Tag: journalism

2021ix11, Saturday: 20 years.

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Two decades on from a terrible day, I can’t help remembering – alongside the sick horror – a feeling of professional pride and challenge. Does that make me a monster? I don’t think so.

Oh, fuck.

Thinking back 20 years, to a sunny September afternoon in West London, I’m pretty sure that’s what I thought. And probably for the first and last time in my life, I was sharing a crystal clear thought, in a specific moment, with millions of others.

I was a BBC reporter. I’d been one for two months, working for what was then called BBC News Online – a wonderful little enclave of print hacks feeding copy into the BBC’s news website. I’d been hired following my insistence that there were business stories to be told about white collar crime. In practice, I’d had trouble getting a lot of interest, or traction. It was a little annoying.

And then there I was, sitting in front of one big CRT monitor (yes, it’s that long ago) and two tiny CRT TVs tuned to BBC News 24 and (probably) CNN.

I don’t think I was paying much attention when the first aircraft hit the first tower. I must have seen it. But I was busy. A passing empathetic thought for all those whose lives had been lost in what – I assumed, with so many others – to be an awful accident. (Remember: we were several years past the Troubles in Northern Ireland. Terrorism wasn’t front of mind. The bins may even have been back on the train platforms. What a sweet, brief time that was.) And then back to work.

And then the second plane hit. That terrible sequence that anyone alive that day with access to a TV can instantly remember. I remember it in slow motion: probably the effect of too many playbacks overwriting what, in any case, would have been largely seen in my peripheral vision on those two tiny TVs.

And I, and millions of others, swore. Out loud. 

And then the newsroom – Room 4220 in TV Centre, the BBC’s main economics and business newsroom, normally embroiled in the racket of a hundred hacks on deadline – went silent. 

Only for a few seconds. But it was deathly quiet. 

And then, of course, it was uproar. 

Because I, and probably everyone else in the room, knew this wasn’t an accident any more. Someone had done this unthinkable deed. On purpose. And, as for every other reporter whose beat intersected even vaguely with the attack, I knew it was game on.

That this was the time when I found out whether, in fact, I was any good or not.

I read that now, and I feel slightly sick. More than 3,000 people died that day. Some through impact. Some were crushed. Some were burnt alive. Some (and here it’s the stills I remember) threw themselves from the windows dozens of stories up, because – appallingly – that may have seemed better than the alternative.

And here I am, talking about it like it was a test of professional pride.

Here’s the thing. There are some jobs where you spend your time up to the elbows in others’ trauma. Doctors. Coppers. And, of course hacks of both kinds, reporters and barristers. We see people at their worst and most vulnerable moments. The times when life has kicked them in the teeth, and the horrifying truth is dawning that it can still, somehow, get worse.

I don’t know what it says about me that I started my working life in one such trade, and now – after an 11-year detour through regulation and banking – I’ve ended up in another. 

But this I know. I don’t feel sick about what I just wrote because I was wrong. I wasn’t – either to write it now, or to feel it then. I feel sick because I recognise that for some people it will be the proof that these jobs (perhaps not the cops and quacks, but certainly the hacks) are indeed monsters. Preying on human frailty for profit.

And yes: some do. More the journalists than the barristers, I like to think. Still, some, of each, certainly. 

But not most of us. Police officers I’ve known sometimes talk about the core distinction between them and everyone without a warrant card is they run towards the scream, not away from it. Because it’s the job. Because you get your hands a bit grubby. Because someone has to. And if you’re a halfway decent person, better it’s you than some people you know. 

Same for us hacks, of both kinds (although thankfully, usually at least, without the intense physical risks). People get into trouble. Sometimes all by themselves; sometimes because someone’s done it to them. Ignoring it is a lovely privilege for many. 

But someone has to notice. To write about it. Or fight it out in the courts, if it gets there. To be their voice.

Not without heart, not without feeling. You have to have those. You have to empathise, or else you really are a monster.

But then you have to get on with the job. Work at it. Try to keep getting better.

And find out, again and again, if you’re really any good or not. Every day.

It’s a bloody privilege.

Might as well be me.

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2021iv7, Wednesday: Gaslighting by government.

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Two smart people find much to fear in the UK government’s views on judicial review. For what it’s worth, I feel the same. And a fundamental, and discriminatory, misunderstanding of objectivity.

Someones are right on the internet: I’m reversing the usual order here, because from a UK perspective this one’s a lot more urgent and important. (Thank you, the Eisenhower Matrix.)

I’m the first to say that administrative law isn’t my speciality. But it’s critical: if we want to live in a world of laws rather than fiat decisions made by those with power (and while the rule of law isn’t perfect, it’s an awful lot better than the alternatives), then making sure our government can be held to account is as important a thing as a thing can be.

Which is why a lot of angst was triggered by the Government’s Independent Review of Administrative Law, led by Lord Faulks, when it was launched. The fear was that it was a stalking-horse for the current UK government – which hasn’t been exactly shy about its desire to do what it wants without question or limitation, or indeed about its rampant levels of corruption – to hamstring judicial review.

In fact the Faulks Review’s report is generally regarded as a pretty level-headed, sensible piece of work. (One or two evidence-related quibbles aside.) It side-stepped most of the really extreme stuff the government seemed to want in favour of relatively modest reforms. But that hasn’t stopped the government making it clear that it wants to go the whole hog, both in its response and in its summary of government submissions. 

As I said: I’m no expert. But when Joshua Rozenberg calls it an attempt at “emasculating” judicial review, and Professor Mark Elliott – one of the foremost academic experts on administrative law – accuses the government of “constitutional gaslighting”, it’s worth listening.

One point in particular which both Elliott and Rozenberg note, and the trigger for this strong language, is the government’s desire, in any case other than where a government decision was ultra vires (wholly outside its powers) to do away with nullity. 

For the non-admin lawyers, “nullity” means that if a court finds a government decision unlawful, then it is as if that decision were never made. Without getting too deep into the technicalities (that’s what Elliott’s post is for), what the government seems to want is to change that so that in the overwhelming majority of JR cases, the most that will happen is the government can’t do it again. But what it’s done already, however extensive or damaging, and even though it was unlawful, is fine. In other words: its unlawful actions are retrospectively made lawful. 

Why is this gaslighting? Because, as Elliott points out, the justification is apparently that the rule of law requires this kind of certainty. The doublethink is breathtaking: we need to be allowed to break the law and get away with it, the government seems to be saying, because otherwise people couldn’t be certain about whether our decisions would stick or not.

To take a thoroughly imperfect and highly simplified private-law analogy:

  • Let’s say you’ve got a contract with X for X to supply you with widgets. You’ve been paying full whack for them. 
  • But your customers are complaining: apparently the widgets are below the standard the contract requires. You sue X. 
  • It’s a matter of first-year contract law that you’ll want a compensatory remedy: X has broken the contract, you want to be put in the position you’d have been if they hadn’t, so you want the amount you’ve lost as a result of the substandard widgets. 
  • That could be calculated any number of ways (usually how much profit you’ve lost whether through lower sales, lower prices or compensation paid), but the point is that X acted unlawfully, and its past action has to be unpicked. 
  • Damages are an imperfect medium for this, of course – but they’re what’s available. And the critical point is that no-one is saying X gets a free pass for its past behaviour, and simply has to avoid flogging you the rubbish widgets in the future. 

As I said: this is a very imperfect analogy. Private and public law are different, not least because remedies in the latter are rightly discretionary. The public interest has to play a part. But what the government is seeking is indeed extreme. It would emasculate a critical control on government overreach. And that scares me. It should scare you.

Short thought: This made me mad.

The tl;dr version: apparently a Washington Post reporter was angry because the paper had failed to support her after she reported sexual assault allegations against a prominent basketball player. The paper first suspended her, then reinstated her but banned her from covering stories about sexual assault.

Why? Because she’d been the target of such an assault herself, and had spoken out about it.

I can’t even. Let’s set aside the rampant sexism inherent in such a move and just consider an analogy. Would we ban someone from covering labour disputes because they’d vocally complained about having been mistreated by a boss in the past? Take someone off the health beat because they’d once sued a healthcare provider?

No. Obviously not. So why on earth do it here?

Bring sexism back into the picture and it’s even worse. As I wrote the other week, I don’t and can’t really understand the experience; but it seems clear that many if not most women will have undergone some form of unwanted sexual conduct in their lives. God willing, mostly at the minor end (although what right do I have to draw that distinction?) – but unwanted, unwarranted and undeserved nonetheless.

Which makes me think that if this happened here in the UK, I could make a pretty good employment discrimination case out of it. Either it’s direct discrimination (s13 of the Equality Act 2010) – if the argument could be made that a female reporter was stopped from working in an area that a male reporter (even one with experience of assault) would still get to write about. Or indirect (s19), if it’s a “we’re not going to let anyone who’s been a victim of assault and who hasn’t kept it to themselves write about it” – since that would amount to a provision, criterion or practice which applied far more to women than men. Or even victimisation (s27), since the reporter in question raised a concern about her treatment and lost the chance to cover these stories as a result.

I’m not saying these are sure-fire cases, if they ever were brought. But couch them in those terms, and the idiotic wrongness becomes even more apparent. And we haven’t even got onto the toe-curlingly ghastly logical end-point of the WaPo position, which echoes with the core argument of sexists down the ages and which the piece I linked to makes crystal clear: since most women have suffered something along those lines, even those who’ve not made it public, no women should be allowed to cover assault against women. They can’t be trusted to be objective, can they? Not women. Leave that to the blokes. Their brains work better. 

For shame, WaPo. For shame.

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2021iii8, Monday: even the wisest can stumble.

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A small and humble disagreement with the UK’s best commentator on the law. And the joy of newsletters: a welcome return to pre-Web habits.

Short thought: Joshua Rozenberg is fantastic. He is the best reporter of the law I’ve ever encountered. (Although the late, and wonderful, Marcel Berlins – who taught me media law many years ago – probably runs him a close second.)

I subscribe to a lot of newsletters. Almost always, I only take the free version. But I pay for Joshua’s, willingly and happily. As a working barrister and an ex-hack, I find his insight and wisdom unmissable.

But even the wisest can stumble. And I think Joshua’s just done so.

He ends an otherwise (characteristically) excellent piece about the welcome elevation of Dame Vivien Rose to the Supreme Court with the following quote from the President of the Court, Lord Reed:

Having spent a substantial part of her career working in government and parliament, Lady Justice Rose will add significantly to the diversity of experience on the court. Her outstanding legal ability and breadth of experience will be invaluable in maintaining the high quality of our judgments and our reputation as an international centre of legal excellence.

To which Joshua adds:

He’s right. Diversity of experience is the most important diversity of all.

In one sense, he’s right. England’s judiciary (and its Bar) is less pale, male and stale, less monocultural, than it used to be. It still has a very long way to go. Dame Vivien, like Lady Hale before her, isn’t from the “traditional” career path of the independent Bar. And also like Lady Hale, we’ll be much the better for having her on the Court.

But he’s also wrong – not so much in the underlying sentiment but in putting it this way, in this context. It reads altogether too much as though Dame Vivien’s “diversity of experience” – as a Government lawyer as opposed to a product of the self-employed Bar – is distinct from, and more valuable than, that which emerges from actively looking to get more non-men, non-white and non-public school/Oxbridge people into the judiciary.

If Joshua meant it that way, it would be a ludicrous, and foolish, tension to encourage. It would be so at any time, given how often we still here the old, old voices that seek to paint every attempt to broaden the pool of gender and ethnicity in particular from which the benches and the Bar is drawn as a dilution of quality, rather than the other way round.

But right now, when government ministers use “woke” as a rude word, when all it really means is “genuinely aware that bias and prejudice are still alive, kicking and deeply rooted in how our society works”, it’s more dangerous than ever.

Our Bar and judiciary need diversity of experience. And they need it as much from throwing open our profession to as wide a base as possible, in every way possible, as they do from making sure lawyers with non-traditional career paths – even truly fantastic ones like Dame Vivien – get the nod.

I should make one thing clear. I can’t believe Joshua did mean it that way. I’m confident that giving comfort to those who, deep down, see righting the wrongs meted out on the grounds of race, sex, faith, gender or sexuality as some kind of discrimination in itself – or who may not think that, but find it a convenient punching-bag for political gain – would be the last thing he would would want to do.

It’s a shame that, inadvertently I’m sure, that’s what he’s done.

Someone is (pretty much always) right on the internet: More about newsletters, I’m afraid. This time, not a lawyer, but an academic.

John Naughton is one of the people I turn to when I want to understand what’s happening in the online environment. He’s been studying and writing about it for years. And his writing is accessible, thoughtful and considered.

Unsurprising, then, that I’ve been following his blog – Memex 1.1 (for those who don’t know what Memex 1.0 was, here’s a rabbit hole to disappear down) – for longer than I can remember.

These days, John writes something every day. A curated series of pictures, music, commentary and links. How he sustains it I don’t know. And I can’t remember a single edition which hasn’t included something I’m desperately glad I was pointed to. Not one.

And while it appears on his website, he also sends it out via Substack (for free) each morning. Needless to say, I subscribe.

The funny thing is, the wildfire growth of newsletters (yes, I know – like this one) is something of a reversion to the early days of the online world. Remember that the public Web is less than three decades old. Before then, and for many years thereafter, email newsletters in plain text were the standard way of “publishing”. I’m a huge fan of their return.

While I’m not giving up on RSS, I’m happy to have a dozen or more people’s newsletters popping into my inbox on a regular basis. I may have less time to read them than I did (the one thing I miss about commuting). But the habit of regular writing is a valuable one, and those who commit to it tend – counter-intuitively – to think before they write, and write thoughtfully as a result.

John is a pre-eminent example of that breed. I commend his newsletter warmly.

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2021ii5, Friday: Malleable memory.

JSJ2 Comments

The litigation process causes witness inaccuracy – and the courts are recognising that. Also: a wonderful hymn to the joy of errors. And why stories can help fight corruption.

Short thought: Job one, when you’re a barrister, is to read the papers. 

In olden times – that is, a year ago – these would normally arrive in fat bundles. Possibly, even today, tied up in pink tape. (Ah, the nostalgia.) Nowadays it’s PDFs. Already put together if you’re lucky. Buried in dozens of nested emails if you’re not. (The fact that I’ve written about this three times in the past six months shows how painful this is.)

But however they come, knowing the papers, inside out, is critical.

In commercial litigation this is if anything more important. The reason? Over the past decade or so, judges in the English commercial courts have recognised the fundamental problems with oral witness evidence, long considered the gold standard and backbone of any trial. 

The first really stalwart example of a judge making it clear that documents, not people, were what they would primarily rely on was the case of Gestmin v Credit Suisse [2013] EWHC 3560 (Comm), in which Leggatt J (now Lord Leggatt JSC) made clear at [15]-[22] his awareness that memory is fallible, that the process of civil litigation itself risked making it still more fallible, and that the mechanics of memory formation itself meant relying on witness recollection except as a means of scrutinising the documents in the case was usually a futile exercise.

There’s been push and pull about Leggatt J’s points ever since. But at their heart they stand up. They reflect, among other things, the growing and spreading knowledge of how cognitive biases function (warning: that link is a rabbit hole from which you may not emerge), and the fact that memory is a construct, not a recording. 

The Courts’ recognition of this, at least in commercial litigation, is now official. Enshrined in a new practice direction (PD57AC for those keeping score – starting at p64 of the linked PDF), are rules about witness statements at trial which seek to mitigate the adverse effects of the litigation process and improve the odds of witness evidence actually being useful. The explicit recognition of what one might call the Gestmin principle is at para 1.3 of the appendix, at page 69 in the PDF I linked to:

Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence the approach of the court is that human memory:

(1) is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but

(2) is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore

(3) is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.

The other reason for the PD (and this was made clear on a enlightening webinar by the Leeds BPC Forum earlier this week addressed by Andrew Baker J) is the burgeoning use of witness evidence to make arguments. Judges are getting more and more annoyed by this – one can do little better than look at the many, many posts on Gordon Exall’s Civil Litigation Brief (this is just the latest) on this subject for excellent examples. 

Either way, though, the message is clear. Know your papers. Make them tell the story you need to tell, and use witnesses carefully to buttress that story. Because if you don’t, the other side definitely will.

Someone is right on the internet: Speaking with the experience that comes from being the parent of a 14-year-old, her generation seem to have a harder time with perfectionism than mine ever did. I don’t know why, but I suspect the welter of examples, spread across countless media, of people who seem effortlessly to succeed – with all the hard work in the background neatly occluded – may have something to do with it. The fact that Gen Z simply, frankly, has it harder than we do, with narrower pathways to success and far greater consequences for screwups along the way, is probably also relevant.

Even so, I remain a true believer in the principle that to be good at anything, you have to be OK with being bad at it for a while as you try to improve. And that it’s OK – no, it’s critical – to be OK with getting it wrong. So long as you only get it wrong the same way once. I remember interviewing someone for a job once who surprised me at the “do you have any questions for me?” stage by asking how I’d deal with her making a mistake, which sparked a great discussion about the importance of assessing people by how they correct and learn from errors, rather than by the errors themselves. A reallybrave question, but in fact an excellent one – one which made sure she got onto the final shortlist. 

So this piece by David Duchovny (yes, that David Duchovny) struck a chord. Starting with a Beckett quote – “Fail again. Fail better” – he weaves a hymn to the importance, and sometimes even the joy, of screwing it up and trying over. Or, as Fred and Ginger put it, “Pick yourself up, dust yourself off, and start all over again.” He also used a word I’ve never seen before, but am now in love with: hamartia, which he describes as the “near miss” that delivers an electric energy driving the next attempt. (Dictionaries give a darker meaning: the tragic flaw in a hero that triggers their downfall. But Duchovny’s sentiment, if not his usage, is bang on.)

Seriously, it’s a great read. (Sorry, paywall again, but The Atlantic’s is metered so you should be able to take a look.) And I can’t sing this song often enough. 

Thing I wrote: In less plague-ridden times, Fiona Horlick QC – a fantastic advocate and a genius at health and safety and disciplinary law – is my roommate at Chambers. 

(Barristers’ chambers are usually, although not always, set out in individual rooms rather than open-plan spaces. Our work doesn’t lend itself to the disruption and lack of privacy of open-plan. But often those rooms are shared with one or two others – which both cuts the cost and makes for a pleasant collegiality. Alex Haines, one of only a handful of lawyers who are genuine experts in the law of international organisations like the IMF or the international development banks, is in our room too.)

For the moment, of course, we’re physically far-flung. But we’re still working together. And Fiona and I put together a piece for the Government’s Public Sector Counter-Fraud Journal (link to the whole thing in PDF; we’re on page 5) on how the stories people tell themselves can encourage corruption – and how we can use those stories to quell it or find it as well. My past life as a reporter means that perhaps I look too much for narrative in my work as a barrister, but finding the right story can be a hugely important tool (a bit like finding the right analogy – see the last chunk of this piece). And understanding how the stories which people tell themselves can influence their actions is important for this, too.

Thing I said: My friend Daniel Barnett, who’s been mentioned in these annals before, was as upset and (frankly) perplexed by the Times’s assault on employment tribunals and their judges as I was. So he corralled – sorry, persuaded – several employment lawyers to take the Times’s inaccurate claims apart on his YouTube channel. I was one of them. Personnel Today followed us up – thankfully with a pic of someone else, not me. Phew.

Incidentally, judges aren’t the only people who can’t answer back. Think of all the tribunal staff who’ve been working their hardest, amid this nightmare of a pandemic, to keep the show on the road and to keep delivering justice. They don’t have a voice either, but their morale is hit just as badly by inaccurate garbage like this. We’re fortunate to have a voice; as (for barristers) self-employed professionals, speaking up for people is our job. So in this we’re speaking up for them, too.

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2021ii1, Monday: Hack job.

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The Times publishes a misleading set of hit pieces about employment tribunals and judges. One of those it insults is a colleague. I can’t in good conscience let it lie.

A departure today from the normal routine of short thoughts etc. A colleague of mine, Natasha Joffe, has just been the subject of a piece of shoddy journalism. And I can’t let it pass. There aren’t that many barristers who used to be reporters, but I’m one of them; and this ought never to have passed the subs, let alone made it to publication. That it did reeks of an editorial hatchet job. 

For tl;dr purposes, I’ll put it simply. The overall impression of this piece, that employment judges being appointed are somehow substandard, is simply wrong, and unfair to the individuals named. It tells a one-sided story, ignoring vital context, and thus gives a misleading picture in all but one respect. That one thing is that the system is overburdened; but that’s not the fault of “inexperienced judges”. It’s the result of political decisions coming home to roost, to everyone’s cost.

(To be absolutely clear: this is my personal view, not that of my Chambers. But I suspect I’m not alone.)

The piece in question is in the Times. It accompanies an equally shoddy news story. (Update: a friend has provided shareable links to both pieces which are OK for non-subscribers legitimately to access.) The main assertions in the piece, and the news story it accompanies, are as follows (note these are the Times’s assertions; my repeating them here doesn’t mean I think they’re right or true):

  1. The MoJ is rushing to appoint “inexperienced” employment judges to deal with a huge backlog. A “hearings free-for-all”, the paper calls it.
  2. Employers are unfairly treated by tribunals, because they can’t recover their costs. 
  3. The backlog is because of a “surge in demand” since the 2017 Supreme Court case which ruled that fees were unlawful.
  4. The surge is mostly unrepresented litigants in person, some of whose cases “seem extraordinary”.
  5. The tribunal system should change its rules and throw out more cases, but is instead hiring inexperienced judges selected on the basis of lower standards. 
  6. The “lower standard” being no need for previous judicial experience. An anonymous “judicial source” said it was “quite a stretch for someone to be thrown in immediately as a full-time judge”.
  7. Profiles of several of the “inexperienced” (and by inference unsuitable) new judges follow. One is Natasha Joffe (a former member of my Chambers). She started work in September 2020. The Times says she is “among inexperienced judges appointed with backgrounds that might appear more embedded on one side than the other in employment issues”, saying that “her brief biography by the MoJ contained no previous work as a judge but stated that she was called to the Bar in 1992”. It also notes that she wrote “The Mumsnet Rules”.
  8. A number of other legal professionals are called out by name as well. One is snidely described as having previous judging experience limited to “choosing the winners of the Southport Writers’ Circle International Poetry Competition 2009”. Others appear to be unsuitable, in the Times’s view, because they were (like Natasha) authors, or because they were solicitors whose work was closely involved with trade unions.

Good lord. Where to start? Taking them in order:

  1. “Inexperienced” is an idiotic word to use here. Employment judges often, but not always, work as “fee-paid” (ie part-time) judges for a while before they go full-time. But fee-paid judges do the same work, in the same way. So everyone starts somewhere. There’s no difference in practice between a fee-paid judge and a salaried judge on day one, and no requirement to do the one before the other. So the point is to look at whether they can do the job. And taking Natasha as an example: she’s been doing employment law for 28 years (and was in fact appointed in 2019). She knows her stuff. To call this a “hearings free-for-all” is a cute phrase, but utterly misleading. Not to mention stale beyond belief.
  2. The costs-free environment is deliberate, and fairer than the alternative. If you’re suing your employer for a few hundred or a few thousand pounds, and you knew that if you couldn’t prove your case you faced costs of ten times that, you’d give up. Similarly, if you’re an employer, at least you can reasonably predict what it’s going to cost you to fight. You can insure against it, without the worry of the other side’s costs on top. And having just lost two cases for claimants in the past month (ouch), I think I can say that tribunals don’t routinely favour one side or the other.
  3. The “surge in demand” since UNISON in 2017 is real. What the Times fails to make clear is that between 2013 and 2017, during the period when taking (say) a discrimination case all the way to a final hearing cost claimants £1,200 in fees, the number of cases fell by around 70%. That’s mostly not people jacking in nuisance cases. That’s real people, with real grievances, being denied justice because they couldn’t afford it. The sharp fall allowed the Government to ditch large numbers of employment judges. The backlog is because there aren’t now enough to cope with what is, in practice, largely a reversion to the mean. In other words: the mismatch between judges and cases is an artefact of political decisions, coupled with the effect of Covid. Not a surge in people bringing pointless cases.
  4. Yes, there are lots of litigants in person, because there’s no legal aid. Legal aid helps weed out useless cases. No-one would deny that useless cases get brought. But often they get thrown out. Rule 37 of the Employment Tribunal Rules of Procedure allows a strike out (at the request of a party or at the Tribunal’s own motion). And any employment lawyer with tribunal experience will tell you that it does happen. Often. 
  5. The tribunal system can’t just change its rules. They’re statutory. So if they’re to change, the Government will have to do it for them. And a wholesale reinterpretation of those rules – say, to strike out more cases – would be the subject of appeals (and probably successful ones). Judges don’t decide to change interpretation on a whim, and no sane person would want them to. 
  6. As for the suggestion about “inexperience”: see 1, above. The blind quote could be anyone, from an usher to someone in the MoJ selling a line or flying a kite. (In other words: pushing out a quote to see how it’s received. If it goes down well, the minister can double down on it later. If it doesn’t, you can walk away from it unscathed.) And given that this situation arises largely from political decisions made in the past 10 years, of course it’s a blind quote. It’s notable that Dominic Kennedy, the investigations editor whose byline the news piece carries, hasn’t done anything to interrogate these issues. 
  7. Now for the hit job on Natasha. As noted above, she’s been in this game for 28 years. She’s represented both sides, as almost any experienced employment barrister will have done, so the suggestion she “might appear more embedded on one side” is wrong. She’s as qualified as any newly-minted employment judge, whether fee-paid or salaried. A quick web search would have brought up her professional CV. But why bother, when as a salaried judge, Natasha can’t answer back? The fact that she wrote a book based on MumsNet postings is neither here nor there, unless it’s intended to give the impression of someone unserious. The whiff of sexism is inescapable.
  8. Much the same applies to others named. The fact that two of 59 “newly-appointed” judges have strong trade union connections is irrelevant; Dominic doesn’t seem to have scanned the list for close industry connections which, according to his approach, would suggest bias in favour of employers. I’m sure they’re there too. And as someone who appears before ETs on a regular basis, I don’t care. If a judge reaches a biased decision, we’ll appeal them; and the Employment Appeal Tribunal will eat them for lunch. But it’s really, really rare.

I wrote a lot of investigative pieces during my time as a reporter. This is how it usually works:

  • You get a whiff of a story. Sometimes from a source, sometimes from open documents, sometimes from events.
  • You pitch to your editor what you think the story’s going to end up being. Hopefully, they tell you to get on with it.
  • You do research. You talk to lots of people. You get very frustrated with a few blind alleys. You test your hypothesis.
  • Sometimes it checks out as you’d expected. Often, it changes in the process and you end up with a rather different story. 
  • You go back to your editor and explain where you are. Hopefully, they say: OK, changed story is still interesting. Go ahead and write it up. Sometimes they say: I don’t like the changed story. Spike it and do something else. Or sometimes – worst of all – they say: no, I wanted the original story. Write that one.
  • If that happens, you’ve got a choice. Either you push back; or you find ways of adapting your research to fit the original pitch.

This piece smells of pushing a line. It would be so easy to include the context about UNISON and tribunal fees, the truth about how judges are appointed, the reality that a barrister with three decades of ET experience is absolutely standard material for a role as an employment judge. 

My suspicion? That material might well have been in the early drafts. A decent reporter would have included them. But they made the story more nuanced, less impactful. So they probably got taken out in the editing process. So as to make for – as one former editor of mine used to put it – “a better top line”.

This hack job isn’t victimless. It smears the reputations of professionals who can’t talk back. It paints an inaccurate picture of a system which – and this is the bit the Times gets right – is genuinely in trouble. There aren’t enough judges. There isn’t enough tribunal space. Tribunal systems are archaic – one of the reasons so many cases got postponed for so long (from April to September very few final hearings took place; that’s a half-year lost) was that they’re still very paper-based, and the electronic systems wouldn’t support remote working for a long time. And that’s the result of the huge cuts which tribunal fees allowed governments to make, and the fact that they’ve never yet been properly reversed. 

The result, even before Covid, was frequent delays. Between September 2019 and March 2020 I had three multi-day cases pushed back as much as a year because judges weren’t available – sometimes on the day. That doesn’t just hurt claimants. It hurts employers too. You’ve had to take critical staff off the front line to sit around in a tribunal waiting room, and then they all have to go home? And you have to do it all over again? That doesn’t do either side any good. 

You can infer this from Dominic’s piece. Sort of. But it wouldn’t produce the “know-nothing judges in hearing free-for-all” headline the Times seemed to want. A better top line, wasn’t it?

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2021i11, Monday: reluctance or refusal?

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Vaccination – mandatory or not? Wise words from the Family Division. And the bell tolls for mainstream specialist legal journalism.

Thing I wrote: I was going to do a short thing about whether employers could require staff to get Covid vaccinations. But it turned out longer than I anticipated, so it’s a separate piece here. tl;dr: I don’t think so, not lawfully; except for care homes and healthcare, where the health and safety picture is very different. And if someone’s imbibed the conspiracy theories and is trying to stop other staff from getting vaccinated – well, that’s a whole ‘nother story, with more room for an employer to take a firmer line.

Short thought: Applause to the President of the Family Division, Sir Andrew McFarlane. His latest message (see paras 11-16) makes crystal clear why court hours – normally from 10 to 4.30 – are no more “part time” than are teachers’ hours, and why it’s simply not right or sustainable to make early or late listings a matter of course. No reason why what he says shouldn’t apply elsewhere.

Someone is right on the internet: David Allen Green does a fantastic job of public comms about the law. Increasingly, he and his ilk are on their own, though, since – as David writes – specialist legal correspondents in the press are disappearing. I remember, back in my reporter days, sitting round a table in the Law Offices with Joshua Rozenberg (then the Telegraph’s legal correspondent), elegantly roasting the then-AG about the just-published Fraud Review. He was, and is, a marvel. But he’s no longer a staffer. And with the exception of the Times and FT, there aren’t any left.

Sure, as I mentioned last week when talking about RSS readers, the internet is full of superb legal writers, from ol’ SB to Joshua himself. But they’re mostly read by us specialists. At a time when the rule of law is under assault – and it is – people with a popular platform who can explain why spin about legal aid, or Tribunal fees, or sentencing, or judicial review, is plain wrong are more important than ever.

And there’s barely any of them left.

(For a somewhat more optimistic take, Joshua’s own view is worth reading. He notes Dom Casciani has now added Legal to his Home Affairs brief. Dom’s really good. But the jobs aren’t the same. And that’s an awfully big beat.)

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