Adam Straw QC, Ollie Persey, Professor Lisa Whitehouse, Simon Creighton and Fiona Bawdon chat with Simon Mullings.

Adam straw QC, Doughty Street Chambers and Ollie Persey, Garden Court Chambers, discuss Adam's new book, 'Discrimination in Public Law' Legal Action Group 2022.

Professor Lisa Whitehouse, Southampton University, sets out what we can learn from her recent work assessing the court system’s response to the COVID-19 pandemic in housing possession cases in England and Wales.

Fiona Bawdon, legal affairs journalist, introduces the 2022 LALY's.

Simon Creighton, Bhatt Murphy, gives an overview of the two part prison law recent developments.

Transcript

Unknown Speaker  0:01  
Hello everybody and welcome to this legal action group podcast. My name is Simon Mullins and coming up in this March edition of the podcast we have Adam straw QC of DAP street chambers and Oliver Percy of Garden Court chambers. And they're here to talk to us about Adams new book discrimination in public law. will then be talking to Professor Lisa White House of Southampton University about her report assessing the court systems response to the COVID 19 pandemic in housing possession cases in England and Wales. That report came out in January 2022. Professor White House has written about that in March was legal action magazine will catch up with Legal Affairs journalists and long term friend of legal action group, Fiona Borden, and talk to her about legal aid lawyer of the Year awards 2022. And lastly, we'll finish up with Simon Crighton, who will give us the overview of the two part prison law recent developments articles in February and March is legal action magazine. Okay, let's get started with Adam and Ollie. Adam, you have written a lot for the magazine and you have your new book discrimination Public Law coming out. But can you recall how you first came to start writing about law and practice?

Unknown Speaker  1:28  
Yes, I started at the earliest stage when I was a pupil. When my supervisor Lesley Thomas encouraged me to get into writing and also doing seminars as a means of improving your own ability as a lawyer. His view was that the best way of understanding and getting on top of an area is if you can teach it to other people.

Unknown Speaker  1:51  
Yeah. And Ollie similarly with you.

Unknown Speaker  1:53  
Yeah, similar for me, my pupil is supervisor Alison Pickett was helping to update the electronic immigration networks Best Practice Guide to asylum and human rights appeals. And I helped him with that. So that's how I got into it.

Unknown Speaker  2:08  
Adam, your your legal practice, as a barrister presumably informs the writing you do? Of course, that's what you're writing about. But does it work the other way round? Does the writing influence the way that you do law?

Unknown Speaker  2:21  
Yes, absolutely. I think if you are able to write in an area, it makes you a much better lawyer. It gives you a comprehensive understanding of an area that it's very difficult to get in day to day practice, when you just get snapshots, those specific topics. It's an A enables you, I think, to spot the arguments that are going to win and the arguments against lose better than otherwise. And also to formulate arguments in a way that's persuasive. And authoritative. Yeah, I think it's very important. I wish that I could write a book about every area of law beside practicing.

Unknown Speaker  3:03  
I think you probably need another lifetime, though, Adam, because I was looking at the areas of law that you practice in and I think, yeah, well, I mean, I wish you your long and illustrious career that you can achieve that. I mean, Allah, you've been, you've been involved in lots of other projects as well read law. And why allow just the name to so you work the balances, you've got those other projects? Where does the writing fit alongside that are the all three sides of the same coin? That's my terrible maths coming through there.

Unknown Speaker  3:31  
Yeah, exactly that I became a barrister because I wanted to use the law as a tool for social change, and help disadvantaged people access remedies and improve their lives through the law. When you're really Junior in particular, you sometimes feel like you don't have a huge amount of power to do that. So gaining different tools in a toolkit, I writing, organizing events, etc, is just a way of increasing the amount of impact that you can make. So I think immersing yourself in a world where people are doing the same type of work as you can give you ideas for your practice and for things to write about. So we actually had a while meeting on discrimination in public law about four years ago with Louise Whitfield, who spoke at the book launch. So yeah, all of these things are interconnected.

Unknown Speaker  4:19  
Okay, so it's like a thread really, that kind of runs through the work that you do. That's really interesting, Adam, I mean, I believe that you write for sweet and Maxwell, as well. But why is writing for lag important I mean, like why, like in particular similar

Unknown Speaker  4:33  
to Bali. My main aim really in doing this type of work, and in particular, working for claimants and judicial review cases is to help people who need help because social changes, as he puts it, one means of achieving that aim is to write books which give claimants themselves tools to win their cases and also their lawyers to develop the law for their benefit on a more on a more wider basis. And lag is the leading publisher. for claimants, it's the best publisher to go to, if you want to try and write books are so focused on Canaan lawyers.

Unknown Speaker  5:07  
So could you tell us a little about the new book discrimination in public law been extremely well received? What's it seems? What does it do? What do you hope people will get from it?

Unknown Speaker  5:18  
It's been well received, there were a few reasons why I thought it'd be a good idea to write a book like this. One of them was just that I do a lot of work in this area anyway. And it's a real interest to me. Another one was that I think discrimination is a really powerful tool for public lawyers, and across the whole board have different specific areas of practice, whether that's asylum, prisons, police, it can be very powerful and has won a number of cases, the Equality Act is perhaps less under threat than the Human Rights Act. So it's an important tool to have in our in our pockets. But perhaps most of all, there's been a huge number of cases in recent years regarding discrimination in public law, but there's no single text, which provides a comprehensive analysis of them. And there's a whole range of complicated principles that have been developed, whether they're under the Equality Act in judicial review cases, look, the normal procedure under that act under Article 14 under EU law, and there was no single text, which has all of those. So this book aims to really be something that any public lawyer who encounters discrimination point, whether they're working in assigning more welfare benefits, or any of the specific areas will hopefully find everything they need. Another aim for it was to try and encourage cross fertilization, for example, that there may be something useful in a housing case, which can help or in a welfare benefits case, which can help help a police lawyer. And so the aim is have a book where each specific area can learn from the other areas.

Unknown Speaker  6:55  
I mean, that sounds absolutely brilliant, really essential. We do sometimes get in our lanes a bit. And don't look at the other side of the bumpers sometimes. So anything that brings that together and Ali, I think mentioned the launch and Louise Whitfield, who I think said it was it's just a book that brings together you know, a huge number of connected ideas about discrimination and public law and so welcome to have it in one place. So so there you go, folks, your your you can order your copy from all the usual outlets, including the lamp like website, and all your favorite bookstore. So do make sure you do that. Haven't got mine yet, but I'm looking forward to it. Ali says it's Adams book. But you're you've been involved in it. How did you come to be involved? Yeah.

Unknown Speaker  7:39  
Adam emailed me to ask I think it was because I presented a session at a PLP conference on retained EU law. And yeah, maybe no one else wanted to write that particularly for him section.

Unknown Speaker  7:53  
Hardly boring. And was was to give me all your somebody not at the start of your career. But perhaps at the at the end of the start of your career. Was that? Was that an intimidating prospect?

Unknown Speaker  8:03  
Yeah, it was a fun prospect. But I got to I get to ride on the avenue QC Adams drawers and hotels and be associated with him. It wasn't massively intimidating, because it was a case of dis adapting some notes I'd done for PLP conference and fleshing them out, I guess. And I spent a lot of time working on that topic. The good thing about pupilage PLP was that you got to engage in policy work alongside practice and the European Union withdrawal act. And the mechanism for a change EU law is one where there is actually very limited practice. It's a statutory scheme that we haven't seen much case law on, but it's a knotty one. So I was very lucky that PLP gave me the time to read the legislative provisions

Unknown Speaker  8:50  
should I should say the reason I emailed oddly originally was because this seems to be by far the most complicated area of the book, and I thought he was the only person who really seemed to understand it.

Unknown Speaker  9:01  
There you are. I mean, that's Yeah, look, coming to the end of this segment. Thank you so much, both of you. But just for anybody who thinks that they might like to write about law and practice, just as you do Adam lank very much as this part of its mission is to get people writing for the reasons that you both very eloquently set out. But any, any top tips for anybody who might like to get started on this, but are a bit nervous,

Unknown Speaker  9:25  
I would really encourage anyone to write it's already said, I think it's a brilliant way of improving your abilities as a lawyer to artists try to think about put yourself in the shoes of the reader. So if you're, as most people in this area will be doing if you're writing a book that's aimed at lawyers, what do they want to read and the main things are you want a book which you can quickly but comprehensively understand the law in your area, but also that you can cut and paste from it into letters your writing or into your skeleton argument. And for both of those reasons, I think it's really important to stick as closely as possible to the words of the act or of the cases so that there's no misunderstandings and the principles retain their their strength. Yeah,

Unknown Speaker  10:13  
Ollie, any more thoughts on that

Unknown Speaker  10:14  
only to say I would recommend starting by writing for the magazine and then working up, so maybe speak at a live conference, do some notes for that, and then maybe be a contributor to a more established person's book? Go in and write your own?

Unknown Speaker  10:30  
No, I think that's I think that's a very good idea. Both. Thank you. So, so much for coming to speak to us. The book, as I say is available from all good books, stockists is absolutely essential for anybody working in either discrimination or public law or in both of those areas together. And let's face it, we all are only so once again, thanks, Adam. Thanks, Ollie jury. Okay, we'll move straight on now to speak to Professor Lisa White House of Southampton University. So Lisa, in marches legal action magazine, you have an article, which is based on your reports regarding possession proceedings during the pandemic, before we get into the article itself. Can you tell us about the report? How did that come about? What does it cover? What Why did you why did you want to produce this report at this time?

Unknown Speaker  11:21  
Well, this was very much a COVID 19 pandemic based project. So I was fortunate to get funding from the Economic and Social Research Council. And they were seeking rapid assessments of issues that have been impacted by the pandemic. And obviously, my interests lie in housing possession. Yeah. So I thought this, this just seemed like a great opportunity to get the funding necessary to go out there. Take that rapid assessment, because we know that measures weren't in place for very long. So we needed a quick fire. Get in there, assess them, see what lessons we could learn.

Unknown Speaker  12:02  
Yeah. And now that you've got those lessons, were they pretty much what you thought they'd be all where they're big surprises,

Unknown Speaker  12:08  
mostly aren't? Big surprise in there. For me, really, I think, particularly the review date. I mean, I thought that was a great measure to introduce at that time.

Unknown Speaker  12:20  
Listeners, Lisa's talking about the review date here, which was introduced during the pandemic in possession proceedings to give tenants the opportunity to get early advice, the idea

Unknown Speaker  12:30  
that people can turn up at their court hearing for a possession and get advice, literally three minutes before they're going into that courtroom. Just that that is not access to justice. So the idea that they could have obtained it 28 days before, without the you know, that sort of Damocles hanging over them of that hearing about to happen, just seemed like a great idea. Unfortunately, the take up of it was very, very low. It seems mean. But how do we how do we increase the take apart from that? I mean, this this is the key question, isn't it? The idea seems laudable. Maybe I think, in part, it was the way it was first introduced, I don't think the information that was given to defendants actually encouraged them to attend. But I think that that was changed over the initial few months. But still, you know, anybody who knows anything about this process knows that occupier engagement is incredibly low. And you would think the opportunity to get free legal advice at a time in your home is at risk. Would people would jump at it, but they don't. So we need to understand why.

Unknown Speaker  13:42  
So you've now written in in legal action about the report. First of all, why legal action? Why did you want to go and write for legal action?

Unknown Speaker  13:49  
I know it's very difficult as an academic, to reach out to people in the real world as real world, real world, you know, us leaving our ivory tower to go and talk to real people doing real jobs. So this was just a great opportunity to do that. And you know, that I've, you know, I've been trying to work with housing practitioners Association. I've been trying to work with with other practitioners, Property Bar Association, all sorts and legal action just seems like it's got a great reach.

Unknown Speaker  14:21  
Yeah, absolutely. So what does it what does the article do without giving away too much? Because we want people to go away and read it, but what themes are you pulling out in the article from the report?

Unknown Speaker  14:31  
It's an academic report, and therefore it is something like 70,000 words long, but don't let me put anybody off reading it, because there was actually kind of a two page summary at one point, but the piece in legal action magazine is a much shorter summary of really tried to take the lessons from these overall arrangements. I mean, obviously, they were introduced at a time of complete turn. turmoil, you know, this global pandemic. So it's very difficult to be highly critical of them, you know, they have to be read in light of the context within which they were introduced. And they were short term. Yeah, you know. So the question is, are there any lessons to be learned? Because it seems to me like, we're simply just returning to the pre COVID way of doing things. I think there are lessons there. And I try and summarize what they are. So, you know, I offer an account of whether the measures were effective or not, I mean, the yardstick I use, so the objectives that the working group actually came up with, for it, which was did it reduce volume in the system? Did it take account the effects of the pandemic on parties? And did it mean confidence, maintain confidence in the fairness of the outcome? And yeah, I don't want to give too much away, but they didn't really prove effective in relation to any of those three objectives for all kinds of reasons. Yeah. So I, you know, demonstrate why that's the case, and then offer potentially some recommendations for the future?

Unknown Speaker  16:10  
Well, I mean, I know that your report is being read in the highest of circles, your report is absolutely circulating as one of the key texts to, you know, to be considered in terms of what happens next. So that's great. I mean, in that sense, it's been a very successful report, from what I see, it's really got some traction,

Unknown Speaker  16:30  
you know, I don't just do this, because it's my job, you know, I do this because I want to make a difference. And, you know, I believe in, in this area, and, and trying to improve things. So, you know, it was all about trying to, to learn from this. And, yes, you know, there are some aspects that we simply will never see, again, we'll never need again, you know, there's talk of the Overton Window, this idea of, there's only a certain amount of policies and so on, that the public will tolerate. And I think COVID completely shifted that window. And, you know, we've got this blue sky thinking, didn't we? I mean, you know, this is housing law, and they stopped all possession. Wow, that creates problems for us now, though, because, you know, if you can now almost recommend anything as a reform.

Unknown Speaker  17:23  
Yeah. So what next least? So reports been very successful it will have, I'm sure it'd be very influential over the coming years, would you? Would you revisit it? Possibly. I

Unknown Speaker  17:35  
mean, shall we, I'll always be interested in this, and what are these reforms progress, but I've been fortunate to secure funding from a different source. So this is the Aberdeen financial fairness Trust, which is an 18 month project to try and gather data from occupiers in particular. So I've got funding to focus specifically on trying to understand the experience of households in debt, and just try and understand from them, why they're maybe not engaging, or if they do engage at what stage? And why what motivated them to do that. So and that's going to be based in Southampton, Birmingham, and Glasgow. Okay. So yeah, hopefully, I'll be able to add to it by putting the voice of occupiers at the center of the next project. And I have to say, I'm going to be I'm going to be relying again, on those who were kind enough to, to take part in the last project. So again, duty advisors, practitioners, debt advisors, you know, you are the gateway to this hard to reach demographics. So I would be very grateful if I get the same kind of contribution as I did last time, that would be wonderful.

Unknown Speaker  18:51  
Well, look, we look forward to this hope that you will write again, for lag on that and many other issues, and look forward to seeing your articles in the magazine. Lisa, thank you very much in deed.

Unknown Speaker  19:03  
Thank you.

Unknown Speaker  19:05  
So next, I have the great pleasure of speaking to Fiona Borden, about the legal aid lawyer of the Year awards 2022. And I started by asking her about nominations and when the ceremony is due to take place,

Unknown Speaker  19:20  
right? Yes, Nominations are open, and we'll be closing on the 25th of April. The ceremony itself will be on the 12th of July. And this is our 20 year anniversary of analysis. Legal Aid practitioners group has been organizing the awards on a nonprofit basis for the last 20 years. And this year, we're going back to Lally roots with our first in person ceremony since 2019. Obviously due to lockdown the last two years have been virtual ceremony, which have been great, but I think we've all really miss not being able to be together in one room as one community Tea seems to be Everyone is exhausted. And we really need to get together to re energize and take inspiration from each other. And that's what the analysis is all about.

Unknown Speaker  20:09  
Well, absolutely. But the virtual events were amazing. I mean, really impressive.

Unknown Speaker  20:15  
And that was sort of, you know, lovely example of Team rally in action. And we all pulled together. And I think we just, we wanted it to be a ceremony that was worthy of the profession that we celebrate. But as I say, this year, we're, you know, we're very much looking forward to all being able to be together. And there are 11 award categories. Were seeking nominations in any new ones. Yes, we have, we've got, we're doing something different this year, we've got a category for legal aid support staffers. And that's because we obviously recognize that it's not just the lawyers, who are essential to delivery have access to justice for their clients, support staff around them. And particularly after the last couple of years, where, you know, people have had to really pull out all the stops, sometimes from moving overnight to virtual service delivery. So we've kept the category quite loose. So it really is open to anyone working in a support role at a legal aid organization be that a firm or nonprofit agency or barristers, chambers. So that's new. So we're very much looking forward to seeing the kind of nominations that we get for that.

Unknown Speaker  21:25  
Yeah, that's great. That's a really great innovation. But let me ask, so for somebody who's wants to nominate somebody, but hasn't done it before, where's the best place to start with that,

Unknown Speaker  21:35  
the best way to start is to read the guidance, which is on the website, which tells you the criteria for each of the award categories, you can nominate people in more than one category. So you could be a legally newcomer, and I don't know, a public lawyer. And then it's just a case of describing for the judges what that person does what makes them exceptional, and then adding supporting testimonials. And we always get an amazing array of testimonials from clients, from colleagues, sometimes from competitors, from other professionals involved in the justice system, sort of social workers, psychologists, sometimes members of the judiciary, there seems to be so much kind of goodwill and support out there. And I know people do spend a lot of time and effort I'm carry in putting together a nomination, which we really appreciate. And we read every single word, and it is one of the most rewarding things that I do. It's it's it's joy. It really, really is. And I should also say we must thank all our sponsors, without whom there wouldn't be no rallies. And that includes neglection group, which is our media partner, and a very kind of Star Wars photo of the awards for many, many years. And you can read all about the alleles in the magazine.

Unknown Speaker  22:55  
Yes, you certainly can. So folks, if you want to nominate somebody, that's also a very good starting point. For Jonas and Chris minutes article in March legal action magazine, that'll give you the lowdown on the Lally awards, and you'll be off and running. Do nominate somebody I'm sure you know, a legal aid hero, why not nominate them for a rally Fiona? Thanks very much.

Unknown Speaker  23:19  
Lovely. Thanks, Simon.

Unknown Speaker  23:21  
Okay, let's move straight along and talk to Simon Crighton about recent developments in prison law. Okay, so Simon, you've been doing the prison law developments for some considerable time for lag, there's quite a lot of material in February's edition of the length magazine. Start with this policy and guidance before you get on to the case law. Can you say something about I think that's to do with parole? Could you just say something briefly about that, please?

Unknown Speaker  23:49  
Yeah, I mean, it's very long awaited guidance. And it's to do with how the parole board should deal with people who lack capacity to participate in parole hearings. And it's it's really, it's really important policy, it comes from a case that goes back to 2020. where the problems are found not to have proper policies in place to make sure people who lack capacity can participate.

Unknown Speaker  24:17  
Right. Okay. Good. And a couple of parole cases as well, I think one court of appeal and one high court. Yeah. So

Unknown Speaker  24:25  
the in the court of appeal was an interesting one, because it was about the new rate reconsideration mechanism that was introduced a couple of years ago, which basically lock the allows the parties to appeal against a decision to a judge at the parole board. The Court of Appeals said that the that the process is lawful. So we've got quite a detailed explanation as to why they reached those conclusions.

Unknown Speaker  24:49  
I mean, that's just it's really required knowledge. And isn't it for people in this area? Yeah. I

Unknown Speaker  24:55  
mean, it's absolutely essential. It's about explaining why why by the court thinks that the current probe or rules are lawful and not Ultra virus

Unknown Speaker  25:05  
good. And cases on category A status discipline and criminal prison discipline and criminal charges almost an area of law within an area of law action.

Unknown Speaker  25:18  
The Category A cases are coming thick and fast at the moment, and there isn't actually a lot of new law coming out. But what is emerging is the range of cases that the court are considering as to when category A prisoners are entitled to oral hearings. They are fact specific, but the case reports give pretty good indications of the type of case you have to make for a prisoner to justify an oral hearing on their criminal charges. And it's a fascinating, possibly slightly niche, but absolutely fascinating area, particularly for criminal practitioners who have seen clients in prison. And it's about the interplay of when a criminal charge would make it unlawful to then charge someone with an offense against prison discipline and vice versa. Right. So it's pretty important for for people who have a running criminal defense cases for people in prison in prison charges as well.

Unknown Speaker  26:15  
And then lastly, something on legal correspondence. Yeah. Legal correspondence

Unknown Speaker  26:19  
is always something which is pretty close to the hearts of prison lawyers, because the whole concept of modern prison law really started with a European court case, back in the the start in the 70s, and finished in the 80s, about the right to privilege legal correspondence. And it's an absolutely fascinating case, looking at those principles as they apply now in in 2021, and B, the types of correspondence that remain privileged and the steps that the person has to take to to uphold that. Right.

Unknown Speaker  26:56  
Wonderful. Well, lots of detail there. The reports are well, they're concise, but they're long, presumably because the detail has to be there. But so very useful. I mean, looking at looking at February's edition, I note that that's the first of a two part article and where the second part will be March 22. Can you say anything? Just give us a flavor of what's coming up in March, please, Simon,

Unknown Speaker  27:20  
there's a teaser for people who haven't yet been able to see the report by Justice about the their recommendations on a new parole system. The the Justice report is available. And we've provided a quick digest of the main recommendations about how justice see the future of parole. There's also a pretty critical case that is central to most prison lawyers cases about what we call disputed allegations. And the Pro Bowl has operated a policy which the Court of Appeal has now found to be unlawful in relation to how they were analyzing disputed allegations. And given that these arise in so many parole hearings, people really need to see that to understand what the limits of the probe powers are now in the area.

Unknown Speaker  28:15  
Yeah, good. The column is written by by yourself but also your your colleagues, Hamish Sharma and drain drain Ryan. In my own area in the house in law update, we mere mortals often writes in with little case reports from even from the lower courts, because they're just very, very useful practitioners writing to you with things to you know, suggested areas to kind of focus on how does that work?

Unknown Speaker  28:40  
They do we, the prison law community is very collaborative, and very cooperative. And so as well as scouring the case reports, we are quite reliant on our colleagues to keep us updated and things that they've discovered or uncovered and exciting developments. So it's very, we're very lucky to work within a community like this.

Unknown Speaker  29:02  
Fabulous. So listeners, if you are listening to this, and you want to get in touch with Simon or his colleagues regarding prison law and recent developments, how can they do that sign what's the best way for them to get in contact?

Unknown Speaker  29:16  
But the best way is probably an email to me at bat Murphy. It's a stock Creighton murphy.co.uk, the email addresses on our website. We're always delighted to hear from people the other way is through the association of prison lawyers.

Unknown Speaker  29:32  
That's fantastic. Simon, thank you so much for coming onto the podcast and giving us that wonderful roundup of February's edition and also the teaser for March. That's wonderful. Thanks for the writing that you do. I'm sure your colleagues in the prison law community are extremely grateful. And thanks once again. Thank you. Okay, well, we hope you enjoyed that episode of legal action group podcast. please do contact legal action with updates to case law policy or practice. Or if you want to write for the magazine itself, do get in contact. For now, thanks for listening and we hope you can join us again next time. Cheerio.

Transcribed by https://otter.ai