Desmond Browne, QC, is already a familiar face — to the media at least. One of
Britain’s top libel silks, he is well known in press circles from
high-profile court cases over decades (Neil Hamilton, Elton John, Auberon
Waugh, Boris Berezovsky and Victoria Beckham all secured his services, as
have several newspapers). Soon the chairman of the Bar Council will be known
a whole lot better.
From next month he becomes chairman of the 14,000-strong barristers’
profession — and next week sets out his stall in an inaugural speech.
Browne, in keeping with many predecessors, will have to tackle the funding
crisis in legal aid, diversity of the profession and access to justice. He
is also first the defamation silk to head the Bar — a timely appointment
when the issue of privacy laws, breaches of confidence and freedom of
expression are hot topics.
Browne headed a list of four libel silks to fire off a letter to The Times
last month in defence of Mr Justice Eady — the judge who became the target
of a furious attack by Paul Dacre, Editor of the Daily Mail. It was
nonsense, Browne says, for Dacre to suggest that the law of privacy was
bypassing Parliament. “Parliament knew what it was doing when it passed the
Human Rights Act 1998, requiring the English courts to recognise \
Convention rights.” Nor, he adds, is Eady acting on his own. There are
appeal judges and the House of Lords, all making key decisions on privacy.
He has been surprised, with others, by the press reaction to the Eady judgment
in the case of Max Mosley, he admits. “The decision was absolutely right. If
you strip out the sexual practices and unorthodox elements”, he argues, “you
have an old-fashioned breach of confidence”. Dacre could have attacked
worthier targets, he says, such as the ruling in favour of the Prince of
Wales over threatened publication of his diaries — “given the Prince’s
sorties into the public arena over Chinese affairs”.
A law of privacy is not new, he adds. “We have had it at least since the case
of Naomi Campbell \.” Although the Human Rights Act has brought Article 8
(privacy) to attention, equally it had put a focus on Article 10 (freedom of
expression). The old days of tabloid coverage might be over but at the same
time, new public interest defences were “liberalising” the defamation laws.
Browne, 61, became “hooked” on the idea of being a barrister after listening
to Edgar Lustgarten, the broadcaster and crimewriter, on the World Service
and then reading about the great advocates such as Edward Marshall Hall. He
was called in 1969 and took silk in 1990. A recorder since 1994 and a Gray’s
Inn bencher since 1999, he is joint head of his chambers at 5 Raymond
Buildings. He will put his day job aside for the next 12 months for wider
professional concerns: at a time of recession, when the fabric of society is
under severe financial pressure, the services of publicly funded criminal
and family lawyers are needed, he says. “Social pressures put the
livelihoods, homes and family lives of the vulnerable directly on the line
and they are entitled to look to our profession as the first line of
defence.”
The recent crisis over payment for barristers in the most serious trials has
receded, with all the energy now focused on devising a scheme to take effect
in July. Barristers will have to be convinced, he says, that the scheme pays
a fair rate for the job and “rewards the efficient and expeditious”, not
just those who clock up the longest number of hours.
Browne also wants to make common cause with solicitors: the rates of pay for
litigators — solicitors who instruct the advocates — are too low and need a
review. The poor rates acted as a disincentive to law firms to instructing
outside advocates, even where in-house ones are not experienced enough.
Overall, the squeeze on legal aid will hit both defence work and family
work, where barristers are acting to protect children from harm. Such cases
were the “most serious a judge could make . . . and for the lawyer involved,
it is work of great complexity, difficulty and emotional stress. So you
don’t want to see people draining out of it and there is a real fear that
they are.”
With the Bar’s work squeezed both by Crown Prosecution Service advocates (he
is hopeful of constructive relations with Keir Starmer, the new Director of
Public Prosecutions) and solicitor-advocates, he is worried about where
young barristers will train and “earn their spurs”. Even as a half-Australian who is familiar with the “fusion” model in states there, he
rejects the idea of all lawyers training first as solicitors, with those who
want to become freelance specialist advocates then choosing to do so at a
later stage. “One has got to be slightly wary of saying — as you get on
Qantas — I’ve seen the future and it works.” One downside was the lack of
access: the Bar there was far harder to access, he said, more of an elite.
So the move would damage social diversity.
As a QC who acts both for newspapers and against them (“I always have and I
always will do”) he is also passionate about the need to retain the
self-employed Bar with its fundamental cab-rank principle and the freedom of
choice that provides clients. There are threats, he says, to its existence:
if increasing numbers of barristers only prosecute. “Do people want a system
to continue in which the Bar both defends and prosecutes? If you don’t do
that, you lose a certain evenhandness and a certain objectivity.”
The prospect of barristers forming partnerships (as provided for by the Legal
Services Act 2007) is another threat to the cab-rank principle. Barristers
in the same chambers can act against each other in a case but if they are in
a profit-sharing partnership that would not be possible. The question of
whether to lift the ban on partnerships will soon go out to consultation.
Browne is inclined to lift the ban, on the ground that this would facilitate
but not require partnerships.
Access to the profession will be another theme and the need to retain women
lawyers. Plans for a Bar nursery is one step towards that. Social diversity
is also an issue. Browne may be an old Etonian who read law at Oxford (where
he met his wife, Jennifer: they have two children and two grandchildren) but
his style is relaxed and friendly. Solicitors say that he is “good both with
juries and with judges” and a good tactician. “The Bar is utterly changed:
of 75 students called to my Inn last week, just five were from Oxbridge,” he
notes. It is now “highly meritocratic”.
In court he is described as “forensic” and “a real fighter” — all qualities
that will serve him well this year. He is not, like some who emerge at the
top of the profession, a political climber or an earnest do-gooder. Yet he
sees this work as paying the profession back. Without wishing to sound
pious, he adds that “we were always told — to whom much is given, much will
be expected”.
