and the Lord Chancellor’s scolding remarks over the lack of women justices in the Supreme Court (SJ160/38), Sir Henry remains opposed to any quota system being imposed on law firms, chambers, or the judiciary. Instead, he favours the use of targets and positive action, believing the practice of law should remain a meritocracy. ‘It’s like mediation,’ he says. ‘Once compulsion means people don’t get the jobs they are entitled to in favour of someone else, simply because of the colour of their skin or gender, then you are going to get awful race relations, like what you have in the United States.’
In 2015 LawCare responded to 907 calls from solicitors with health problems. Some 30 per cent related to workplace stress and 20 per cent to depression. Law Society research shows 95 per cent of solicitors experience ‘negative stress’ in their jobs, while 17 per cent say it is ‘extreme’. Two in three are concerned about reporting stress to their employer because of the attached stigma. Meanwhile, at the Bar, the Bar Council has teamed up with the Inns of Court and Institute of Barristers’ Clerks to launch a wellbeing portal to provide support and best practice to barristers, clerks, and chambers on mental health issues.
For Sir Henry, lawyers’ ‘consciousness of stress’ is important to stop them from ‘tipping over the edge’. He adds: ‘The increase in the amount of stress has everything to do with the 24/7, instant communication world we live in. I think the pressures of practice have got much greater. In my early days we used to turn up at chambers around quarter to ten, went to Twinings at 11, had an hour for lunch, and pushed off at half past five. Now you work all hours of the day and night. We weren’t often under that kind of pressure.’
So how can lawyers increase their wellbeing? Can legislation on work-life balance help, as has been suggested in France (an amendment to a French labour reform bill proposes companies with over 50 employees establish a policy that specifies what hours staff can send and receive emails)? For Sir Henry, it is not that simple, and those that aspire to work at some of the world’s largest firms or most prestigious chambers will have to ‘accept a lower standard of living’ if they find they want a less stressful life.
‘You’ve got to vote with your feet,’ he says. ‘We were very lucky at the Law Commission as we had some really able women lawyers who had moved away from City firms because the quality of life was so awful, but they were able to work with us nine to five.’ Unfortunately, he admits, ‘most people can’t afford to vote with their feet’. Despite his protestations that he is ‘too old’ and ‘out of touch’ with the issues facing today’s lawyers, Sir Henry has clearly kept his finger on the pulse of the profession. However, I suspect he would argue that in the ten years since his retirement very little has changed, with lawyers and judges still fighting yesterday’s battles.
This article first appeared in Solicitors Journal and is reproduced with kind permission.