How did your legal career begin?
I went to university to read law; changed to modern languages after a fortnight and then back to law very quickly. I was very undecided. Finally, I made the decision that I would read law but not qualify. Later, I thought I would qualify but not practise. I was at university in the mid 1970s just after we joined the Common Market. I was most interested in international law. I went off to do a postgraduate degree in European Law at Brussels. I also did an internship with the European Commission of Human Rights in Strasbourg.
How did you end up at Bindmans – where you did your articles [training contract] and are now a partner?
It was a series of connections. I wrote to a number of charitable trusts in the human rights field to see if they would sponsor me to work at the Commission. The Runnymede Trust said that they would pay for a research paper on the case involving the right of entry to the UK of the East Africans. My old director of studies at Cambridge, Bob Hepple, put me in touch with Anthony Lester and Geoffrey Bindman who had acted in the case. I met Geoffrey and subsequently got articles at his firm.
How did you get involved in human rights law?
I realised that I wanted to specialise in human rights law while I was at Strasbourg. I got articles at what was probably the best place to develop a human rights practice, Bindmans. At that time, there were very few human rights firms, essentially because there was not much money in it unless you were acting for clients like the Duke of Westminster. There was no domestic legal aid, and most clients could not pay. We took the early cases on something like a speculative fee agreement – we offered our clients that we would consider waiving the charge if we lost. The first case that I did was Silver and others about prisoners’ correspondence. This was the late 1970s, early 1980s when I was still in training. I worked with a number of national organisations who were active in the field. I once worked with three future cabinet ministers – Patricia Hewitt, Harriet Harman and Fiona Mactaggart, then employed in NCCL and the Joint Council for the Welfare of Immigrants – in the case of Abdulaziz and others about the right of husbands and fiancés to join their partners who were settled in the UK.
I think of you as a public law and a judicial review specialist.
That came later. My public law involvement began with a case against the Police Complaints Authority concerning the ‘double jeopardy’ rule, by which the PCA declined to investigate complaints against police officers where the decision had been taken not to prosecute them. Later, I did a lot of work for the National Union of Students on student grants and then student fees. That is when I started to undertake a considerable number of judicial reviews.
So you were, first, a European lawyer?
Yes. My ‘desert island’ case, the best one I have taken, was Helen Marshall, a sex discrimination case that I took twice to the European Court of Justice – once, on discrimination in retirement ages and once in relation to the amount of her damages. She changed the face of discrimination law, not once but twice. It made it punitive to discriminate.
How did you develop the judicial review work?
A number of organisations gravitated towards us because of the sort of firm that we are and the connections that we have. I acted for organisations like Friends of the Earth, CND, Greenpeace and Campaign against the Arms Trade. My most successful case was the World Development Movement’s challenge for funding for the Pergau dam.
What was your favourite judicial review case?
Witham. It was a text book case. No one thought we could win it. We were arguing that it was wrong to withdraw the exemption from court fees for those on income support. Mr Witham wanted to bring a libel case for which legal aid was not available. He had to pay the court fee out of his own pocket. He pitched up at the court with his writ but was told to go away because something in it was wrong. When he came back, court fees had gone up and the income support exemption had gone, and he faced a issuing £500 fee. It was a nice clean issue. He was on income support; he could not afford the fee; and the court would not waive it. We argued that such a breach of the fundamental right of access to a court could not be made under secondary legislation without, at the very least, clear authority in the primary statute. When I heard that one of the judges was to be Sir John Laws I thought we were on to a winner because he had previously given a lecture on the role of the High Court as the guardian of fundamental rights through use of the common law.
So when the Human Rights Act was passed it was central to your interests?
It was rather strange. Suddenly, there were human rights experts all over the place. It was interesting to see how other people reacted to human rights principles and case law. By the time the Act came into effect, I had been working with human rights for 25 years. By that time, you took certain things for granted and you could predict much better how the European Court of Human Rights would react. But suddenly I was among a whole group of people coming to this for the first time and for whom nothing was obvious.
As true for judges as lawyers.
Yes. I had them in mind. There is an interesting piece of research to be done in looking at the cases that went to Strasbourg before and after the Human Rights Act. Some of the post HRA cases were bound to fail, like those on assisted suicide. I could see no way in which domestic courts or the European Court of Human Rights would accept that.
But there may be reasons to take a case other than to win it in the courts.
Of course. There were two reasons for brining cases like that of Diane Pretty on suicide or Barbara Clarke on medication. You may win the case in court. You may win the argument started by the case being in court.
How do you see contemporary threats to the HRA?
There is a great deal of misinformation about the Act peddled by the tabloids and not effectively contradicted by those who know better. There has been a failure of understanding and a failure of government to stand up and celebrate or even defend the HRA. It is true that belatedly Lord Falconer has defended the Act but few ministers outside his department have done so. The other threat is the Tories and their idea of a British Bill of Rights.
And opportunities for future development?
There will be a continuing need to assert the primacy of human rights over the ever-greater demands of security. The more developed technology becomes, the greater will be the need for human rights to protect respect for private life. There are issues about DNA retention after the dreadful decision in Marper (now declared admissible before the European Court of Human Rights). There is the creation of the DNA database itself. In fact, I think that Article 8 is one of the most dynamic provisions of the Convention. It covers such a wide area.
So plenty of new areas to explore?