‘People underestimate the influence of the Lords’: Lord Marks KC

‘What do I enjoy about my political role? I can influence legislation, I have a platform, I contribute to public debate and, sometimes, I can persuade ministers to change their minds.’

I am speaking with Lord Marks of Henley-on Thames, Liberal Democrat spokesperson in the Lords on Justice for the last 11 years and a busy KC, with an international commercial practice at 4 Pump Court. He has ‘a cocktail’ of reasons for being in politics: ‘I never wanted to be a judge. I like being partial. Then I have a passion for social fairness and justice. I’m a passionate European, adamant against Brexit, a committed internationalist and a determined advocate of human rights. My most important task is to oppose weakening the Human Rights Act. It’s a fantastic piece of legislation that enables rights to be enforced by our citizens in our courts. The Tories don’t like it and Labour can’t be trusted to defend it. You can’t rely on governments to respect human rights. Restricting government’s freedom to legislate is resented by a lot of politicians. Governments don’t like being proved wrong by judges.’

Jonathan Marks’s family background was ‘pretty conventional’. His father was a dental surgeon with a large practice in London. ‘At one stage it was in Mayfair and we were living above the shop. My sister and I had to be quiet during “office hours”. We hated it. Then we moved to Henley-on-Thames.’ His mother was a barrister. ‘She was called in 1947, when there were only about 80 women at the Bar. Second in her Bar exams, she wore her cleverness lightly. She had been evacuated to Cambridge in the War and studied law there. I was lucky enough to know from age 13 that I wanted to be a barrister. It was a natural decision. I saw my mother in court and really liked what she did; I had a love of debating fostered at Harrow School, a conventional school which I enjoyed very much; I admired the principles that before the law everyone is equal and everyone is entitled to a hearing. Legal aid was then a given.’

Politics came at about the same time. ‘I ran the school debating society and was able to choose the debates. I chose many political motions. I was already quite radical. Strangely, I was influenced by my relatively old-fashioned headmaster. He used to teach the Classical Sixth by the Socratic method. One day, in the middle of the 1969 miners’ strike, he asked us, “Doesn’t every person have the right to withdraw their labour?” I instinctively replied “Yes”. The others probably thought “No”.’ Home was also a good place for political arguments, with a Conservative father, but a persuadable mother.’

University College, Oxford followed. ‘It was a straight-down-the-line college, good at law, with a strong history of legal academics, including Professor Goodhart – President of the Oxford Inner Temple Society when I was chair – Herbert Hart and my tutors Lennie [later Lord] Hoffmann and John Finnis, later Professor of Jurisprudence. I particularly enjoyed jurisprudence, criminology and administrative and comparative law. After so many years as a lawyer, I am not sure I would now advise would-be lawyers to read law at university – studying something else first gives you a wider perspective.

‘I didn’t take to the cut-throat contests of Oxford Union politics but I was selected as one of a pair for a debating tour of Australia and New Zealand in celebration of the 150th anniversary of the Union. We returned for more the following year.’

Called to the Bar in 1975, his pupillage included a mixture of crime and civil. ‘Over time I did more and more crime and I was prosecuting a lot. I got on the Met Police list – this was pre-CPS – but I felt I was becoming typecast as “Marks of the Yard”. I loved aspects of crime, especially addressing juries, but not that it was fact heavy and involved relatively little legal argument. Then I did a really interesting case on sex discrimination and unfair dismissal against Stephen [later Lord Justice] Sedley. This went to the Court of Appeal. Shortly after the hearing I got a phone call from the then head of 4 Pump Court, a largely civil chambers: “Come for a chat”.’ The young Marks discovered that he was being headhunted following a recommendation from one of the appeal judges. ‘In those days people just didn’t just move chambers. But for me it was a welcome change. I was able to concentrate on civil and commercial work, although for some years I still kept up some of crime.’

There was also time for politics. He joined the Social Democratic Party when it was founded in 1981 and stood, unsuccessfully, in two parliamentary elections and a Euro election. After the merger with the Liberals in 1988 he served the Liberal Democrats in several roles, as a local party chair, on the Party’s Policy Committee and latterly as Chair of the Lib Dem Lawyers Association.

It was ‘quite a long time’ before the shape of his current practice developed, largely by serendipity. He took silk in 1995. ‘I have been involved in a wide range of commercial disputes, many of them international; construction; professional negligence; industrial accidents; professional regulation; also arbitration and mediation. For years I did family law as well. Many of my cases now involve complicated engineering issues – with highly qualified experts producing reports reaching dramatically different conclusions. Good experts help me get to grips with the material and show where the opposing experts are wrong or, if they’re not wrong, where we need to make concessions. I also try to encourage experts to give their evidence clearly and – with hearings now time-limited – succinctly. It’s one of the most exciting things we do. The big lesson on working with experts is: if you don’t understand something, say so. Don’t be embarrassed. Then work to understand it. Trials are never quite what you think they are going to be. There are up days and down days. One bad day is not the end of your case. It can be followed by a bad day for the other side. That’s quite a tough lesson.’

These days he is often leading a team of counsel and solicitors. ‘Putting teams together is important. Chambers and solicitors now work on encouraging better teamwork. It’s more expensive for the client but the outcome is better. Compare the days when counsel sat behind a desk and solicitors and clients all sat around on uncomfortable chairs balancing their papers on their knees, while counsel pronounced from on high on the law and the clients’ prospects in court. I prefer a personal approach and try to be relaxed and friendly; people didn’t used to expect that style from a silk, but now most do.’

How does he balance his practice with his Parliamentary duties? ‘I work extremely odd hours – very late or very early, here in Chambers or at home. I’ve gone back to coming into Chambers a lot more post-COVID. Everyone working constantly from home is damaging for Chambers’ cohesion, particularly for younger members.’

What for him are the differences between courtroom advocacy and parliamentary debating? ‘The similarities are stronger than the differences. In court you deploy a view of the facts and the law honestly and with integrity but so as to achieve a result for your client. In Parliament you put an argument in which you believe, in order to persuade a political and public audience most of whom aren’t lawyers. It needs a lighter touch. Getting people’s attention, often with humour, is important. When I joined the Lords in 2011, I felt like the new boy all over again – at the age of 58! The Lib Dem constitutional team wanted me to be involved quickly so I made my maiden speech in a debate on tourism – not my métier. It was terrifying. I also served on the Delegated Powers and Regulatory Reform Committee. It sounds dry as a biscuit, but it gave me a fascinating insight into what governments do to bypass Parliament and how to challenge ministers trying to grab excessive powers to make regulations.’

He recently led on the justice aspects of the National Security Bill, persuading the government to modify some of its proposals for ‘powers that went too wide’. Compared with ministers who have the Civil Service behind them, where does he get his briefing? ‘I usually have to brief myself. The role is to challenge government. Sometimes the government only wakes up to how its Bill will work in practice when it faces challenges from around the House. It’s one of the joys of the Lords that governments do make concessions during a Bill’s passage. The Lords has several roles: it’s a revising chamber; it’s a guardian of the constitution and it’s a protector of parliamentary democracy (this may seem odd in view of the unelected membership of the Lords, but, with no government majority, it’s true!). There is constant tension between the Executive and Parliament. We call out government for abusing its power. People underestimate the influence of the Lords.’

Advice to those starting out? ‘A career at the Bar is very hard, so be convinced that this is what you want to do. You need to do extremely well in your law exams. It’s important to go to court before you commit and experience what goes on. Once in practice, get as much advocacy as you can. Learn the skills of the trade. That was one of the benefits for me of having an all-round practice in my early years.’ One son is thinking of the Bar. ‘I haven’t tried to put him off.’ Represented among his other children – he has seven – are the medical and solicitors’ professions and ‘a lot of thespians.’ His wife, Medina, is Greek, but practised at the Bar of England and Wales for some years. The family decamps every year to Spetses in Greece for much of the summer vacation.

He adds: ‘There is a massive difference between young people today and my generation about where the world is heading – on the environment, on community relationships, and on social and sexual mores. Young people have driven the move towards greater understanding and a feeling of live and let live. The older generation is resisting this and so being left behind. The lack of commitment to our children’s world is disgraceful. It’s felt to be easy to abandon environmental targets in the face of economic hardship, but we are running the risk and our children will pay for it.’