The following blog is a transcript of an episode of #OurBirkbeck: Conversations with Alumni Podcast. Listen to the full podcast here
Hello and welcome to the Our Birkbeck Podcast. Our Birkbeck is an exciting yearlong initiative to share and showcase the impact members of the Birkbeck community are having around the world. In this podcast series you will hear from our alumni, students, staff and friends, whether they make a difference in their community, bringing about change to their industry, or shaping the lives of those around them. We celebrate their story, to find out more about the Our Birkbeck initiative please visit campaign.bbk.ac.uk.
In this special episode of the Our Birkbeck podcast, Birkbeck president baroness Joan Bakewell speaks to alumnus and former president of The Law Society David Greene.
JB: David Greene it is a great pleasure for we to welcome you to this occasion.
DG: I am very grateful to you for this opportunity and I am particularly grateful for the opportunity to sing that praises of Birkbeck and all that I does, I just think it’s a fantastic institution and I really enjoyed my time there and we can talk about that. As far as what The Law Society and what the president of The Law Society does, one needs to look at what a law society does and first of all The Law Society represents about 200,000 solicitors throughout England and wales, it doesn’t represent those in Scotland or Northern Ireland. But about 200,000, and it deals with the practical issues, we are the voice of solicitors, we try and drive excellence in the profession, we safeguard the rule of law and I’m sure we will come on to questions about the rule of law and challenges that are faced throughout the world in relation to it. And we protect everyone’s right to access to justice so we have got that mixture of representing members, but also dealing with those public interest issues about access to justice, the rule of law both national and international. I will proceed on to what the president does, well the president’s job as you can guess Joan is one of glamour. It is one of travelling internationally, dinners, speeches and dressing up, wearing the most wonderful badge of office which I thoroughly enjoy, it all happens from home in this seat in front of this camera. So I am missing all of that but on the other hand there are such serious issues going on at the moment it is a absolutely fascinating job dealing with the rule of law, whether it’s access to justice, members, how they are able to practice during this time and all the issues arising from that, dealing with the pandemic and it is really a thoroughly enjoyable job undertaking that task even though I do it all from this chair in front of this camera.
JB : Well before we go into the broader issues moral dilemmas across the issues of justices across the world, tell us a bit about yourself why did you choose the law and what route did you decide that?
DG: Well I came into law in a different route than most people these days. Back in the 70’s when I started studying you could enter law straight from school and you had to undertake one year examination with the College of Law, which I did way back in 1976. Which you and I recall as a very hot year that hot summer in 76. So I went to college at The College of Law I passed those exams and then did 4 years of articles (apprenticeships) and then I did a final year and then you qualified after that. That was actually a popular way into practicing law and worked very well for many of us and it was stopped some time ago you needed a degree after that and now we are actually going full circle because we are reintroducing apprenticeships in order to enter law and we can talk about why we are doing that and what are the important aspects of that a litter further down the line. But I came into law from school and I always thought I would do law from being a teenager and I have to say I loved every moment of it and I continue to love every moment of it and I am sure we will discuss why.
JB: Now what did Birkbeck offer you because you took a MA in politics?
DG: Yes, so what happened actually as well as doing law I really wanted to be a politician and a Labour Party politician. I started at a young age transferring from as many people do from the communist party at some point into the Labour Party and I was very active in local politics and then in national politics and by night I stood first time for parliament in the 1983 election. The 83 election yes you are right Joan it was not a happy time, but I think I saved the deposit which was quite an important issue. It was actually after that that I went to Birkbeck with Ben Pimlott, who was chief lecturer at the time in politics, I went to Birkbeck in the mid 1980’s to do politics.
JB: You are an alumni, distinguished, ex-student of Birkbeck so what would you say in its favour? What is good about it and its community?
DG: I think Birkbeck is a fantastic institution, I think it offers those courses, degrees other courses that people can take later in life, it maybe that they want to study something completely fresh or they want to study further a subject they studied previously or they are coming to university for the first time. I think it’s great and if you were to say to me “what did you get out of your time at Birkbeck?” The answer is I got an insight into study and insight into understanding things a little more deeply, the benefit of deeper study but I also got a lot of confidence out of it. I think Birkbeck gives people a lot of confidence but gives them a lot of enjoyment in doing the courses they want to do.
JB: Did it put you off politics, as in active engagement?
DG: No! I enjoyed politics and indeed it might be said and I have heard people said this to me I’ve lived my politics in the work I do in the people I represent. So no it didn’t put me off politics, there are a lot of attraction to politics aren’t there? Community the striving to get that commonality of purpose all of those things, all the gossip of course that sits in politics all of those issues are really attract.
JB: The leader Labour Party Keir Starmer is a barrister, a very distinguished barrister that put social justice at the heart of his beliefs, you didn’t want to become a barrister?
DG: Yes, well I wanted to be a politician and that was my main aim. Because I’m a litigator, it’s quite common for litigators in their mid-thirties to think about ‘why don’t I become a full-time advocate?.’ It either does or does not happen just like politics does or does not happen, one has to make choices in life and I actually made the right choice as far as I am concerned because I’ve really enjoyed practice over the years.
JB: Over the years you have represented distinguished people, what are your favourite memories of what you’ve achieved?
DG: I think that if you are saying what I’ve achieved is I think I’ve achieved representing people who would otherwise find it difficult to secure access to justice. Bringing together people together to enforce their rights, enforce the rule of law. I’ve had a very broad practice, one would regard me as litigator I have a broad practice in litigation. But I have represented many many people who would otherwise find it difficult to gain access and from my first maybe it was late 80’s in the Lockerby disaster and representing families in the Lockerby enquiry. I worked on the Summerland fire which you may recall in the Isle of Man, horrific event. Then I subsequently acted for large groups and for some time for London sex workers, Hillsborough I’m still doing Hillsborough. But representing large groups to ensure that they have access to justice and most recently I do some public law work. Recently I fought for the first claimant in the Article 50 case and then subsequently for Labour MPs and the Proroguing case.
JB: Can you elaborate in the Article 50 case?
DG: Yes, the Article 50 case I acted for the co-claimant who in fact started the proceedings first, who was a Brazilian national and we started proceedings and quickly Miller became lead claimant in relation to that. But a really fascinating case dealing with some very deep constitutional points about the relationship between government, the government as the executive, parliament, The House of Commons and the law. Those three pillars how do they sit together.
JB: Oh yes let’s talk about that, because I have a sense they are shifting and that in fact government, not even the house of parliament but government want to see that change. Do you have a sense that the rule of law is under various pressure today in this climate?
DG: No question about it, I don’t know that sort of dynamic has changed. I think that there has always been a friction, a sort of dynamic between the courts, parliament, and the executive. The executive generally tries to exert its will, where it has a substantial majority in the house of commons as we know is to press it’s will forward and control events. We did if you remember in the Thatcher years talk about an elected dictatorship and the executive has a lot of power and it’s important for the executive to understand and generate the benefit of having checks and balances on its conduct and that changes from time to time. I think that the atmosphere has changed over the past few years with the executive seeking to exert itself and I think it does place some challenges on the rule of law that we in The Law Society, but I would say individually have had some concerns about the rule of law in this jurisdiction. Particularly in relation to the internal markets bills those issues that arose from it and those sanctions that were included in it, which proposed breaching an international obligation. Undoubtedly that was of concern to us and here we are The Law Society must stand up for the rule of law because we are an institution to which the rule of law is central.
JB: It’s very difficult isn’t it, I can’t see that politics can’t be involved with the rule of law and indeed always be seeking to stretch it in its own interest?
DG: Yes I agree with that, I think we are to be fair seeing much deeper challenges in other jurisdictions on the rule of law. I would say there will always be a dynamic between the law, the courts and the upholding of the rule of law.
JB: Which challenges are you speaking of which challenges worry you the most?
DG: I think the says is it’s natural for executives to push the frontier somewhat. Then the court has to step in at some issue as it did in Article 50 in favour of parliamentary sovereignty as it did in relation to proroguing again on parliamentary sovereignty grounds. An executive is seeking to achieve its agenda and will push, to achieve that agenda. I think it’s absolutely right that the courts are able to challenge that, that the ordinary citizen is able to come into court to challenge that and for the courts to determine as an independent tribunal whether that is a breach of the rule of law a breach of some element.
JB: I remember not long ago before Christmas sometime ago before COVID, newspapers headlines denouncing the judiciary and remembering a headline ‘The enemy of the people’ ?
DG: That indeed was the Article 50 case and after the first hearing in front of the divisional court where we represented the claimant the three judges who made the decision where headlined in the Daily Mail as enemies of the people.
JB: Well that won’t do will it, were they enemies of the people?
DG: You and I, I think would agree that has got extreme fascistic overtones to it. We see similar attacks on the independent judiciary when they stand up against government or the executive in favour of the rule of law, we see the judiciary attacked in that fashion in fascist regimes. I think we were all shocked when we saw that headline in the United Kingdom because it has got some very dangerous flavours to it.
JB: That the rule of law is a very civilised concept widely accepted but when somebody wants to defy it, we are all completely taken by surprise.
DG: I agree, I think we have similar problems if you look at the position in Hungary if you look at the position in Poland in which the governments are seeking to control the judiciary. Both in their appointment but otherwise control. Those are two nations within the European Union and one has extreme concerns about what is happening there in relation to the independence of the judiciary which is an essential element of the rule of law.
JB: What defence do people and communities have against those sort of moves by Hungary and Poland, the move made by Trump in fact to cramp the supreme court in America with his appointees what address do we have?
DG: I think I will leave aside the Trump argument because I think that raises other issues. I think the end of the day its up to us law societies, bars, the judiciary itself to speak up in relation to the independence of the judiciary and the job they do. We know it’s an essential part in the rule of the law and we have to shout about it. I fear as I think you might refer to as the lack of complete appreciation in the wider public about how important the rule of law is, what it is the rule of law and how important it is. And I think that us at The Law Society to send out a message and indeed the education from an early age, what is the rule of law and why is it so important what are the issues, why is access to justice so important I think it’s our job to try and pass that message on to young people and indeed the population generally.
JB: Do you advertise, do you have a PR campaign how do you make your message known?
DG: I think indeed we have many discussions of that in The Law Society and debates about that in public legal education and indeed going into schools at an early age to say how important the rule of law is but also to say to them is ‘look come to law, why don’t you think about a life in law’. Trying to get young people to think of those things at an early age is so important. You’re my generation, we had the war behind us and grew up in the 50’s and 60’s. Grew up in that period and we had that sort of message still coming out about the second world war, about the dangers of fascism about challenges to the rule of law and out of that we had the commonalty of the post war government which continued through the 60’s started breaking down in the late 60’s early 70’s we had that behind us, it’s a part of our upbringing. I think we need to reinstall the necessities on the rule of law with the young.
JB: I think there is an assumption that if you are grossly aggrieved by some transaction or behaviour you can always have recourse to law beyond the police there is the law and it’s just a given. People don’t realise how it could easily vanish.
DG: What we do have in the United Kingdom is those deep roots it is a part of our being, but it need renewing the message needs renewing from time to time.
JB: How far do those roots go, are we talking Magna Carter?
DG: We could be talking Magna Carter we had its 800 year anniversary some few years back now. But I think also the history since then and I think of course we had our revolution and our civil war in the 1600’s which turned us into a constitutional country which had parliamentary sovereignty. So I think we had it long ago and the roots go back to that time, that civil war was all about democracy wasn’t it?
JB: Certainly was, do you think it would help to have written constitution?
DG: I don’t know about that, I think its very difficult to come to a conclusion on what a written constitution would look like. Because there are so many competing factors there, I think it’s a very difficult task to come up with something that everyone would agree. We have constitutional rights and what we have seen over the past few year is the development of the concept of constitutional statues. Statues are so important they form a core in our constitution, The European Communities Act was one of those because it handed over sovereignty from parliament to the European union that was a constitutional document, and the human rights act is a constitutional document because it gives such core rights to the individual. So I think that we have the protections there, I’m sorry we’ve lost the charter of fundamental rights from the European Union. We have the European convention of human rights, we have that as the background to the human rights act but the thing about the charter was it actually modernised those right the ECHR is a slightly dated document
JB: When it came to Brexit the great claim was, we wanted to reclaim our sovereignty we handed over our sovereignty. I heard you say we handed over our sovereignty to Europe and we’ve now reclaimed our sovereignty. I’ve always been bewildered by what sovereignty actually means?
DG: I think you can have a debate about what sovereignty is, the Article 50 case and the proroguing case were very much about where sovereignty lies within our constitution. I think sovereignty is within the eye of the beholder and can be viewed in many other ways. The pro Brexit argument talked about sovereignty I think it’s right, we shouldn’t have rose tinted glasses about the way the European Union works. It had some problems in terms of its democratic grounding, and I think still needed continuing work in relation to that. Parliament had been given extra powers over time I think that’s a working progress, whether one regains sovereignty I think is a much debated phenomenon.
JB: And it will continue to be wont it?
DG: Yes indeed
JB: Let’s talk about access to justice. If you were to go into one of the deprived areas of this country and said to them ‘I’m a lawyer I could defend your rights, do you believe in the law?’ would they know what you were talking about, would they feel that they had access?
DG: That’s quite a difficult question, I think people view law depending on their circumstances. When we talk about access to justice, I give the example of a single mother with two young children living in accommodation that is barely habitable. I did see an MP recently posted some pictures of accommodation she had seen over the Christmas period with black mould and all that went with it was clear damp problems. For that mother the question is, is someone going to assist her? how are they going to assist her? how will the law assist her? how does she gain access? We do have significant problems in her gaining access to justice because in relation to housing unfortunately with the changes in legal aid we are seeing fewer and fewer solicitors with skills on housing, practicing within those areas. Indeed The Law Society has mapped what we talk about legal aid deserts or legal access deserts where it is very difficult for an individual to find a lawyer who has the capabilities with expertise.
JB: What will you do about that David?
DG: First of all there has to be investment in legal aid process to ensure people do have that access and The Law Society has ben making quite a substantial campaign about extending the scope of legal aid but it is a problem. For instance, I forget the precise statistics, but I think in Cornwall I believe there maybe two specialist housing lawyers. And it’s a problem and the other issue we have on legal aid is that the rates of legal aid have not been increased for many years particularly in crime. The results of that is that we are not seeing the young going into legal aid practice, particularly in crime. We are seeing an aging population of advisors who will want to retire at some point and we are not seeing the young come into it and we have to address to that. Certainly the criminal legal aid and the criminal justice process is in crisis. Because of the fall of number of solicitors in firms to do the representation for the defendant it’s a real issue at the moment.
JB: Are you having problems recruiting people?
DG: Yes and indeed what is also happening on top of that is the government is recruiting and what has just happened recently is that the CPS has been recruiting for members of the crown prosecution service. Who is going for those jobs but young solicitors, who are doing criminal defence work who want regular income, they want flexible time to work they want all the benefits to work the CPS has, it’s hard work! There’s no question of it, but they want the benefits because they don’t get those in private practice and because of the restrictions on criminal legal aid. We’ve got a review going on it has just started a review into criminal legal aid and its looking particularly at sustainability. Is this system sustainable and we would say at the moment that it is not looking like it.
JB: We read constantly that there is a backlog building up in the legal system because of the pandemic and that there are lots of cases not being heard, delays in judgement and so on, how bad is it?
DG: Its bad in the criminal courts, I will start with the criminal courts there’s a huge backlog in the criminal courts. The staff in the courts are doing a great job in trying to keep the system going but the trials in crime you need people and people that are going to congregate you’ve got a jury, you’ve got the judge, you’ve got the witnesses, you’ve got the defendant, you’ve got the lawyers , you’ve got all the paraphernalia that goes with the court process all congregating usually in one room. Therefore in this current pandemic partially with this new variant much more room is needed in order to conduct that trial. There are various methods for doing that we’ve seen courts in theatres for instance in public buildings to deal with that they are called Nightingale Courts rather like the hospitals. The slight problem with them is the lack of staff to house those rather like the nurses going into Nightingale hospitals, are there those to serve the main hospital and the Nightingale hospitals its rather similar in the courts but the court service is recruiting in order to fill those gaps.
JB: There is a danger isn’t there, a huge danger of someone being arrested and charge with a crime and then having to wait to go to court even a number a years. In particular I know of a young person who was charged with drug offence, in the course of years in which they had to wait to go to court they reformed, their family got them back into line, they had jobs suddenly they went to court and had to go to prison. The gap doesn’t allow human behaviour to change does it?
DG: No we are seeing an increasing gap, if you are fixing a trial now you may well be fixing it till late 2022 you might even be fixing it in 2023. And there a lot of victims in that obviously the accused but also the victim of the alleged crime, witnesses, families are all affected by that delay and the problems that arise from it. Just think of the witnesses, just think of the mechanics if it, witnesses over time forget things life moves on as you said other things happen and it is a problem.
JB: Are we going to be able to catch up in some way?
DG: Well Joan, it will need investment is the answer. It needs significant investment in the courts the government has been closing courts for many years and I think that’s happened under both Labour and Conservative for many years.
DG: In order to reduce expenditure, cut costs like a lot of government expenditure over the pasts few years, austerity has been applied to the courts as much as anywhere. I think the difficulty and it sort of goes back to your original point so we’re going to go full circle in understanding the rule of law. That justice doesn’t win many votes and particularly criminal law doesn’t win many votes and in the currency of a member of parliament its not foremost in their minds. Its money that can saved, I certainly don’t accuse this government of this but we talked about a headline earlier and there a some who might think once someone is accused by the police they must be guilty why are we spending so much money on it? But what we actually know it’s something very different in fact. But it is a problem, criminal justice and the justice process generally civil or crime doesn’t get a lot of votes you might not think about it until you become involved in it and then of course it’s too late.
JB: Well, its your job now David as president of The Law Society to make us all aware of it to stand for the law, the rule of law in this country to benefit us all. It’s been very good to talk to you thank you very much.
DG: Very nice Joan, thank you very much indeed!
That’s the end of this episode we hope you enjoyed listening from Joan and David. If you are interested in finding out more about Our Birkbeck visit campaign.bbk.ac.uk. to read more about the impact our community is having around the world thanks for listening and until next time.