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‘I had decided to retire,’ Sir Stephen Irwin tells me of his decision to step down from the Court of Appeal, but ‘I knew I didn’t want to jump off a cliff.’ It was 2020. He was Treasurer of Gray’s Inn (‘I was the plague Treasurer’, referring the COVID pandemic). In due course he would take over as Chairman of the Slynn Foundation, which began after the Cold War to work with judges who had only operated under regimes which had not allowed them to be free or independent.
However, the purpose of our meeting was to discuss his more momentous post-retirement task as Chair of the Independent Expert Panel (IEP) which hears both appeals from the Parliamentary Commissioner of Standards (PCS) and referrals about sanctions to be imposed on Members.
The Panel was established following the recommendations of the report of Dame Laura Cox. At that stage there was no independent mechanism to deal with allegations of bullying, harassment or sexual misconduct in respect of those who worked in the parliamentary community. The PCS was already a well-established role in investigating allegations that Members had breached the Rules of Conduct established by the House itself. More recently it has had its remit expanded to include these other allegations. The IEP is thus able to deal with appeals across the whole range of alleged misbehaviour.
Sir Stephen describes to me the process. The IEP consists of eight people who sit in panels of three. They do not re-investigate or hear fresh evidence. A complaint is first dealt with under the Independent Complaints and Grievance Scheme. The person who investigates presents their results with a recommendation to the PCS who makes the decision. She may refer sanction to the IEP if she feels her powers are insufficient. In any event the Member may themselves appeal to the IEP. ‘We take appeals and referrals which can be in the same case.’ The panel of three deal with the appeal and may impose a sanction. Since the sanction in a referral is a ‘first instance’ judgment, the Member can appeal that to a different IEP panel. That is the end of the appeal procedure. However, the more serious sanctions, such as suspension of more than 10 days (which triggers a recall petition, which is formally decided by the Standards Committee) or indeed expulsion go to the House of Commons who vote upon it. Since Parliament is sovereign they cannot be forced to follow the IEP’s decisions, but the Commons has resolved to do so and without a debate.
The IEP was set up at the end of November 2020 and immediately went to work, to create its own practice and procedure. Because of the continuing pandemic, all this was done remotely. Sir Stephen was used to this by then. Nine months of his term as Treasurer of Gray’s Inn had been conducted remotely, much of it dealing with other Treasurers in furthering ways to help the Bar through the crisis. The Panel worked quickly and by February 2021 they were hearing appeals, a number of which had been pending. A list of 10 of these on the website demonstrate the way in which each has been dealt with individually. Some, such as the former Speaker John Bercow and Keith Vaz, had already ceased being MPs, but the Panel recommended what would have happened if they still were Members: in the Bercow case that would have been expulsion from the House. Two Members were ordered to apologise on the floor of the House. One had her appeal allowed on the basis that the investigation had been materially flawed.
Although discussing the IEP is the initial purpose of our meeting, it is too good an opportunity not to ask Sir Stephen about his career as it says a good deal about the Bar and how the various parts of the legal system work.
Sir Stephen was born in Belfast where he attended state schools and went on to Cambridge University where he met his wife. ‘When we married, the 1970s were not a great time to go back to Northern Ireland.’ They stayed in England and in 1976 he was called to the Bar by Gray’s Inn. He found a tenancy in 1 Dr Johnson’s Buildings, headed by Emlyn Hooson QC MP, and where his co-tenants included John Mortimer, Helena Kennedy, Geoffrey Robertson and Edward Fitzgerald.
‘I did everything at first,’ crime, family and civil. And then, ‘I did a medical negligence case. I loved it and they came back; a classic Bar story.’ He confessed that he had hated science at school and gave it up as soon as he could. He recalled the advice of his mother-in-law, who found herself teaching maths: she said, ‘In order to teach it, I have to understand it.’ And so, ‘I had to learn it and then I could convey it to a judge who may not know it.’
By 1990 he and others were dissatisfied with the clerking and administration in chambers and decided to take the risk of founding their own set, in a house in Doughty Street. It was then ‘revolutionary to go north of Gray’s Inn’. There were 24 of them then. Members now number around 150 and chambers is spread over five houses in the street. They brought in a practice manager ‘which almost no one had’. In due course they created a formal structure with teams.
Although now a medical negligence specialist and in silk, Sir Stephen found himself being brought into a number of homicide cases where causation was in issue. ‘I would cross-examine the experts as I was doing that all the time anyway.’ In addition, ‘I have always loved juries. I have always been interested in ordinary people understanding what we are doing.’ In the way that he had to make the client understand the medical facts and law, now he found himself ‘bringing it alive to a jury’.
This led to his views on advocacy, from the point of view of someone who was on the Bench while still remembering what it was like to be a practitioner. ‘You need to manage their expectations. People need you to express their position but you need to filter for them what their expectations are, what can be achieved. If you ignore the client and don’t convey the human story, then you fail. If you wave a stick at the Bench and become over-enthusiastic, you won’t get there.
‘You need to remember all the time that you are there to persuade the Bench and not to impress the people behind you. There can be a distinction there. Feisty individualism and emotionally laden arguments can impress solicitors and clients but you’re there to persuade the Bench.’
In his own practice, Sir Stephen ‘got used to doing multiples’. There were all the BSE cases in the Inquiry. Later, lead counsel for around 4,500 soldiers and sailors who sued the government for not looking after their mental welfare as a result of the impact of war, the ‘war’ ranging from the Army’s presence in Northern Ireland to the Gulf War. The case lasted five and a half months. In Belfast, he represented more than 500 police officers in Northern Ireland in a similar claim, many of whom had had to cope with the loss of many colleagues.
Despite the demands of his practice, he was asked to make time to help on fees in Bar Council. He wound up as Chair of the Fees and Legal Aid Committee. As more and more was asked of him, he jokes, ‘the only way out’ was to become Chair of the Bar, ‘and then they leave you alone’. He looks back on his year [2004] as one of those jobs where ‘90 per cent of what you do is to stop things getting worse’. The most urgent issue was the Clementi investigation. Although he regrets still the failure to stop non-lawyers owning law firms, which he blames in part for what is now known as the compensation culture, ‘we did prevent damage to advocacy and we kept the mark of silk’ even though its abolition was being strongly proposed by some.
He did escape from Bar Council demands by being made a High Court Judge in 2006, but soon had to deal with issues regarding the Judiciary. As Presiding Judge of the Northern Circuit, which included 110 Circuit Judges, he found himself in a ‘management and planning job, thinking administratively, buildings, personnel, promotions, who should do more senior kinds of cases, how to deploy the judges, how to interest someone who is bored with what he is doing, who to recommend for leadership positions’. As Chair of the Judicial Security Committee, he had to deal with the risk to judges in security as a national issue. Family judges, who were dealing with cases in an informal way, were the most exposed.
After the Northern Circuit came three years as Chair of the Special Immigration Appeal Commission (SIAC). It had the advantages that it ‘promised me a degree of autonomy’ and it meant less time away from home. He describes for me the procedure of Open and Closed sessions in a case. The appellant is represented by vetted special advocates. Once the special advocate is shown the secret material which explains why the Home Secretary feels that it is not in the public interest for this person, say, to remain in the UK or to be naturalised, then he or she cannot talk to the client directly.
‘But they can still be effective advocates because once in Closed, there will be a witness from the intelligence services and you will have all the disclosed material.’ The witness is there in Open too but in Closed the special advocate knows their name, can see them and, again, has access to all the Closed material.
SIAC has to be clear on what inferences to draw, that is, if the appellant had been able to see a particular piece of evidence, what would they have said about it? ‘Before you draw the adverse inference, what answer might they have given? That’s how I approached it. The government might say, “There’s an obvious answer, X,” but if you think there is a reasonable argument that it could be Y, then you don’t draw an adverse inference because the appellant does not have the opportunity to meet the point.’ Unsurprisingly, ‘I found it fascinating.’ Sir Stephen is also clear that a hearing must have all the relevant material. He resists any attempts to prune that down.
Finally, I ask if there were any of the Court of Appeal cases in which he took part which he could look back upon as being particularly important. He cited three. One concerned Rwanda, ‘when we decided not to send people back where they would not be safe,’ being accused of genocide. The second was whether international humanitarian law was complied with by the British government before exporting arms to Saudi Arabia, the civil war in Yemen being the factual focus. The court decided that the existing processes were unlawful and indeed they were changed.
Perhaps the most significant one, though, was his last, Swift v Carpenter which changed the guidance as to the method to be used to calculate a claimant’s entitlement to the additional capital cost of special accommodation which he might need to purchase in the future. The very full judgment was handed down in October 2020. It gave Sir Stephen particular satisfaction ‘because it changed the law and the practice; a major case which was in your own specialism at the Bar.’
And it was not appealed.
David practised at the criminal Bar for 27 years and is a door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.
‘I had decided to retire,’ Sir Stephen Irwin tells me of his decision to step down from the Court of Appeal, but ‘I knew I didn’t want to jump off a cliff.’ It was 2020. He was Treasurer of Gray’s Inn (‘I was the plague Treasurer’, referring the COVID pandemic). In due course he would take over as Chairman of the Slynn Foundation, which began after the Cold War to work with judges who had only operated under regimes which had not allowed them to be free or independent.
However, the purpose of our meeting was to discuss his more momentous post-retirement task as Chair of the Independent Expert Panel (IEP) which hears both appeals from the Parliamentary Commissioner of Standards (PCS) and referrals about sanctions to be imposed on Members.
The Panel was established following the recommendations of the report of Dame Laura Cox. At that stage there was no independent mechanism to deal with allegations of bullying, harassment or sexual misconduct in respect of those who worked in the parliamentary community. The PCS was already a well-established role in investigating allegations that Members had breached the Rules of Conduct established by the House itself. More recently it has had its remit expanded to include these other allegations. The IEP is thus able to deal with appeals across the whole range of alleged misbehaviour.
Sir Stephen describes to me the process. The IEP consists of eight people who sit in panels of three. They do not re-investigate or hear fresh evidence. A complaint is first dealt with under the Independent Complaints and Grievance Scheme. The person who investigates presents their results with a recommendation to the PCS who makes the decision. She may refer sanction to the IEP if she feels her powers are insufficient. In any event the Member may themselves appeal to the IEP. ‘We take appeals and referrals which can be in the same case.’ The panel of three deal with the appeal and may impose a sanction. Since the sanction in a referral is a ‘first instance’ judgment, the Member can appeal that to a different IEP panel. That is the end of the appeal procedure. However, the more serious sanctions, such as suspension of more than 10 days (which triggers a recall petition, which is formally decided by the Standards Committee) or indeed expulsion go to the House of Commons who vote upon it. Since Parliament is sovereign they cannot be forced to follow the IEP’s decisions, but the Commons has resolved to do so and without a debate.
The IEP was set up at the end of November 2020 and immediately went to work, to create its own practice and procedure. Because of the continuing pandemic, all this was done remotely. Sir Stephen was used to this by then. Nine months of his term as Treasurer of Gray’s Inn had been conducted remotely, much of it dealing with other Treasurers in furthering ways to help the Bar through the crisis. The Panel worked quickly and by February 2021 they were hearing appeals, a number of which had been pending. A list of 10 of these on the website demonstrate the way in which each has been dealt with individually. Some, such as the former Speaker John Bercow and Keith Vaz, had already ceased being MPs, but the Panel recommended what would have happened if they still were Members: in the Bercow case that would have been expulsion from the House. Two Members were ordered to apologise on the floor of the House. One had her appeal allowed on the basis that the investigation had been materially flawed.
Although discussing the IEP is the initial purpose of our meeting, it is too good an opportunity not to ask Sir Stephen about his career as it says a good deal about the Bar and how the various parts of the legal system work.
Sir Stephen was born in Belfast where he attended state schools and went on to Cambridge University where he met his wife. ‘When we married, the 1970s were not a great time to go back to Northern Ireland.’ They stayed in England and in 1976 he was called to the Bar by Gray’s Inn. He found a tenancy in 1 Dr Johnson’s Buildings, headed by Emlyn Hooson QC MP, and where his co-tenants included John Mortimer, Helena Kennedy, Geoffrey Robertson and Edward Fitzgerald.
‘I did everything at first,’ crime, family and civil. And then, ‘I did a medical negligence case. I loved it and they came back; a classic Bar story.’ He confessed that he had hated science at school and gave it up as soon as he could. He recalled the advice of his mother-in-law, who found herself teaching maths: she said, ‘In order to teach it, I have to understand it.’ And so, ‘I had to learn it and then I could convey it to a judge who may not know it.’
By 1990 he and others were dissatisfied with the clerking and administration in chambers and decided to take the risk of founding their own set, in a house in Doughty Street. It was then ‘revolutionary to go north of Gray’s Inn’. There were 24 of them then. Members now number around 150 and chambers is spread over five houses in the street. They brought in a practice manager ‘which almost no one had’. In due course they created a formal structure with teams.
Although now a medical negligence specialist and in silk, Sir Stephen found himself being brought into a number of homicide cases where causation was in issue. ‘I would cross-examine the experts as I was doing that all the time anyway.’ In addition, ‘I have always loved juries. I have always been interested in ordinary people understanding what we are doing.’ In the way that he had to make the client understand the medical facts and law, now he found himself ‘bringing it alive to a jury’.
This led to his views on advocacy, from the point of view of someone who was on the Bench while still remembering what it was like to be a practitioner. ‘You need to manage their expectations. People need you to express their position but you need to filter for them what their expectations are, what can be achieved. If you ignore the client and don’t convey the human story, then you fail. If you wave a stick at the Bench and become over-enthusiastic, you won’t get there.
‘You need to remember all the time that you are there to persuade the Bench and not to impress the people behind you. There can be a distinction there. Feisty individualism and emotionally laden arguments can impress solicitors and clients but you’re there to persuade the Bench.’
In his own practice, Sir Stephen ‘got used to doing multiples’. There were all the BSE cases in the Inquiry. Later, lead counsel for around 4,500 soldiers and sailors who sued the government for not looking after their mental welfare as a result of the impact of war, the ‘war’ ranging from the Army’s presence in Northern Ireland to the Gulf War. The case lasted five and a half months. In Belfast, he represented more than 500 police officers in Northern Ireland in a similar claim, many of whom had had to cope with the loss of many colleagues.
Despite the demands of his practice, he was asked to make time to help on fees in Bar Council. He wound up as Chair of the Fees and Legal Aid Committee. As more and more was asked of him, he jokes, ‘the only way out’ was to become Chair of the Bar, ‘and then they leave you alone’. He looks back on his year [2004] as one of those jobs where ‘90 per cent of what you do is to stop things getting worse’. The most urgent issue was the Clementi investigation. Although he regrets still the failure to stop non-lawyers owning law firms, which he blames in part for what is now known as the compensation culture, ‘we did prevent damage to advocacy and we kept the mark of silk’ even though its abolition was being strongly proposed by some.
He did escape from Bar Council demands by being made a High Court Judge in 2006, but soon had to deal with issues regarding the Judiciary. As Presiding Judge of the Northern Circuit, which included 110 Circuit Judges, he found himself in a ‘management and planning job, thinking administratively, buildings, personnel, promotions, who should do more senior kinds of cases, how to deploy the judges, how to interest someone who is bored with what he is doing, who to recommend for leadership positions’. As Chair of the Judicial Security Committee, he had to deal with the risk to judges in security as a national issue. Family judges, who were dealing with cases in an informal way, were the most exposed.
After the Northern Circuit came three years as Chair of the Special Immigration Appeal Commission (SIAC). It had the advantages that it ‘promised me a degree of autonomy’ and it meant less time away from home. He describes for me the procedure of Open and Closed sessions in a case. The appellant is represented by vetted special advocates. Once the special advocate is shown the secret material which explains why the Home Secretary feels that it is not in the public interest for this person, say, to remain in the UK or to be naturalised, then he or she cannot talk to the client directly.
‘But they can still be effective advocates because once in Closed, there will be a witness from the intelligence services and you will have all the disclosed material.’ The witness is there in Open too but in Closed the special advocate knows their name, can see them and, again, has access to all the Closed material.
SIAC has to be clear on what inferences to draw, that is, if the appellant had been able to see a particular piece of evidence, what would they have said about it? ‘Before you draw the adverse inference, what answer might they have given? That’s how I approached it. The government might say, “There’s an obvious answer, X,” but if you think there is a reasonable argument that it could be Y, then you don’t draw an adverse inference because the appellant does not have the opportunity to meet the point.’ Unsurprisingly, ‘I found it fascinating.’ Sir Stephen is also clear that a hearing must have all the relevant material. He resists any attempts to prune that down.
Finally, I ask if there were any of the Court of Appeal cases in which he took part which he could look back upon as being particularly important. He cited three. One concerned Rwanda, ‘when we decided not to send people back where they would not be safe,’ being accused of genocide. The second was whether international humanitarian law was complied with by the British government before exporting arms to Saudi Arabia, the civil war in Yemen being the factual focus. The court decided that the existing processes were unlawful and indeed they were changed.
Perhaps the most significant one, though, was his last, Swift v Carpenter which changed the guidance as to the method to be used to calculate a claimant’s entitlement to the additional capital cost of special accommodation which he might need to purchase in the future. The very full judgment was handed down in October 2020. It gave Sir Stephen particular satisfaction ‘because it changed the law and the practice; a major case which was in your own specialism at the Bar.’
And it was not appealed.
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