Legal Hackette Lunches with Sir Edward Garnier QC
~ Catherine Baksi
Over risotto and roast chicken at the Adjournment in Portcullis House, the libel silk who successfully represented Lord McAlpine, following allegations made on Twitter by Sally Bercow, and former Solicitor General discusses privacy injunctions in the internet age, why he won’t be publishing his tax return and the likely successor to David Cameron, if the…
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Legal Hackette's Brief
Over risotto and roast chicken at the Adjournment in Portcullis House, the libel silk who successfully represented Lord McAlpine, following allegations made on Twitter by Sally Bercow, and former Solicitor General discusses privacy injunctions in the internet age, why he won’t be publishing his tax return and the likely successor to David Cameron, if the public vote ‘out’ in the EU referendum.

As the Sun on Sunday and launched its bid to overturn the celebrity ‘threesome’ gagging order, following the naming of the pair in publications in America, Scotland and Ireland, Sir Edward Garnier QC insists that the situation does not make the law an ass or mean it is outmoded.

‘It just demonstrates the difficulties with privacy injunctions when you have a worldwide media system, the internet and social media age. Injunctions contra mondum – against the world – have become rather more difficult to enforce.

The law, he says, is ‘constantly catching up’. But adds that ‘judges are not hide bound and, guess what, judges look at the internet too’.

He ‘couldn’t give a monkey’s’ about the threesome story itself, but accepts that it ‘sells newspapers’.

Though he knows the names of the individuals concerned, Garnier says he does not know enough about the underlying facts or the basis on which the case was put to give a view on whether the Court of Appeal was right to grant the injunction.

The court, he surmises, would have heard the King Canute argument about the futility of granting an injunction, when the parties can be named elsewhere.

‘But simply because something is easy to evade or avoid, doesn’t mean to say the decision was not right.

‘And whether it was right or wrong, if you think the decision is wrong, there are appeal mechanisms rather than people taking the law into their own hands.’

He does not condone breaching the injunction, but the former Guardian lawyer understands the frustration of newspapers when the story ‘is running wild on the internet and is out there in the United States and jurisdictions beyond this one’.

He has some sympathy with the public grievance at the rich and famous who appear to court the media when it suits them and then use their wealth to gag the press when the attention is unwanted.

Where a celeb has courted publicity, Garnier suggests, a court would be less sympathetic to a plea to have their privacy maintained.

But he adds: ‘It depends which area of their life they are trying to protect. You may have a reputation as a footballer and have courted publicity about that, but you may not have shown off or courted publicity about your adulterous affairs.

‘It’s possible to promote yourself as a footballer, without having yourself promoted or exposed as an adulterer’.

Garnier supports the decision of the Commons’ speaker, John Bercow, banning MPs from naming the couple.

‘It’s a pity when members of Parliament go behind orders of the court [as John Hemming did in relation to footballer Ryan Giggs], in order to demonstrate that they know something and think they have the right to let everyone else know that they know’.

It is, he believes, important that the ‘two limbs of the constitution – the law and Parliament – respect each other’ and he doesn’t want to see them ‘taking lumps out of each other’.

An Irish-based political blogger who identified the pair online using an American-based server dismissed the notion that he could be arrested, telling The Times’ daily legal bulletin, The Brief: ‘You can’t arrest foreign people for doing things in their own country. What are the English going to do? Send the Royal Navy to shell my home?’

Agrees Garnier ‘They are no more going to send the Royal Navy to his home than they are to California or Ohio’.

But he adds: ‘He’s committed a contempt within this jurisdiction in the sense that his blog is readable in this jurisdiction, so it is published here’. As such, h he may find himself in trouble if he steps off a Ryan Air flight in London.

Despite the debacle, Garnier insists that privacy injunctions are not rendered pointless by the internationalisation of the media. ‘Some have nothing to do with celebrities, but relate to medical confidence and all sorts of other things that it is important to protect’.

Panama Papers fall out

Garnier plays down the impact of the tax dodges revealed as a result of the massive data leak from Panamanian law firm Mossack Fonseca.

‘People do take an interest in it, but then people take an interest in all sorts of things, which dispassionately looked at are quite uninteresting. That’s not to say that tax evasion by political leaders, be they in Russia or China or wherever, isn’t of public interest.’

And any damage caused to Prime Minister, David Cameron, as a result of the coverage of his late father’s tax affairs, says Garnier, was ‘staunched’ by his statement to the House of Commons early in the week.

‘The story for the opposition and for those who want to embarrass David Cameron is that he and his team mishandled their reaction to the story, but there was nothing in the substance of the original story for him to be embarrassed about’.

The MP for Harborough, in Leicestershire, says he has received a couple of emails, to which he has not replied, from constituents asking if he has off-shore investment trusts and whether he will be releasing his tax return.

Garnier says he has no offshore trusts and the answer to the latter question is an emphatic ‘no’.

If he were Prime Minister, he says, he would not have released his tax details. But adds: ‘I’m not the Prime Minister and I don’t have the pressures on me that he had’.

The story, he suggests, has created a ‘feeding frenzy’ and although the ‘door has been opened’ on the tax affairs of the Prime Minister and Chancellor of the Exchequer, Garnier thinks it would be ‘unwise’ to extend it further.

‘I don’t think anybody’s tax affairs should or needs to be revealed. People are prurient and enjoy poking around in other people’s business’.

Garnier sees nothing wrong in the existence of offshore financial services, defending them as a way for countries with no ‘indigenous industry’ to make money and an acceptable way for people in certain situations to deal and invest.

‘There’s nothing immoral or illegal about being an offshore country or having an offshore financial services industry. What is wrong is committing crime’.

Investigatory Powers Bill

The barrister and former solicitor general does not share the concerns of the Bar Council over the lack of measures to protect the safety and confidentiality of sources and whistle-blowers or those seeking legal representation, in the bill dubbed the Snoopers’ Charter, which gives greater powers of surveillance to the police and security services.

‘I think there is, perhaps understandably, misplaced and exaggerated concern,’ he says.

‘If someone is not involved in criminality, they won’t be investigated. There must be some basis upon which to investigate somebody and on which to persuade the commissioners that surveillance ought to be permitted.

‘The police don’t just say “let’s go out and do a bit of surveillance; we’ve got nothing else to do”.’

He is content to trust the police to operate within the law, though accepts that is not always the case.

‘I’m not saying the police are perfect; they are occasionally very stupid and badly behaved. But just because they behave like idiots on some occasions, doesn’t mean they do so on every occasion’.

Garnier is scathing of the police’s handing of the investigation into historic sex abuse allegations made against senior politicians, including his friend, the former Home Secretary, Lord Brittan, and other prominent members of the establishment.

In relation to Brittan and his widow, Garnier says, the behaviour of the police was ‘just dreadful’.

‘The poor man died with allegations of child sex abuse and an allegation of rape from 40 years ago still hanging over his head.’

Garnier has dealt with a number of cases of historic sexual abuse, and says: ‘They leave the most appalling long-lasting damage on the victim.

‘I’ve seen 50-year-old women who were abused when they were six, seven or eight, who are still suffering the consequences.’

And he states the way the ‘idiotic way’ that the police sometimes carry out investigations is ‘a real disgrace’.

‘It does the victims of genuine sex abuse cases no good; it does the justice system no good and it’s unfair on those who are pilloried.’

He adds: ‘Because a lot of people made a lot of mistakes in relation to Jimmy Savile, it doesn’t mean that you have to misconduct investigations into other people’.

Should the law be changed so that suspects are not named?

To this question, he says, there is no easy answer. ‘There’s a perfectly legitimate argument to say that by identifying the accused at an early stage you may enable other alleged victims to come forward and help with the case.

‘And in theory the acquittal, if and when it comes, is supposed to be sufficient to vindicate the accused, but of course, it never does’.

He represented a man falsely accused of rape, who successfully sued his accuser for defamation and received around £200,000 in damages.

‘But you can’t have a situation where every rape acquittal leads to the prosecution of the complainant.

‘I really don’t know what the answer is, but at the minute there is no satisfactory system whereby people who are falsely accused can have their reputation repaired’.

Prison isn’t working

As shadow prisons minister, Garnier looked into the effectiveness of the prison service. ‘Broadly, our system doesn’t work very well at stopping people from reoffending,’ he observes.

A trustee of the Prison Reform Trust, he is encouraged by Justice Secretary Michael Gove’s approach. ‘He is a justice minister who is genuinely interested in the subject. But like every government minister he is beset by budgetary problems’.

Garnier’s solution is to reduce the prison population, enabling more money to be spent on rehabilitation, and ‘beefing up’ the community punishment system, which he describes as ‘a mess’.

There are too many people in prison who should not be there, he argues, citing the large proportion of the prison population who are mentally ill or addicted to drugs and who should either be in hospital or be given help to get off drugs.

Observing that ‘the state is not a good parent,’ he also notes the high number of people who leave care and end up in the criminal justice system.

Tackling economic crime

As solicitor general, Garnier was instrumental in the introduction of the American –style deferred prosecution agreements (DPAs) for those companies held to account under the Bribery Act 2010 and for several other financial crimes.

After the first DPA was approved by the court last year, lawyers predicted a slew would follow, but that has not immediately happened. But Garnier speculates that confidential negotiations between the Serious Fraud Office and potential respondents to DPAs, are on-going.

And his assessment of the beleaguered SFO? ‘It’s got a huge caseload and it is under-resourced’.

‘When I went to Manhattan as solicitor general, looking at the American way of doing DPAs, I remember telling the district attorney that the SFO’s budget was coming down from something like £40m a year to around £29m a year. He asked “is that just for one office” and I told him that was for the whole operation in England, Wales and Northern Ireland.

‘And he didn’t say this, but I make it up: “I spend more on flowers in my office than that”.

He explains: ‘Until recently we’ve never really taken economic crime as seriously as we have blood and guts crime. People say “it’s only money, nobody’s hurt” or “it’s only a bank or insurance company – so what”.

‘But actually these are very serious crimes that undermine the whole way our economy works’.

One of the problems in tackling corporate economic crime, he notes, is the fact that the prosecuting authorities still have to grapple with the Victorian ‘directing mind’ principle.

‘It’s quite difficult with massive international companies to work out where the directing mind is. If your agent or divisional manager in some far off place, does something he shouldn’t, does that attach to the directing mind of the board in London?’

Garnier would like to see the law move to the vicarious liability system that is used in the United States.

The first DPA, in which he acted for the SFO, involved a charge under section 7 of the Bribery Act 2010 – failure to prevent – which, he says, is the nearest we get to vicarious liability.

He would also like to see an increase in the number of offences that come within the ambit of failure to prevent. ‘Until we do, people will be feel they can get away with misconduct’.

‘The Prime Minister is clear that corruption is a bad thing and he wants to devote more government time on dealing with it. But you need to provide the SFO and the CPS with the necessary weapons to do it. It’s not just money; it’s also deployment of expertise’.

Human Rights Act v British bill of rights

Garnier does not support the proposal to replace the Human Rights Act, which allows UK nationals to rely on rights contained in the European Convention on Human Rights before the domestic courts, with a British bill of rights.

‘We should remain adherent to the ECHR. I’m not sure a British bill of rights would add anything to it – we’re either a member of the Convention or we’re not.

‘And even if we were to come out of the Convention or if we were to pretend we were to come out of it by having a British bill of rights, I can’t believe that the judiciary would dis-apply convention jurisprudence.

Brexit

But on the UK’s membership of the EU, Garnier is with the PM on this, saying: ‘I have taken a fairly positive view about the European Union since before I became an MP’.

‘The strongest argument for remaining in the European Union (accepting that it’s one of the most frustrating institutions you can possibly come across, it’s in many respects badly run, its accounts are a pile of the proverbial and it’s terribly difficult to get decisions made) is that we have a single market of five hundred million people and that’s not a bad thing to have sitting on your doorstep’.

On which way the vote will go, he says, ‘it is too close to call. It’s going to be very close’ and affected by things that have got nothing to do with the European Union.

If the vote does not go the PM’s way, Garnier says the ‘general received wisdom’ is that Cameron ‘wouldn’t last until the weekend.’

‘If that happens, and I hope it doesn’t, we will need an orderly handover and not a rushed leadership election.

‘If the vote is ‘out’ the obvious candidates for who would succeed Cameron, speculates Garnier, would be London mayor, Boris Johnson or justice secretary and lord chancellor, Michael Gove, but there will no doubt be others throwing their hats in the ring, such as Home Secretary Theresa May’.

Role of the Lord Chancellor

On the role of the Lord Chancellor, Garnier believes it should be held by a lawyer and he would like to see it separated from the role of Justice Secretary.

Secretary of state for justice, he says, is a ‘spending role’ like any other secretary of state and the holder does not need to be legally qualified.

But, on the position of Lord Chancellor he states: ‘The judiciary needs a voice in cabinet and it’s important to have a reasonably senior and respected lawyer in cabinet’.

Reshuffled

Appointed Solicitor General in the coalition government following the May 2010 election, Garnier was, to the surprise of many, replaced by Oliver Heald just over two years’ later.

On being shuffled out, Garnier is sanguine, observing: ‘Politics is a strange business. If you come into politics thinking you are going to be seamlessly promoted purely on your charm and merit, you’re heading for a fall.’

Adding: ‘The trouble about being in a coalition is that the prime minister needs to let everybody have a go’.

He was not surprised when his colleague Dominic Grieve QC was sacked as Attorney General almost two years later, but says he would not have got rid of him.

And how does he rate the current AG/SG duo?

‘Well they’re there’.

‘It’s fair to say, and it’s not controversial, that the bar was surprised by their appointments, for two reasons – (a) they hadn’t heard of them and then, (b) when they found out who they were, they realised they didn’t have any high court or appellate experience’.

He adds: ‘They’ve survived longer than I did and they’ve made a pretty good fist of it’.

Why law?

The son of a colonel, Garnier read history at Jesus College, Oxford before studying for the bar, which he says he did initially to give him a couple of years to think about what he wanted to do, but found he enjoyed it.

Though his great-grandfather had been a barrister and a more distant ancestor had been Solicitor General, Attorney General and Lord Chief Justice in the eighteenth century, he did not have close links to the profession.

He recalls his ‘luck’ getting into One Brick Court chambers, in which he has spend his career: ‘My father happened to live next door to a partner at Bird & Bird, John Hartley, and his younger brother, Richard Hartley, was a silk in those chambers. So I rang him up and asked to see him.

‘He took me to lunch with a chap called Richard Rampton and half way through lunch he said “oh by the way, Richard, Edward’s going to be your pupil in September”.

‘Richard said ok and I’ve been there ever since’.

Leon Brittan was in the same set. ‘I used to go into his room and talk about politics. He told me “stop talking about it and go and do something about it.’ So here I am’.

His son is following him in to the law and is currently doing a pupillage in a shipping set. His advice to aspiring barristers is ‘don’t go into it unless you are prepared to put your back into it’.

There are, he says, two bars – the privately funded bar and the publicly funded bar.

‘The publicly funded bar is impoverished. There are hundreds of utterly wonderful and dedicated people working at what’s left of the criminal legal aid bar earning peanuts.

‘I heard of a barrister who went down to a hearing at Winchester – they were paid £45 for the hearing and it cost them 50 quid return to get there’.

He warns that the derisory pay will cause the most able criminal barristers to quit, with the knock-on effect on the judiciary. ‘We will have to have inadequate people, both as advocates and as judges’.

No longer in office, Garnier continues his media law and corporate criminal practise at the bar.

His practise is predominantly advisory, so he is not in court much, making him able to combine the job with parliamentary and constituency duties. ‘I’m quite capable of bashing out a letter to a constituent about a drain or a bus stop and then advising on section 7 of the Bribery Act or on whether an article is defamatory’.