Welcome to ERA – Academy of European Law

Hello,
rather unlike, I think, every other lawyer or non-lawyer whose addressed you over the last day and a half, I don't have notes which you can follow. That's on purpose. I like to see where the conference is going, before I think about what to address you on. What I'm going to address you on is two matters concerning my life.

The second thing is my successful case against the BSB and drawing lessons out of that. But the first thing I think is important for me to do and is very hard for me to do, it concerns my attitude towards disabled people, before I had a stroke. I had a stroke on the last day of last millennium and if I were at all a believer in faith I would believe that this uniquely places me, having had all millennium, last millennium, days in court as an able body practitioner, and all of this millennium days in court as a disable practitioner, but I don't.

Now, what I want to tell you about my attitude towards disabled people? Well, why do I have found it so hard to say? I was claimant representative of all kinds of discrimination trials in the UK Courts. I was at Cloisters Chambers, which is the top set in England for discrimination trials.

So, why is it I find it is so hard to say? I will tell you, because it's very hard for anyone to say. I looked at disabled people as other than myself. I looked at disabled people as other than myself. I looked at disable people as other than myself. I was disability-ist. It's very hard for me to say that. I won cases for disabled people among other discriminated people. I championed disabled people and their rights, but I didn’t honestly think I could go and have a celebratory cup of coffee or glass of champagne with the disabled person.

None of my colleagues were disabled people, none of them. I knew of barristers who'd suddenly had a debilitating illness and were disabled and invariably they went and started another life than being a barrister; it's hard for me to say.

Why is this of interest to you? The first lesson I want you to take home with you, is that we can look at regulations all we like, but if you look at regulations and don't understand that there is a problem, and this is why we are here, why you as judges and you as prosecutors need that training, is because there is a problem, and that problem is disabled people don't enjoy fundamental human rights like able body people do. Period. It's very hard, but it's true.

And if you look at the length and complexity of the international covenant that we've been looking at, if you consider why it should be that the world’s lawyers and the world’s politicians are coming together to hammer out this system of laws, or quasi-laws, international laws, it's because there is a problem here. And the other part of the lesson I want you to take home with you is, intelligence is not the answer, I keep on saying it, I'm sure many of you will have heard me saying it in conversation, but there were really bright judges in South Africa during the apartheid years, really bright; and really bright judges in England before the ban on slavery. They had their cases like you do, they processed their cases like you do, they gave their judgments like you do and yet they helped continue in one case inherently racist society, and in the other case an inherently anti-human society.

Now, let me tell you about my case. It started with me volunteering to do a case involving a sex-discrimination advocate in the court of appeal, so not the highest court in England, but the second highest court, and if you have ever read any English jurisprudence, the case, the organ of cases which describes discrimination and what you have to do, so a high court.

I was to appear in front of three court of appeal judges and I didn't, and it is surprising that I didn't, but I didn’t actually said anywhere on my skeleton argument: “Look, I'm disabled” and the judges heard me for about an half of hour, 45 minutes, and they asked questions. I was frustrated because I seemed to have this block with the lead judge in that I could never get a sentence out.

If you look at the transcript of the hearing, I was interrupted mid-sentence 33 times in half an hour: 33 times in half an hour. Now, I didn’t really think anything more, and we won. In fact we won big time in that the case was reported because it problem solved a situation about having a judgment which clearly says: “This person was discriminated” but which misses out the words “and this person was discriminated”, it described what the appeal courts could do.

And then unbeknown to me, unbeknown to me, the lead judge, with the support of the two other judges, wrote to the appeal panel, sorry, the BSB, the Bar Standards Board, which is an offshoot of the Bar Council, which is if you like the trade union of the barristers, though more concerned with proper court attire than the minimum wage.

And, the judge said: “His skeleton argument was ok. He advanced his client’s case not a bit, due to the hopeless standard of his advocacy”. Now, that judge knew, at least half the trial he knew that I was disabled. I know he knew, because I said: “Look, I'm disabled”, because I got so bombarded with interruptions, I felt I need to say: “Look, I'm disabled”.

And suddenly one of the judges knew from the outset of the hearing, that I was disabled, because she mentioned she’d read an article about me in the London Times yesterday morning, the day before the trial. At no point, did they ever stop and think: “Does this advocate need any sort of reasonable adjustments to make his advocacy effective?”

Three judges of the court of appeal didn't stopped to think that, despite it being in the British Judges’ Rule Book, as far as discrimination is considered, its clear as print can make it, if the advocate is disabled and he needs reasonable adjustments to do his job, the court should consider and supply those reasonable adjustments.

Three court of appeal judges, doing a case on discrimination law, didn’t even bother to grant me a little patience, that’s all that’s required, a little patience, they butted in 33 times in half an hour, 45 minutes, didn't let me finish my sentence and instead of reasonably adjusting and just listening to me with a little patience, they complained to my Bar Council. So the Bar Council met, giving me two weeks to assemble my initial case. They’d had the case for almost a year. The judges never came to me at all for an explanation or never confronted me with a problem, they went straight to the Bar Council. And so the BSB, which is a five-member-panel one layman, one medical representative, two Senior Council and one Junior Council determine my case.

I had my good friend, Karen Monaghan, QCwho is simply the brightest spark among British counsel for claimant discrimination cases. She laid out the fact that they have given me no reasonable adjustment, the fact that this was the first time in 9 years that any judge in any court had complained about my advocacy.

They didn't know how good my advocacy was, because this court hadn’t allowed me the reasonable adjustments of patience, so they didn't know, ergo there was no case to answer. She asked if any of the judges had had any equal opportunities training whatsoever or any advisors had had equal opportunities training whatsoever and the chairman didn't answer the question. We subsequently learned that no members of the panel, lay members, medical experts, advisors to the panel had had any equal opportunities training or any disability training whatsoever.

The English Disability Discrimination Act might as well have been, you know, it was a foreign language almost and they banned me. Firstly, as interim measure from advocating in the High Court, the Court of Appeal the Privy Council and the House of Lords or the Supreme Court as its now called. And after six months we met again, we have a days trial, I made my points again, they rode roughshod over them, the ban about me advocating in higher Courts persisted and they also introduced another ban, that I wasn’t to accept instructions in the lower courts until both my lay client and my judge or employment judge was informed by myself of my disability and my recent medical history.

Every case I did, every judge, the judge who maybe sat on five of my cases, five letters on the file: “This advocate is disabled.” “This advocate is disabled!” Why? I don’t know! Certainly nothing to do with the merits of the case, because in a case my disability may have been relevant, in many cases it wasn’t. I appealed. Eighteen months later some bright spark at the Bar Standards Board Appeal Panel, looked to my case and said: “Why don’t we go for some advice?” “Why don’t we go to a silk?” (21:14), in Matrix Chambers another good discrimination set and just see if what Mr. Horan says is right. And the judgment came back and the Senior Counsel said: “Well of course he is.” Of course Mr. Horan was entitled to expect reasonable adjustments to be made by the Court of Appeal. And, of course, a hearing where he didn’t have those reasonable adjustments made is useless in terms of determining if what happened entitles you to ban him because the reasonable adjustment wasn’t made. Its not Mr. Horan’s fault. And, by the way, if you determine anything else but the case against Mr. Horan is, you know, you do anything but order that Mr. Horan is allowed to practice as a barrister without any restriction whatsoever, you will be discriminating against him. Because after all, one hearing, any able body barrister will say: “I had a bad day”. What is, what’s different about Mr. Horan? He has had one complaint over, at that stage, eleven years since the stroke.

Now, I tell my story and you’re very kind to listen. But it’s a story that I tell with a reason, because I think there are one or two lessons which you can learn as prosecutors and judges from that. Firstly, this is not a story about one rogue judge or one rogue member of the BSB. This is a three man court of appeal and this is a fully constituted Bar Standards Board. They didn’t have at the time of my hearing any training whatsoever on equal opportunities at the BSB, none whatsoever.

They did, with the knowledge of my case, uniformly train everyone subsequent to it, but they didn’t have any training whatsoever for at the time of my case. Senior Judges, that’s in England High Court Judges, Court of Appeal Judges and House of Lords Judges, were recommended by my old Head of Chambers Laura Cox, QC, now Cox LJ, that they should immediately undergo equal opportunities training, including discrimination training, and as you’ll have seen, that is a requirement under Article 13(2) of the International Convention. They still haven’t done so. Why? Training is very, very important. Now, you may not choose to take my word for it. Training is important in the Convention that my country’s government has signed and all of your countries’ government have signed.

Ask yourselves do I get training? If not, why? Because it’s mandatory in Article 13(2) and more importantly why don’t the head of the government legal service, anyone who sits in the court, no matter how high up, do they have equal opportunities training, discrimination law training? If not, why not? That’s a serious debate. I think that also the barristers are officers of the court, and as officers of the court, they are required by Article 13(2) to have appropriate disability rights training. Ask yourself, those of you who are not judges but advocates, have I had any equal opportunities training? Do any of my peers have any equal opportunities training? If not, why not?

The second lesson is the attitude towards the claim that they discriminated against me of the Bar Council. The Bar Council and I were claimant and respondent to my claim of disability discrimination for about 18 months. The Bar Council saw an opinion of the QC that, in my profile notes, there is the judgment, that you can read, that formed the basis of the judgment for 9 months. Still they would not admit that the tribunal below, the first instance tribunal, had discriminated against me.

I had to carry the case forward until a month before trial, I repeat, a month before trial until I got the Bar Council into a position where, as part of a settlement agreement, they admitted that, for 18 months, they discriminated against me. I can’t tell you how much that, the 2 items, affected my practice. I guess I had had to build up my practice again after coming back after the stroke and I found myself in an equivalent position. I simply have to start again my, I think three solicitors, that’s all stuck with me out of, before I had my stroke, 80. So, what did the Bar Council do as part of this agreement. Firstly, there is a good thing about it. The agreement didn’t contain a confidentiality clause. That’s why I’m here to speak to you about the agreement, because it didn’t contain a confidentiality clause, which in England, the majority of agreements to settle proceedings do.

But, it also didn’t, in any shape of form, contain an apology clause. The Bar Council have been discriminating against me for 18 months and they are not prepared to say sorry. It also contains a clause where, of the three barrister members of the panel, are not allowed to pursue them before the professional tribunal, before any tribunal at all. Now, why is that so important? Well, in England, I expect this is true for you in your countries, there is a code of practice and that code of practice, among other things, gives you training but another thing it gives you is a clear grievance procedure that the disabled person can use.

And another thing that it says is monitoring. You have to monitor your performance about equal opportunities and learn from them. Well, you may think that the code of practice is being flouted because the three individuals, I’m bound from doing anything else about it. So presumably they will continue to sit on the Bar Standards Board, and there is nothing I can do, there is no training I can recommend, there is no, no nothing!

Now, why is that important? I think two reasons. Firstly, a simple reason, it is very important that you look at your own country’s code of practice. You’d be surprised, I reckon 95% of employment discrimination cases wing their merry way, no one ever refers to the code of practice. As judges if no one else refers to the code of practice, you need to look at the code of practice, because what does it say about party to litigation if he flagrantly breaches the code of practice in terms of the credibility you give him in other aspects. And that leads me on to my second point, because litigation is hard and litigation is hard for disabled people. It was hard for me.

It’s a devil's cocktail. You have barristers, solicitors, lawyers on the other side who are sharp, sharp, sharp. They know the rules inside out, they will try every single path that the rules allow, and sometimes that what the rules don’t, to win their case. That’s acceptable. I’m sure you as lawyers and judges know that. What’s not acceptable is my first point. It’s really difficult, even for me to say, look I was biased against disabled people.

The Bar Council, I suspect that the Bar Council still don’t, still are aren’t prepared to own, excepting the compromise agreement, that they did anything wrong. And if you mix that with the litigator’s mind in litigation, you have a heady mixture of win at all costs. Now, why should this be of interest to you? You are the mind that they are trying to win over.

Unless you individually say: “I’m not going to look at what the respondent says and indeed what the claimant says, I’m going to concentrate on the trial and I’m going to ask my questions and look at the code of practice in your country, you’ll find did you train, did you, these people that are members of the staff, what training had they had; what did you do to monitor?” These very basic things, unless you judges concentrate a bit on that, you’re going to encounter certainly whenever anyone is saying: “This was disability discrimination and this is some version of the State that is responsible.”

You’re going to encounter the State’s arguments and that’s it. Now, the last thing chimes with a point that the previous speaker made. As a discrimination practitioner I’m very used to identify what questions need to be asked and one question I find again uniformly helpful is: You knew the DDA Act was coming into force; you knew it had reasonable adjustments and provisions; did you review your policies? Did you review your practices to assess whether a disabled person would have more difficulty and whether you needed to say in the case of disabled people different rules apply.

Ask yourself the question: “Do my country’s rules of procedure, has anyone looked at them and in the company of a disabled person worked out if the current rules are detrimental to disabled people”. In England, the rules of civil procedure are a two hardback volume set of rules relating to everything.

Except I did a word search, at no point is there a mention disability, at no point. You are bound by the same rules or procedures if you disabled as if you’re not. There is no guidance on what to do when you have a disabled client or a disabled barrister, or a disabled witness, or a disabled expert witness, or a disabled judge, or a disabled court clerk. No guidance at all, except, we now know that the judges owe a duty to disabled advocates, to reasonably accommodate them. And how do you know it? My case.

For 16 years, we’ve had in England a Disability Discrimination Act which says absolutely nothing about the role of a disabled advocate in court. I had to litigate and after, at the time 2.5 years, we got a judgment, a quasi-judge, he said of course, judges are under duty. Now, you may find that astonishing; you may not find that astonishing. The point is that I agree with a lot of the previous speakers ideas, or I agree with a lot of his areas of conflict, but, certainly in England, I don’t agree that it’s right that it should be dealt with on the hoof by a judge, who first realises that one of the parties is disabled, one of the witnesses is disabled, one of the court clerks is disabled, anyone in the process is disabled. I don’t agree with that at all.

What I think should happen in England and, by extension, the rest of Europe, is that we in England have a case management discussion, the discussion where by the length of the case of decided, the degree to which it’s witnesses, and how long each witness will take, the time for submissions, the admin point. Why can’t there be a discussion of whether the advocates, the parties, the witnesses are disabled. And if so, what those disabilities are, how the court can accommodate them?

If it involves moving courts so be it and if it involves sign language interpreters so be it , and if it involves not entering the witness box in order to give evidence because you are wheelchair bound, so be it. Why should those heroic final judges determinations, which can lead to an adjournment with the obvious cost applications, why does that need to happen at all, when disabled people can have their right to be treated the same way as everyone where else, and that right can be embodied in a pre-hearing review along with everything else.

I’ve yet to meet a lawyer who is opposed to that idea. It’s funny that it takes a disabled advocate to suggest it. I hope the English authors of the Civil Procedure Rules will take note. But with that I’m sure I’ve run over.
Thank you very much and you’ve been a pleasure.