Lawfare: when can barristers opine in public?

A joint opinion from three of the nation’s leading Silks in support of the part of the Press’ campaign the Government’s “interesting” approach to implementation of Leveson has garnered a lot of press attention. It is not an unusual approach. I have seen it reasonably frequently in relation to legal regulatory battles. I am told (HT Adam Wagner) it has been common in battles around equal marriage.

That question in broad terms is this: if expressing an opinion in relation to anticipated litigation is forbidden why is giving an opinion, which is then publicised in this way, not?

The relevant Bar code of Conduct rules state this:

709.1 A barrister must not in relation to any anticipated or current proceedings or mediation in which he is briefed or expects to appear or has appeared as an advocate express a personal opinion to the press or other media or in any other public statement upon the facts or issues arising in the proceedings.

709.2 Paragraph 709.1 shall not prevent the expression of such an opinion on an issue in an educational or academic context.

This situation appears to fall between these two stools; though there is no doubt in my mind which of the two situations it is closer to. It might even be argued that litigation is anticipated in relation to any attempt to implement Leveson; though I don’t think I’d like to make that argument just yet. A general sense that litigation is inevitable is not the same as anticipating litigation on this point. The advice is framed as being in the matter of proposed legislation (one might say anticipated, though I’d bet litigation is more likely than this particular piece of legislation).

The Opinion reads almost without qualification (I quote the bit where they come closest to circumspection). I do not know whether the Government’s position is so outrageous as to merit this; but I did wonder if a more detailed opinion lay behind it. The central point seems to be this in relation to the introduction of exemplary damages:

Whilst Parliament is capable of departing from the accumulated wisdom of twelve Law Lords, it should be cautious about doing so. Further, even if Parliament did reject the wisdom of the common law, the Strasbourg court would in our view consider that the touchstone of “outrageous” conduct lacked the legal certainty required before a measure which interferes with freedom of expression under Article 10(1) of the Convention can be said to be “prescribed by law” and capable of justification under Article 10(2).

I’m not tempted to engage in detailed debate on the point but it is worth saying, because it is rather topical, that outrageous, dishonest, reckless, beyond reasonable doubt – the law is littered with phrases of uncertainty in which we necessarily put our faith (see yesterday’s post). And in broad terms, I have some sympathy with many of the arguments made in the opinion, but they are made with a force which strikes me as advocacy rather opinion (e.g. saying the discrimination in application of exemplary damages was impossible to justify seemed to me to be overreaching a little – but I may be wrong).

In any event my concern is really with whether barristerial opinion should be used in this way at all and what that means for the Bar’s other media comment rules. I do not know whether the Silks involved knew this was about to happen, though I can guess. I do not know whether they would feel that, having opined in such terms and for such purposes, they should not be instructed on any litigation because they will then have more plainly sailed close to the existing rules. It’s a minor point perhaps also, but their opinion does not disclose who instructed them (most people know already I suppose).

This problem, if indeed it is a problem, is not confined to such openness. It has been described to me as ‘Lawfare’ (HT Stewart Murray) . There is the potential for lawyerly tools to be applied outside the contexts for which they are appropriate. On one level the document is just an opinion; but it has been released with into a broader scheme of meaning. In reality, however eminent, we should not pay too much heed to the people or to their headline opinion but to their reasoning and the counter-reasoning as and when it comes. Lawyers should also be mindful of the consequences of how their opinions are interpreted and used, but that is an issue for another day. There are other interesting examples. I have been told by one barrister that the former editor of a leading practitioner text (close to a lawyer’s Bible actually) told him Silks sent him (the Editor) unsolicited papers hoping they’d be included as editorial before upcoming cases. It is one thing to opine on the law. It is another to try and stack the deck so that the law appears only to lean your way.

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