The quality of silk

Despite the evidence of well-nigh one hundred days of petition hearing sessions that it is a really uphill struggle to get the HS2 Select Committee to agree that changes to the Phase 1 hybrid Bill are necessary, petitioners naturally want to give it their best shot when they get their chance to appear in Committee Room 5. For individual petitioners who do not feel up to doing the job themselves, the practical alternative is to seek out a Roll B agent who is prepared to do it for them – preferably free of charge, or at low cost. One person who has been a stalwart servant of the public good in this respect is Stop HS2’s Joe Rukin, who has represented a number of petitioners in front of the Select Committee.

Local community organisations may find that they have the resources to appoint professional legal advisers, particularly if a number of them in the same locality come together to share costs. This is just what the three parish councils and two action groups in Community Forum Area (CFA) 17 did.

Our first step was to appoint a solicitor, and we opted for one of the firms that employ parliamentary agents. On their advice we also subsequently briefed a barrister to represent us on the day of our hearing. Looking back on the experience, although it was very helpful to have a professional keeping our evidence on track on the day, I think that where the assistance of solicitor and barrister was most helpful was in reviewing our early tries at preparing evidence and helping us improve our case.

As it turned out the Select Committee was mostly unresponsive to what we had to say so we would hardly have fared any worse had we saved our money and gone for the “do it yourself” approach. However, I do not regret using professional legal assistance, although, having now gone through the process and learnt the ropes, I would chose DIY should I be required to present another petition in future.

Notwithstanding, what barristers bring to the party is finely-honed skills in advocacy and the art of cross-examination, neither of which you are likely to possess yourself to any appreciable degree. So, if your budget does stretch sufficiently, you may find yourself discussing the appointment of a barrister with your solicitor, and having to make the choice of whether to splash out on a Queen’s Counsel (QC). Colloquially called “silks”, after the material from which their gowns are fashioned, these barristers are the senior members of their profession and command fees commensurate with their status. As with all things in life though, you don’t always get what you pay for, and my consortium of petitioners opted, on solicitor’s advice, for a more junior, but up and coming and highly regarded, younger member of the profession. I have to say that we were totally happy with our choice in all respects.

However, if you are contemplating splashing out on a QC, and are seeking reassurance that silk can be better than cotton, I recommend that you take a look at a couple of examples of QCs in action in front of the Select Committee.

For an example of top-notch advocacy I suggest the closing submission that Martin Kingston QC, a silk for more than twenty years, made to the Select Committee on behalf of his clients, the Chiltern Ridges HS2 Action Group and Conserve the Chilterns and Countryside (see footnote 1). Asked by the Chairman for “brief final remarks”, Mr Kingston launched into a full, and masterly, summary of his clients’ case and the Promoter’s response lasting the best part of twenty minutes. In asking the Committee to be “patient” with him, he explained that the reason that he felt obliged to do this was his clients’ “frustration” with the process that had just taken place. His chief complaint was that the promoter had not engaged adequately with his clients’ attempts to provide the Committee with a cost benefit analysis for their proposed tunnel alternative, primarily that the Promoter had offered no expert testimony, but he also delivered a pretty decent demolition of the whole case that had been argued by Tim Mould QC, Lead Counsel for the Promoter, on behalf of his client.

Unfortunately, excellence does not always reap its just rewards and, judging by the Committee’s recent statement on its “interim Chilterns tunnel decisions”, Mr Kingston’s pleadings for his clients’ preferred alternative of the “T3i” tunnel fell on deaf ears.

My second example demonstrates the skill of cross-examination. I feel that, in general, the Promoter’s expert witnesses have been given a fairly easy ride; petitioners taking on cross-examination of these witnesses themselves appear far too easily rebuffed, and I can only recall two or three occasions when any of the Promoter’s experts have been under pressure to any extent, and that has been down to the questioner being a barrister skilled in the art. My example, which is one of these occasions, is Peter Miller, Head of Environment and Planning for HS2 Ltd and a regular contributor to the Select Committee’s proceedings, questioned by Timothy Straker QC acting for the four statutory bodies responsible for the Chilterns AONB (see footnote 2).

Mr Miller had to endure over an hour of dogged and determined questioning from Mr Straker. Whilst the latter did not deliver any knockout blows, he did make life uncomfortable for the HS2 Ltd man, who appeared evasive and very wary throughout. The silk also forced Mr Miller into some corners where he found it necessary to sacrifice some credibility in order to squirm out; for example, he found himself offering the restoration of footpaths severed by HS2 as an example of the project providing a social benefit, so asking the Committee to regard returning the status quo as delivering benefit (see footnote 3).

I really would like to see more of this sort of thing, and fear that we can only look forward to really effective cross-examination when it is entrusted to the professionals.

Footnotes:

  1. Mr Kingston’s submission was made during the public session held by the HS2 Select Committee on the evening of Monday 20thJuly 2015. I recommend that, in order best to judge its impact, you view the video; the closing submission begins at 20:07 hrs. If you want to see a print version, it runs from paragraph 337 in the transcript.
  2. Mr Straker’s cross-examination of Mr Miller took place during the public session held by the HS2 Select Committee on the afternoon of Wednesday 15thJuly 2015. It runs from paragraph 1 in the transcript, or may be viewed from 13:59 hrs in the video.
  3. See paragraphs 68 to 71 in the transcript of the afternoon session of the HS2 Select Committee held on Wednesday 15thJuly 2015.
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