Mischief Wrought

The​ United Kingdom has in recent years been blighted by a compensation culture generated by health and safety legislation and human rights laws and promoted by well-paid legal aid lawyers and credulous judges. We know these to be facts because newspapers and electronic media have exposed them fearlessly. David Cameron, when he was prime minister, was so concerned about the situation that he appointed the veteran Tory politician and entrepreneur Lord Young to report on the state of health and safety legislation and ‘the rise of the compensation culture over the last decade’. Young reported that the problem, fuelled as it was by media stories, was ‘one of perception rather than reality’. Nothing daunted, the prime minister wrote in his foreword to the report: ‘A damaging compensation culture has arisen …’

The term seems to have originated in 1993 in an article by Bernard Levin in the Times. Subsequent research found that instances of its use by the press had by 2004 risen from almost zero to more than 450 a year. In 2004 the Better Regulation Task Force, reporting on routes to redress, subheaded its report ‘Compensation Culture: Exploding the Urban Myth’. Shortly afterwards, legislation was enacted to control the claims management business and to shore up defences to negligence claims, while the Commons Constitutional Affairs Committee found that, far from there being a compensation culture, there was a growing culture of risk aversion ‘and a mistaken perception that it is caused by litigation’.

Like most myths, the compensation culture myth was not wholly unfounded. The long-term attenuation of legal aid brought with it fees conditional on success, which rewarded ambulance-chasing by claims management companies. But these entrepreneurs were not the tabloids’ principal target. The Sun and the Daily Mail needed individuals for their readers to hate or fear: scroungers who made piles of cash out of trivial or imaginary injuries, whingers who turned their self-regarding grievances into human rights claims, and legislators and lawyers who enabled and encouraged them to do it. These have become our folk-devils.

Enter, ex machina, the Secret Barrister (hereafter ‘SB’ and assumed for grammatical and syntactical purposes to be a woman), a blogger whose first book, The Secret Barrister: Stories of the Law and How It’s Broken (2018), knowledgeably and angrily denounced the systematic (and, I would add, Treasury-driven) neglect of criminal justice and the dismantling of the legal aid system in the successive hands of Labour, coalition and Tory governments. This time SB is concerned with the mischief wrought and the harm done by false reporting of law and legal issues. The two topics are not unconnected. Who is going to vote for the support and renovation of a system which lets the guilty go free while their victims are humiliated or ignored and the lawyers book their next cruise?

In 2018 YouGov conducted a survey attempting to find the most fertile ground for a new political party. It found that the issue on which most Britons felt unrepresented was justice. SB’s commentary is worth quoting:

This was towards the end of a decade in which legal-aid cuts had left victims of domestic violence at the mercy of their abusers in the family courts; employment tribunal fees had prevented exploited workers from claiming unpaid wages from exploitative employers [a government scam stopped by the Supreme Court]; homeless families were denied legal help to get off the streets; disabled people were unable to challenge wrongful punitive government sanctions; children were forced to represent themselves in deportation proceedings; average prison sentences reached record lengths; we imprisoned more people per capita than any other country in Western Europe; £1 billion cuts to prisons coincided with soaring rates of overcrowding, violence, self-harm and death … and politicians routinely and boastfully ignored the rule of law where it proved politically inconvenient.

What did YouGov find? ‘The complaint – about which people felt more strongly than the National Health Service, education or the economy – was that the justice system was “not harsh enough”.’

SB’s journey to this depressing point starts from a synoptic survey of what the average tabloid reader has been led to believe is going on in our legal system: sick babies condemned to die by NHS death panels (an invention of the US insurance industry, used to denounce Obamacare), their decisions rubber-stamped by unelected, out-of-touch judges; illegal immigrants spared deportation because they have a pet cat, thanks to the EU’s (sic) human rights act (see Letters, 27 September and 11 October 2018); extravagant taxpayer-funded compensation for cleaners who trip over mops; ‘jackpot figures paid to litigious employees aboard the gravy train of the discrimination industry’; the most expensive legal-aid system in the world (this fiction a speciality of the arithmetically challenged former minister Chris Grayling), put at the disposal of jihadists and other public enemies, with early release from their comfortable accommodation for the few who do go to prison, while householders who have a go at a burglar face jail.

Each of these urban myths is documented by SB, who attempts chapter by chapter to explain how the law today deals with home, work, family, health, human rights, personal liberty, due process and democracy. It’s an advantage, in doing this, that she has previously demonstrated that she is no apologist for the present legal system. Her case is that the media repeatedly takes aim at false targets and by doing so ignores and perpetuates the law’s real iniquities.

We all recall the American woman who in the 1990s collected a fortune in damages from McDonald’s when she was splashed by a cup of their coffee as she sat in a stationary car. You might not have known it from the derisive British press coverage, but it turned out that McDonald’s had knowledge of something like seven hundred similar incidents over the preceding decade, caused by their practice of selling takeout coffee heated to between 82 and 88ºC. When the coffee spilt as she tried to get the lid off the container in order to add sugar and cream, 79-year-old Stella Liebeck (her name unfortunately misspelled by SB, possibly adopting a disingenuous tabloid typo, as ‘Lieback’) suffered third-degree burns to her groin and legs, requiring skin grafts and eight days in hospital. Initially she sought from McDonald’s her medical expenses and the earnings lost by her daughter in taking care of her, a maximum of $15,000. She went to a lawyer when McDonald’s offered her $500. In court McDonald’s admitted that its coffee as sold was a legally defective product. (In Britain, by contrast, a similar group claim by 36 McDonald’s customers failed: under our consumer protection law the coffee was held to be neither a defective product nor negligently packaged.) SB could have added that Mrs Liebeck did not receive the $2.86 million awarded by the New Mexico jury: her damages were reduced by the judge to $640,000.

The courts assailed by the tabloids in 2017 for allowing life support to be withdrawn from the pitifully and incurably ill baby Charlie Gard are the same courts that, applying the uniform test of the child’s best interests, overrode the refusal of doctrine-driven parents to let their child have a life-saving blood transfusion. By the time it had become clear that neither the American neurologist proposing the experimental use of nucleoside therapy nor the Vatican’s Bambino Gesù paediatric hospital, nor for that matter Donald Trump, who had begun tweeting offers of help, could alleviate Charlie Gard’s suffering, Great Ormond Street’s medical staff had run a gauntlet of abuse, demonstrations and threats cranked up by religious fundamentalists, but amplified and disseminated by sections of the news media. The words ‘responsible journalism’ do not spring readily to mind, any more than in the comparably tragic case of another British infant, Alfie Evans, which Fox News and Breitbart, assisted by Nigel Farage, characterised as the practice of eugenics by a state-run medical service.

As to the health and safety canards (conkers banned in school playgrounds, sack races banned on sports days, circus artistes required to wear helmets, and on and on), the dismissive spelling ‘elf n safety’ used by journalists such as Richard Littlejohn to suggest that it’s an infantilising regime run by ignorant jobsworths obscures the fact that since 1975 there has been a reduction of four-fifths in workplace deaths and of well over two-thirds in reported workplace injuries. As SB acknowledges, however, the media’s aren’t the only fingers in this pie. A number of law firms live by encouraging people who have had an accident – hospital, road traffic, domestic – or have had trouble at work, to make a claim. There is nothing bogus, however, about the generality of these claims: what matters is that a competent lawyer can make the difference between a good and a poor outcome. Commonly the defendant will be insured, and it may be worth the insurer’s while to pay the claimant to go away.

Such legal claims are not myth-dependent. In fact the Health and Safety Executive maintains a myth-buster website. But there has been a proliferation of fraudulent or inflated injury claims dependent not on health and safety myths but on the manipulation of evidence. Whiplash injuries, dependent largely on subjective accounts of symptoms, became a justified cause of concern. But the government’s response has been to use the problem as an opportunity to raise the small claims limit, pushing large numbers of people with genuine claims into a situation where they would not be able to recover any legal costs if they won. They have to either muddle through on their own and very possibly lose a sound case or be prepared to give lawyers first call on their damages. The principal beneficiary, SB suggests, has been the insurance industry.

A special place in SB’s hell is reserved for Laspo (the Legal Aid, Sentencing and Punishment of Offenders Act 2012) – ‘an act of gross constitutional vandalism’, ruinous not only to countless individuals to whom it has denied access to legal advice and representation but to the justice system itself. Yet again, she quotes dismissive journalism – here Leo McKinstry in the Express ‘chuckling that “this kind of alarmist talk could hardly be more absurd.”’ The trouble was that criminal legal aid had for years been milked by a combination of inflated lawyers’ fee claims and inefficient administrative oversight of them. The simple principle that the remedy for abuse of a worthwhile system is to stop the abuse, not abolish the system, was brushed aside as the Treasury saw an opportunity to staunch what it had for decades regarded as an unstoppable haemorrhage of public funds. The result, as SB has argued in both her books, is a legal system in tatters.

One apparently minor but actually serious event flagged up by SB is Peter Hain’s outing, under the shelter of parliamentary privilege, of Philip Green as the beneficiary of a court order giving temporary anonymity in a current case. MPs and peers – and certainly Lord Hain – know that the 1689 Bill of Rights, by barring the courts from questioning anything done in Parliament, immunises its members against any penalty for contempt of court. The historical quid pro quo is that members respect court orders whether they agree with them or not. What is equally deplorable is that Hain was not stopped by the Lord Speaker when he announced that he considered he had ‘a duty under parliamentary privilege’ to breach the order. If he had a duty, it was the opposite – not least because the separation of powers, of which this rule is a keystone, is likely to come under attack as the Johnson government considers possible forms of revenge on the judiciary for frustrating its endeavours to bypass or sideline Parliament. Hain may come to regret the breach he has made in this particular wall.

SB goes on to cite a passage in David Blunkett’s memoirs in which the former Labour home secretary expresses surprise at the lord chief justice’s declining an invitation in 2003 to a private dinner where they could ‘run through issues informally and quietly’. To my knowledge Blunkett is not the only home secretary in recent years to have proposed such a private conversation. The constitutional incomprehension it betrays is troubling. If the courts have one enduring feather in their cap, it is the principle that nobody has special access or status, and that every litigant, government ministers included, stands before them on an equal footing. It is entertaining to imagine what a home secretary would have to say if the Immigration Law Practitioners Association or Asylum Welcome invited some senior judges to an informal private meeting about issues that concerned them.

It’s tempting to use the word ‘tabloid’ as a surrogate for all the worst practices of the British press. But SB reminds us that it was the Daily Telegraph whose legal correspondent Joshua Rozenberg resigned in 2007 when the news desk insisted on adding to a story he had filed on a human rights case a statement (which he told them was not true) that the decision could open the way for civilians harmed by military action in Iraq ‘to sue the Ministry of Defence for millions of pounds’. In these and a variety of other ways the press does not simply report news: it creates it. SB offers piquant vignettes such as the claim launched in 2014 by the Sun, after years of excoriating the ‘hated’ Human Rights Act and demanding its repeal, to protect its statutory right of free expression when someone got hold of one of its reporters’ phone records. The Daily Mail (Cassandra to ‘a nation imperilled by the Human Rights Act’) has also litigated to vindicate its own human rights.

The Daily Mail’s now notorious slur on the judiciary as ‘enemies of the people’, when in 2016 the High Court ruled that notice to leave the EU had to come from Parliament rather than from ministers, now forms, with a question mark, the title of Joshua Rozenberg’s survey of where the law has recently been going.* On Brexit, criminality, parole, privacy, Parliament, assisted dying, terminal illness and much else, Rozenberg’s well-informed account chimes with SB’s excoriation of much of the news media as spreaders of prejudice and ignorance about the law. Whether or not SB would endorse Rozenberg’s generous answer to the question in his title – ‘Far from being enemies of the people, judges are just about the only friends we have’ – the politicians and their advisers currently deciding whether and how to clip the judges’ wings might do well to read these books.

I admit to having been among those who, when The Secret Barrister was originally published, squirmed at the Boy’s Own Paper-type pseudonym and feared that this was going to be an exercise in hyperbole. And it’s true that SB’s prose has the declamatory tone that might characterise an advocate’s speech to a jury. But the case against the law’s excessive solicitude (or occasionally its disregard) for individuals has been heard frequently and loudly, and it’s not a bad thing that a professional advocate is now shouting back.