In defence of healthy opposition

2 April 2022

9:00 AM

2 April 2022

9:00 AM

Glasses chinked. From massive chandeliers, lights glittered beneath the high vaulted ceiling; heroic statuary around the carved stone walls stared eyelessly down; heraldic flags draped from brass rods; and a sense of history and of – how shall I say? – consequence hung in the air. We were dining at the Guildhall in the City of London, and from my place at the top table, flanked by judges, eminent barristers, our host Lord Grabiner QC of One Essex Court chambers, and the justice minister Lord Wolfson of Tredegar, one could survey the whole hall: perhaps 400 of the brightest and best in the English legal world.

These were not, for the most part, old men. The occasion was the Times’s annual law awards: an essay competition for young lawyers. Young men and women of great promise mingled with men and women of great distinction. My own editor, John Witherow, speaking at these awards in a previous year, had observed that ‘there hasn’t been a greater collection of forthright opinions in one room since the last time Michael Gove dined alone’.

I was there in the editor’s place. In these violent times, as newspaper headlines change by the hour, Fleet Street editors must go light on the ceremonial, and our guests understood that. They were perhaps less sympathetic towards the absence of the Lord Chancellor and justice secretary, who has always attended. Dominic Raab had not bothered. I’ve hung around politics for long enough to remember a long line of lord chancellors, from Lord Hailsham in the 1980s to the errant Mr Raab, and so was able in my speech to compare the series with that famous cartoon called the Ascent of Man: a line starting with a chimpanzee and ending with a proud and upright human being, only (I suggested) in the case of lord chancellors it seems to be the other way round.

Others were more polite, but there was a palpable feeling of hurt at what seemed a snub. Tony Grabiner’s chambers had assembled in one place as impressive a reserve of intellect, aptitude and experience as you will find anywhere on our continent, and to that I would add ‘civic responsibility’: conversation was about the world, the future, the worries for our civilisation. The young women and men I met, and the six winning legal essays I read, combined ambition with idealism. A glittering evening, but far from self-satisfied. The real world was just outside, and everyone knew it.

And beneath the conviviality I sensed a certain unease. It was (as it happened) about unease that I wanted to talk in my short speech: about a feeling that if we want continuity, we must face up to a measure of adjustment. Times are changing, and the spirit of the times is changing.

In particular, I wanted to speak about what in the law and politics (and to some degree in comment journalism too) we call the adversarial system; and what in commerce and economics we call the theory of competition. I love it and rate it highly. I think it often leads to the best outcomes. But the public don’t.

If you want an easy cheer in any town hall or any pub in England, try this: ‘If only our politicians and political parties would stop attacking each other, and instead get sensible men and women together around the table to agree what’s best for the country!’ Any Commons Speaker, indeed any MP, knows the public hate quarrelling and name-calling at Westminster. And, as I reminded my audience, MPs with their ear to the ground also know that dislike of argy-bargy as a method for pursuing justice is very widespread.

My constituents could never understand how barristers can defend alleged murderers and child molesters unless they were pretty sure of their client’s innocence. And I’m afraid the same goes for economics. I cannot tell you how many times I’ve heard perfectly intelligent fellow citizens say things like ‘we don’t need two supermarkets clogging up the town: we just need one good supermarket’; ‘we don’t need two hospitals competing for business: we just need one good hospital’; ‘we don’t need two schools in our catchment area: we just need one good school, big enough for all the children’.

The logical conclusion of this line of argument is, of course, ‘we don’t need two political parties knocking seven bells out of each other: we just need one good party, governing the whole country in everybody’s interests’.

Spectator readers are clever enough to need no reminding why this argument, attractive as it sounds, is wrong. And I knew my Guildhall audience would be thoroughly familiar with the argument for legal representation as a sort of public-spirited version of competitive sport. So I won’t repeat the case for seeking truth via thesis and antithesis. I only remark that this doctrine’s ideological roots do not go very deep with the masses. Perhaps they never did, but the populace are now at the gates. In a social media world where everyone feels entitled to an equal respect for their opinion on everything from neuroscience to rocket science, politicians, lawyers and no doubt columnists will have to wake up to a world less patient with our gamesmanship. I cannot disagree that even a Russian oligarch with deep pockets seeking to use our courts to outgun those with pockets less deep is entitled to representation. But the adversarial system often appears to lend itself to litigation calculated to keep counsel on their feet and in business for far too long. It doesn’t smell good, not to the wider public.

I was speaking at the Guildhall as a conservative who fears great change, but senses that gentle change may head it off. I do not know enough about legal procedure to be more specific, so I limited myself there – and limit myself here – to observing simply that something may be going a bit wrong. Amid the cut glass and pleasant hospitality, there lay neither rage, rebellion nor despair, but perhaps a very slight disquiet. That’s all.

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