The essence of advocacy: Lord Pannick QC

‘Advocacy depends as much on listening as on speaking. Listen to what the other side is saying, to what the judge is saying. Watch the body language. There’s no point in ignoring the concerns of the court. There has to be a conversation with the judge. Judges don’t want to be lectured to. They are concerned to get to the right answer, and they want the advocate to help them. Contrast this with advocates who target their clients as the audience (“Fantastic – you really told the judge!”). But the purpose is to persuade, so identify what is causing the judge concern.’

In November David Pannick QC, Lord Pannick of Radlett will be delivering the Hamlyn Lectures, his chosen subject Advocacy; and I am getting a taster. ‘It’s an honour to be lecturing in this distinguished series. Advocacy is an important topic. Our system is wonderful in that independent judges make determinations after hearing arguments on both sides. It’s sad that in politics advocacy has often degenerated into shouting matches.’

Pannick is arguably the star of the public law/human rights Bar. Even if modesty prevents him from claiming that accolade, when his membership of the House of Lords is added to the mix it is clear that he is the most influential. He has appeared in well over a hundred cases at top level before the Supreme Court and its predecessor, the Appellate Committee of the House of Lords, plus the European Court of Human Rights, the European Court of Justice and many common law courts around the world. We talk about Miller 2, where he successfully argued that the government’s prorogation of Parliament in September 2019 was unlawful. ‘I went straight from a family holiday on safari in Botswana, observing natural justice in the jungle, to arguing before the Divisional Court. I was laughed out of court. Two weeks later I was in the Supreme Court. The issue: is it politics or law?’

He smiles when I say ‘politics’. ‘We said law. Aidan O’Neill QC, representing Joanna Cherry MP, mentioned Bannockburn, Nelson Mandela and Abe Lincoln. But the court wisely preferred not to include such material in its judgment. Part of the government’s problem was that it had no evidence as to why a five week prorogation was thought necessary.’ He denies being a media celebrity but ‘it was the only time I have ever been asked for a selfie – in Pret a Manger of all places.’

How did he feel? ‘Elated. I like to win. I hate to lose. I don’t subscribe to Kipling on treating triumph and disaster just the same. Because I lose so many cases I can’t let particular defeats rankle, even a 17-nil defeat when representing the government in Strasbourg on a point in Thompson and Venables! I just accept and move on. Or perhaps some are too painful to remember.

‘People think maybe I can sprinkle some magic dust on their cases – but some cases aren’t winnable. I spend much of my time saying, “Stop, you’ll lose.” Then I hear the words, “This is a matter of principle.” It’s the client’s prerogative. My role is to contribute to justice by making sure that the client’s side is fully argued.’

His most doughty opponents are his own children. ‘When I argue with them, I don’t win many cases.’

Online advocacy? ‘The courts have performed heroically – judges, staff and advocates. Like most counsel I’ve come to terms with it. But it’s a far less effective means of arguing cases. From March ’20 until July ‘21 I had dozens of hearings online. I only went to a courtroom once, in July in the Court of Appeal. It was enormously refreshing to interact with the judges. Contrast a Teams hearing in the Hong Kong court of final appeal. The court insisted we kept normal HK hours and wore court dress, so I found myself starting at 2am UK time, sitting in chambers in my wig and gown!

‘The future lies in more online work, for example directions hearings, but for witnesses and legal arguments we should be in person.’

Pannick’s parents, now deceased, were second generation immigrants. ‘They aimed to ensure we had a good education. They sacrificed and my sister and I benefited. We had a happy upbringing, indulged, pampered and encouraged. Mum was a school secretary. My dad owned a shoe shop in Romford Market; not known for patience with customers. To a customer hesitating over a pair of slippers, he would say, “If you don’t like them, don’t have them.” I’ve always tried to be more user friendly.

‘At age 11 I won a local authority scholarship under the direct grant system to a public school. Bancroft’s. We did debating and public speaking. I gained confidence when my team won a debating competition, the Rotary Club Youth Speaks. An interest in law emerged from all this activity. I would go to watch cases at the Old Bailey. One was the unusual case where Peter [now Lord] Hain was charged with bank robbery. And acquitted. I loved the theatre of the law and its importance. With the school’s encouragement I worked for the Liberal Party during a General Election in 1974. But I did “normal things” too, such as football [playing and supporting Arsenal] and cricket, stamp collecting and going to the cinema.’

He studied jurisprudence at Hertford College, Oxford under Roy Stuart, ‘an inspirational teacher, devoted to his students. It was case law that I found most interesting. It covered a whole range of human behaviour – tragedy, comedy, farce – and it was fascinating how the law addressed them.’ He debated at the Oxford Union, served on its ‘lower committees, with one Theresa May’, and ended with the top First of his year, doing a postgraduate year and becoming a fellow of All Souls by examination.

Ever thought of an academic career? ‘I was tempted but in the words of the song in Hamilton I concluded, “I wanna be in the room where it happens.” He joined Gray’s Inn while at Oxford and ate his dinners – ‘a completely pointless activity, but I complied’. He is now a Bencher.

‘In those days you got pupillage through your contacts. One of mine at All Souls, Michael Hart (later QC and later still a High Court judge), gave me pupillage in his Chancery Chambers. I found the work – mainly drafting variations of trusts – terribly tedious. I moaned about this to Professor Max Beloff. He said, “Contact my son, Michael.” I did, and so became a pupil and then a tenant at 2 Hare Court, later Blackstone Chambers. Michael Beloff was the go-to junior in the developing world of judicial review, discrimination and sports law and fun to work with. Anthony (later Lord) Lester QC, also of Chambers, brought me into a Singapore appeal before the Privy Council as second junior, our client being under a mandatory death sentence for drug trafficking. We lost. My first ever client was hanged.

‘Anthony would argue his cases by reference to human rights principles, drawing attention to case law from abroad. It didn’t always go down well. I admired his obstinacy, although I sometimes found it good to sit right behind him, hunch down and let him take the flak. What was then esoteric is now standard. He generously brought me into his practice, and I did lots of cases for the then Equal Opportunities Commission, the existence of which he had inspired in 1975. I was by accident in the right place at the right time. Public law was rapidly developing and Michael and Anthony had the cases. I did cases, they were reported, solicitors would see my name and I’d get more. Ultimately the Treasury Solicitor spotted me. By 1986 as a 30-year-old I was getting really interesting cases for the government. Many of these cases would come to me late afternoon for a hearing next day. “You are instructed in the High Court tomorrow, resisting an immigration JR.” “You are appealing on a VAT point – please do your best.” Or similar. It was enormously valuable experience: difficult points of law, high pressure and a wide range of government clients, as well as private clients.’ He took silk in 1992, aged 36.

The judicial life didn’t attract. ‘I was a Recorder at one point. It was difficult, as I had no experience of crime. I was a Deputy High Court judge in the 90s. It was enormously hard work, concentrating hour after hour. Not a career path I wanted. I loved the advocacy, exercising my voice on behalf of someone else. And it was nice for me also to be able to speak on my own behalf, including through my regular Times column.’

It is also in the House of Lords where Pannick exercises his voice and influence from the cross benches. ‘It’s the only place where I am still known as Young Pannick! In 2008 they were looking for someone with practical knowledge of the law and who would turn up. I applied under the open competition system. When I heard I had succeeded I felt humbled by the thought that my grandparents who left Poland and Russia would be astonished that their grandson would be honoured in this way.’

He regularly turns up. ‘I participate in things I know about and am interested in.’ He has served on the constitution committee and successfully opposed government proposals in 2014 to reduce the role of judicial review. ‘I was proud to play a part in that. Yes, that topic never goes away.’ An effective performer, he asks brief and pointed questions of ministers and regularly moves amendments to legislation. One successful amendment abolished the offence of scandalising the judiciary. His participation in the Brexit debates revealed a shrewd mastery of parliamentary procedure.

‘The House of Lords is an effective way of getting the government to think again. Its members are extremely knowledgeable. If it were to become an elected chamber, you wouldn’t get those people, and it would be much more assertive. It’s a constitutional anomaly that happens, in my view, to work. There was a time when I favoured a written constitution. I’m far more dubious now. After Brexit, the constitution deserves a break!’

Advice to those starting out? ‘I recommend the Bar as a career. If you possess the personality for it, you will need the support of your families and partners, an appetite for hard work, a thick skin, and luck. But with all its pressures and challenges it will be fun – an enormously enjoyable career. As Lord Bingham once said: “Go to the Bar, that’s where the magic is.” Looking to the future I believe the Bar will survive even if it may diminish in size as a result of technological developments and the reductions in legal aid. But the fact remains that it meets an important need for specialist advocates.’