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14 July 14

Interview with Mark Stephens, one of the UK's most colourful litigators and President of the Commonwealth Lawyers Association, the body behind Glasgow CLC2015

by Peter Nicholson

Julian Assange’s extradition case. The “McLibel two”. Litigation over the miners’ strike, Tasmanian aboriginal remains, and cricket ball tampering allegations. The Commonwealth Law Conference. Spot the connection? All have involved, or will involve, Mark Stephens playing a key role.

If any lawyer is wondering what the value may be in next year’s multinational legal gathering in Glasgow, a few minutes spent in Stephens’ company would probably persuade them to drop everything and go. The man who has been hitting the headlines since the 1980s for his creative approach to the law happens also to be President of the Commonwealth Lawyers Association (CLA), a body which has been close to his heart for about as long.

What makes Stephens tick? “I would describe myself as an intellectually curious litigator”, he replies when asked to provide his own label. “A lot of people try to pigeonhole you by area of work. That doesn’t really work for me.” Pointedly dating himself in the pre-specialisation era, he has claimed: “Over-specialisation runs counter to an enquiring mind. Only enquiring minds change the law.”

As someone whose curiosity about interesting and developing areas of the law has taken him to diverse foreign courts, Stephens sees many Commonwealth countries as having the law “kind of pickled in aspic as at the date of independence”. Very often that is an issue when he is asked to go and work on briefs to bring the law up to date – anything from pensions law to constitutional law: “I’m just interested in how the law evolves and develops to reflect the needs of our contemporary society.”

The justice imperative

Having studied at the University of East London in an era when most of his lecturers were Marxists, Stephens has not adopted their politics but maintains that he owes them “an enormous debt of gratitude” all the same: “Their sort of naïve political idealism did rub off in that they inculcated me with a sense of corporate social responsibility before that was really understood, a sense of justice and injustice before that was really understood, and they taught a kind of human rights before that had been properly identified as a topic.”

His great motivator, then, is the desire to see justice done. “I think, like most people, I went into the law to make the world a better place, with those rather naïve values about trying to improve things. Of course, for most commercial lawyers, we have nice clients and we have crooks and brigands as clients. The reputable and the disreputable. But everybody’s entitled to have justice done, and that’s where I’m coming from, or part of what’s motivating me. It comes back to, can I make a change to people’s lives?”

Stephens’ intellectual curiosity, coupled with a desire to set the direction of the law, draws him towards appellate courts at home and abroad, as well as the international human rights tribunals: the latter, he comments, “are almost policymaking courts and I quite often look for arguments that will be attractive to those courts, because invariably they will be the interesting cases that one is going to do”.

He displays his crusading zeal in relating how he was recently “provoked” to go to Azerbaijan, which despite holding the presidency of the Council of Europe – the body with oversight of the Strasbourg Human Rights Court – does not take kindly to criticism of its President or Prime Minister. There he took up the cause of a woman journalist whose critical reports were rewarded by the secret police filming her having sex with her boyfriend in her own bedroom, and threatening to release the scene if the criticism continued. Ultimately, as it was being drip fed to the public, “In order to continue to be able to write her honestly held views, she released the whole video on YouTube and carried on lambasting the Government!”

Aspirational standards

Focusing more particularly on the Commonwealth, has the United Kingdom given it a legal heritage to be proud of? Stephens answers affirmatively, despite acknowledging the controversies that stem from colonial legislation, such as repressive anti-gay laws – an issue typical of those on which the CLA campaigns. Both the Association and its conference are “founded on human rights principles, now embodied in the Commonwealth Charter of Rights which the Queen signed last year, and all have acceded to”, and Stephens highlights the legal body’s role in setting the standard for public opinion to follow.

“For example, many countries still have the death penalty, and we have a resolution from a previous conference that lawyers will work to have the death penalty abolished. We’ve also got general consent to the decriminalisation of consenting adult homosexual behaviour: we beat the International Bar Association to that by something like five years, which given the diversity of our membership is pretty amazing, and that comes out of the membership understanding where the rule of law needs to go.”

He elaborates on that: “Very often we need in society laws which are aspirational. For example, when many of our race relations laws in this country were enacted, the majority of people were frankly bigoted; that has changed because the law sets a bar on behaviour and gradually people’s behaviours adapt to that bar and hopefully surmount it, and I think they have surmounted it now. So what we’re doing is looking to aspirational standards in some parts of the Commonwealth.”

Sometimes just being seen to be watching can make a difference. “Beatrice Mtetwe, a Zimbabwean lawyer, was arrested on trumped up charges by the Mugabe Government and sent to trial, and we sent a trial observer to ensure that she got justice and a fair trial. [She was acquitted.] Jeremy Bentham once said: ‘Publicity is the very soul of justice; it is the surest guard against improbity; it keeps the judge himself while trying under trial’, and that is part of what sending a trial observer is about, the judge knowing that there is going to be a report to his or her peers about the way he or she conducted the trial, and indeed the prosecutor and defence, how did they behave.

“That’s also the sort of thing we did in Sri Lanka with Justice Bandaranayke [impeached by the Parliament despite the Supreme Court declaring the move unconstitutional]; in Nauru, where judges have been removed for their independence of thought; in Bangladesh where lawyers who have defended people falsely accused of apostasy have been attacked and in some cases murdered.”

Legally spectacular

Can the conference itself make a difference here? The previous event, in Cape Town in 2013, passed a resolution calling on governments to suspend Sri Lanka from Commonwealth councils and to reconsider holding the Heads of Government meeting there. How often is it asked to take a stand in this way?

Stephens explains that the conference serves a number of purposes. “It’s about bringing people together to network. Many people in this country, particularly in the black and Asian ethnic minorities, have historical and familial links to other countries within the Commonwealth, and professionally they are able to develop those links and their own business practices as a result of going to the Commonwealth Law Conference. Equally, there are networking opportunities for commercial firms to meet others from around the Commonwealth – and elsewhere.

“So there are a whole variety of areas that we can push, but an element of that is debating contemporary legal problems: the death penalty, blasphemy laws, attacks on the independence of the judiciary, the decriminalisation of homosexuality as opposed to the legalisation of marriage, are all things which I think are really important, and you can set a standard, have a debate and come up with a conclusion and an outcome.

“With so many conferences you can go and listen to a very worthy paper, but there’s nothing to take away, and what we quite often do, particularly in the human rights stream, is to try to come away with some outcome.”

More than that, however, the conference is “a bringing together of spectacular minds”. Stephens, who was in his 20s when he first went, recalls that “What I found really engaging about it was it’s not like the IBA, which is another international conference, but it’s a commercial conference. The thing about the Commonwealth Law Conference is that it’s non-commercial. Judges, Attorneys General, Solicitors General, senior lawyers from around the Commonwealth come together with a shared culture and history of the law to work through the different challenges people have.

“The senior judiciary won’t go to commercial conferences; they only go to this because it’s a sort of NGO conference. The CLA has observer status at the Commonwealth Heads of Government and the senior law officers of the Commonwealth, and that’s why they engage with it; and the most senior lawyers engage via the Commonwealth Lawyers and the Commonwealth Magistrates and Judges Association which has its conference at the same time, rather than through organisations like the IBA.”

Two-way engagement

Having been persuaded to try it by a senior (Jamaican) lawyer, Stephens found himself being introduced to many senior players there: “What I found interesting was that you had the Chief Justice of just about every country in the Commonwealth, his Attorney General from just about every country, all the key players from just about every country, and they were having a debate at the highest level. And you could be party to this really top-quality debate.

“People go a long day’s march to see and hear the top legal minds from around the world, and what this had was all of them in one place. You could chat to them in the informal breaks and in the social settings, network with them, as well as at the formal sessions where you would hear really far sighted and thoughtful interventions on how the law should develop. And that I think has fed the curiosity that I have about the way the law should emerge and develop and react to changing public or social circumstances.”

He believes the benefits are two-way. “When we went to South Africa last year, Lord Chief Justice Judge held a breakfast for a whole raft of students which he and the Master of the Rolls went to, and I think that those people had the same experience of being inspired as I did. That for me was a major achievement, and what for me was interesting was that I think both Lord Judge and the Master of the Rolls also really enjoyed the interaction. They wanted to engage, and they got real pleasure out of engaging with those students.”

Leading by example?

Stephens has described membership of the Commonwealth as a “badge of respectability”, but do enough of its members live up to its ideals for that to be the case? “I think they do”, he replies. “There are obviously in any family the odd black sheep, and there are people at different points on the emergence of their societies and their laws, and some of them are unfortunately in more totalitarian states. But it is a badge of honour, it is something that brings a family together, and it has a set of shared values which are embodied in that Charter of the Commonwealth, which actually is about fundamental rights and values. With all laws and statements of that kind there will be some people who fall short, and what you have to do is to point out that they are, so that they don’t become a pariah state within the Commonwealth.”

He believes too that the United Kingdom has a special responsibility to show a lead – one it is failing to live up to. “There are real problems with the rule of law in the UK at the moment”, he asserts. “We are sleepwalking, we’ve been eroding the open justice principle that I spoke about, which keeps the judge while judging on trial, with secret trials – that’s very topical today. And while we have competence in this country, as President of the Commonwealth Lawyers what I find is that when I go to other countries, and I say you’ve got secret trials and that’s inappropriate, they say, well you’re doing that in London, so judges here have to remember that their behaviours are adopted around the Commonwealth.”

What should ordinary lawyers be doing about it? “There are real issues: legal aid, for example, is under real threat, and I think coming together as a profession to understand what can be done, what is the best practice from around the world, what are the dangers of embarking on a particular course of action are really what we as lawyers learn from one another at events like the Commonwealth Law Conference. They act if you like as a catalyst for that sort of conversation.”

Look out ONLINE

The 19th Commonwealth Law Conference takes place in the Scottish Exhibition & Conference Centre, Glasgow, from 12-16 April 2015.

The programme is now available at www.clc2015.co.uk, and it is understood that registration will open shortly.

“Girls not Brides” in Glasgow

Mark Stephens’ latest interest, which features on the programme for Glasgow, is “Girls not Brides”, the global partnership of organisations working to end child marriage (www.girlsnotbrides.org). “Every year, approximately 14 million girls are married before they turn 18, across countries, cultures and religions”, he says. “Robbed of their childhood, denied their rights to health, education and security. In the developing world, one in seven girls is married before her 15th birthday, and some child brides are as young as eight or nine. Obviously, this is a real problem in some Commonwealth countries.”

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