Month: May 2014

Legal Quote of the Day

Lady Hale in Clyde & Co LLP & Anor v van Winklehof (Rev 1) [2014] UKSC 32:

“Meanwhile, in another part of the forest, the Law Commission and Scottish Law Commission were conducting a joint project on partnership law…”

This conveys my thoughts exactly. 🙂


Reading – for the dull? Pupillage – for the privileged?

OK, the website LegalCheek isn’t what I might call a high-level information website; it’s there for fun. And possibly as a subtle reminder for lawyers, and aspiring lawyers, to watch themselves on social media. (“Be nice or they’ll write an article about you on LegalCheek…”) But an article came up the other day, entitled “11 Things Not to Do in a Pupillage Interview”. Which I read (being an inveterate reader of everything including toffee papers) despite it not having anything to do with me.

Imagine my surprise to read the following:

7. List your hobbies as “reading”, “walking” or “going to the cinema”.

Unless you consider normal day-to-day activities such as “blinking” and “breathing” are also hobbies, these things are not hobbies for most sentient and/or mobile individuals.

Hobbies are racing swans or building models out of scrap metal or land yachting. Oh, and while we’re on the subject; things like “visiting mausoleums” or “attending séances” are not hobbies either, they are just downright weird.


11. And finally…you know that bit where we ask you if you’ve any questions? The correct answer to that question is almost universally…


Unless of course it’s an interesting question we’ve not heard 200 times already. Which it won’t be. That’s actually our signal that the interview is over and it’s time to exit. “So make like a tree, and leave.”

To take the second point first, I’ve always thought that they call interviews “interviews” because the process goes both ways. As a person considering joining the company, firm, or chambers, you are trying to evaluate them just as much as they are trying to evaluate you. After all, do you really want to be stuck in a working environment with whose philosophy and workplace culture you don’t agree? “Any questions?” asked by the interviewer is there to help you figure out whether you want to work with them. Its secondary purpose is to enable them figure out whether you have enough practical common sense to ask practical questions, and enough interest in the job to ask them – at least, it has been when I’ve been interviewing. Of course, if this article is to be believed, barristers’ Chambers (or, at least, the author’s chambers) don’t like their pupils asking questions – which tells me something right there.

And for the first point… reading and walking not hobbies? Then, of course, you carry on and read the comments, and further suggested hobbies are ‘land yachting’… ‘playing the contra-bassoon’… ‘ice-climbing’…. there is a whole list of hobbies which are united by one common factor: they are expensive.

The argument given is that ice-climbing and land-yachting make you an interesting, well-rounded person, while reading and walking do not. This shows a distressing lack of appreciation of what makes a person interesting. How many of us have been trapped in a room with a person who has but one interest in life (ice-climbing, for instance) and will not shut up about it? Or several, equally exciting interests, but will not let anyone else get a word in edgewise? Are these people interesting and well-rounded?

On the other hand, take the inveterate reader. I’ve sailed round the world with Clare Francis, and circumnavigated it by divers means with Phileas Fogg. I’ve flown with Douglas Bader. I’ve bicycled to India with Dervla Murphy. All without leaving my own home, and for the price of a book (or for free in some cases). My parents, when I left school, didn’t have the money to send me on some expensive gap year to build orphanages in Tanzania. I don’t have the money now to go sailing.

Instead, I read. Philosophy, ethics, theology, metallurgy, fashion, baking… pretty much anything. I may not be able to fly a plane, but I know more or less how the controls work. I can discuss comparative theology and the nature of belief with a Islamic scholar and come out the other side not looking a complete idiot, and with both of us having had an enjoyable conversation.

Reading opens the whole world to me – and not just the world of things to do. It introduces me to people and societies I would never have encountered otherwise. I’m not confined to the people who share my interests (and my background) – I can meet anyone, anywhere, any time, and take a look into their lives. A good book, too, allows you to get inside people’s heads – you can learn why people do what they do. What makes people tick? And what does that mean for society?

To devalue reading is to devalue a pursuit that can enable you to talk to anyone, about anything. You may not be the world’s expert on quantum physics but at least you know enough to maintain a conversation with someone who is. Which would you rather be on a long train journey with: someone who can only talk about their own interests – or someone who knows enough to talk about yours?

Then we come to disregarding ‘walking’ as a hobby. This is just as bizarre. Yes, most of us can do it, and yes, taking an amble down to the corner shop to get a pint of milk doesn’t really make it as a leisure pursuit. But ‘walking’ as a hobby is not about walking-for-utility. It’s about walking for walking’s sake, and also for seeing the countryside. I’m not a keen walker myself, but most of my husband’s childhood holidays were walking holidays, and it seems to have stuck. ‘Walking’ as a hobby includes such things as doing the Pennine Way – a 270 mile walk, generally done in three weeks (or, if you’re feeling particularly gung ho, two). My husband did it when he was fifteen, and wants to do it again.

Walking is not flashy, but it can be pretty physically demanding. I wonder if this contempt for walking stems from the fact that it’s not ‘exciting’. Walking is a hobby that requires you to slow down. You get from A to B at a top speed of about 4m.p.h.. This is much underrated, because it gives you time to notice things around you. Flowers. The way grass grows when it’s kept short by sheep (very short and fine, almost like a bowling green, but with more dung). The feel of the sun on your face (or, more usually in the UK, the feel of the rain down the back of your neck). Water. For me, one of the best parts of walking is encountering streams and rivers. I just like them. I could watch them for hours. Walking also gives you time to think. Your body is occupied doing something fairly repetitive, and that gives your mind time to mull over things that need mulling – or just to relax and do nothing for a while.

However, an even more worrying aspect of the ignoring of hobbies such as reading and walking in favour of ‘flashy’ pursuits and achievements is who has access to what. Reading and walking are inherently cheap – or even free. Exciting gap years, yachting, ice-climbing, etc – all cost significant amounts of money. My husband is a teacher, and one of his students (the first in his family to apply to university), said “Gap years? They’re for middle-class rich kids.”

Not only does a gap year cost money during the year itself, but that’s one more year in which the gap year student is not earning their own living. One more year in which their parents have to support them – even more difficult if there are younger siblings to be supported too, especially with university fees to factor in.

In selecting for pupils who have ‘exciting’ hobbies on their application form, this indirectly selects for pupils with money. Or, rather, puts an additional barrier in the way of pupils without money.

Look at the numbers in this document:

Chapter 13 (starting on page 42) is the bit you want.

Page 48: Level of debt amongst pupils. 22.5% have no debt. Now, how do you think that happens, with at least three years of university fees and the BPTC (which can cost up to ÂŁ17,000 for the year) on top? A further 2.5% have less than ÂŁ1,000 debt. Where does all that money come from? If the student isn’t paying for it (and some are likely to be mature students with savings), then that will be parents. I know my parents didn’t have a spare few thousand when I finished my undergraduate degree.

Page 49: Most frequently attended universities. The most frequently attended is Oxford (20.2% of pupils) and the second-most frequently attended is Cambridge (14.3%). So more than a third of pupils are Oxbridge graduates. Looking at Oxbridge and social class, there is some data (admittedly from 2010) indicating that Oxford and Cambridge were the two universities with the lowest proportion of undergraduates from manual occupational backgrounds. The same figures give the total number of undergraduates in the UK; Oxford and Cambridge together account for 1.63% of all undergraduates. So a pupil barrister is 21.1 times more likely to have done their undergraduate degree at Oxford or Cambridge than the general population.

Page 50: Schools attended by pupils. 39.6% of pupils stated that they attended fee-paying schools (as opposed to 11.2% – in 2009/10 – of the general population). So pupil barristers are over 3.5 times more likely to have gone to a fee-paying school than the general population.

On page 51 (Chapter 14), it states that 64% of pupils attended a Russell Group university, and 81% came from a professional background.

One could, of course, argue that working class people are inherently not clever enough to be capable of being barristers. That the Oxbridge-and-fee-paying-school educated applicant is simply the demographic of the ‘best person for the job’. But it is rather difficult to believe that this is the whole story. Do we really believe that Oxbridge graduates are 21 times more likely to make good barristers than graduates of other universities? Or that on average, people who went to fee-paying schools are 3.5 times better than the state-educated?

Interestingly, some solicitors’ firms (e.g. Clifford Chance) are starting to acknowledge openly the concept of ‘CV bias’ – that the selection process gives a significant advantage to applicants with ‘the right background’ (i.e., Oxbridge, fee-paying school) that goes beyond any objective factors such as the known fact that Oxbridge takes a much higher proportion of the very brightest students than other universities – so to get into Oxbridge, you have to be pretty bright, and the very brightest are encouraged to apply there. This policy has, apparently, made a difference, with many more applicants from different backgrounds gaining places.

So students who did not go to a fee-paying school, and did not go to Oxbridge, are already at a severe disadvantage when applying for pupillage. By adding a requirement to have expensive hobbies, the disadvantage is increased. Attending Oxbridge is clearly more important than attending a fee-paying school (21x rather than 3.5x) – and is technically within the reach of those who are not wealthy (although the number of manual-class students going to Oxbridge is low). However, by adding ‘flashy’ hobbies to the list of requirements, this effectively eliminates anyone who doesn’t have the spare cash to spend on such things – and, since you can be a boring ice-climber just as easily as you can be an interesting walker, does nothing to achieve the stated purpose, which is to choose ‘interesting, well-rounded’ people.

It’s quite natural, of course. People want to work with people who are ‘our sort’ – people who share a common educational and social background. It cuts down on those awkward moments when a casual conversation about whether or not it’s necessary to wear a crash helmet while skiing reveals that one member of the group has never, in fact, been skiing. But nowadays, there is more appreciation that this is a barrier to social mobility, and that people should be judged primarily on their ability to do the job, not on their social background. The attitude that ‘people should stick with their own class’ is gone – at least, officially.

Of course, one shouldn’t take the LegalCheek article too seriously. After all, it’s meant to be a bit of a joke. But it’s a joke that has a grain of truth to it. The numbers support the assertion that if you are a non-Oxbridge state-educated applicant, your chances of getting a pupillage are likely to be significantly lower than otherwise. If Chambers are also penalising applicants who do not have ‘exciting’ [expensive] hobbies, then this is likely to further reinforce the Bar as one of the last bastions of social privilege in the country.

Bucket List

Bucket lists. Everyone’s got one, it seems, and it’s got nothing to do with useful household items. It’s a list of things you want to do before you die, and it originated with the film ‘The Bucket List‘, about two cancer patients who go on a world tour of doing all the things they really want to do before they die.

Now, there’s even a website where you can post your Bucket List and compare it to other people’s, and judging by what’s available on the internet, everybody and his brother wants to swim with dolphins (but do they want to swim with us?). Or take a balloon ride over the pyramids (personally, I don’t think I’d want to be in a hot-air balloon basket flying over anything pointy).

There’s discussion about whether bucket lists are a good thing or a bad thing. Do they give us goals in life, or do they fill life up with stuff that just turns into more and more things to rush through, ticking them off a list in a mad hurry to get to the end? Do you end up so focused on ticking things off your list that you forget to enjoy them? Or forget to pay attention to the people around you?

One thing about bucket lists, though, is that they seem to change – not just as you get older (and suddenly bungee jumping seems less attractive) but as death changes from an abstract concept – or something that only happens to other people (unless the elastic snaps) – to something that is real, imminent, and personal. Simon Mitchell, diagnosed with lymphoma, has a bucket list that is mostly about helping others. Stephen Sutton, who recently died of cancer at the age of 19, found his bucket list changing from things that he wanted to experience, to things that would help others.

I wonder, as we come to terms with our own mortality, do we realise that packing in more and more ‘experiences’ is ultimately pointless? If we wish to leave a lasting legacy, to leave our mark on the world in a good way, we should instead help others. Or is it not so much leaving a legacy, but that spending time rushing from dolphin-pool to pyramids is ultimately less satisfying than doing something useful to help others? Or that the whole point of a bucket list is to create memories – and if all you’re doing is going bungee jumping, the only memories are yours, which will shortly be extinguished when you die. But if you do something for someone else, their memory will carry on for years.

I don’t know. But I know my bucket list is completely dolphin-free. Not that I object to dolphins; I think they’re quite interesting. But I don’t think they’d be that interested in swimming with me, and I’m quite happy to let them get on with doing whatever it is dolphins do.

Because one thing I have figured out is that if you’re not careful, life gets in the way of actually living. You get caught up in work, eat, sleep, pay the mortgage, tax the car… and suddenly, your life is half-gone and you feel like you’ve achieved nothing. Since I’m now very nearly officially in my late thirties, and I have grey hair, I’m having that incipient-mortality feeling (already). So my bucket list is all the things that, when I’m really old (not just working up to it, like I am now) I don’t want to be thinking “I really wish I’d made time to do that.”

I find it’s the quieter things that I would regret the most. I don’t really want to swim with dolphins, or go skydiving. I wouldn’t object to going to Uluru, but not ever going wouldn’t upset me either. But I want to practice law. I want to learn Arabic. I want to publish. I want to be good enough to shoot competitively.

I may not ever achieve these things, or not as well as I would like. But at least I will have made the attempt – I will have tried. Because the worst thing of all – worse by far than failure – is never to have made the attempt.

If you try and fail, then at least you know you tried. If you never even try, you’ll always wonder: “If I’d just had the guts – the will – the determination – could I have succeeded?”

So now I’ve got a Bucket List – which I shall keep updated, both with new things and progress on existing entries. Let’s see how it goes. 🙂

Don’t waste your vote

Voting is a privilege. Just ask anyone who isn’t allowed to. It’s the one thing that everyone over the age of 18 can do to decide the fate of their country.

Yes, we all know that the standard of politicians we get nowadays is pretty dire. Something seems to happen to even ordinary, decent people when they get elected. Maybe they have some sort of surgical procedure that removes all their common sense and compassion, and makes them into power-mad idiot maniacs who then go out and fiddle their expenses and have extra-marital affairs. (Of course, some achieve degrees of idiocy that even major surgery couldn’t possibly explain.) This has even got a name: the “Westminster Bubble“.

But really, the people who protest against this by not voting, by casting a blank vote, are just as bad. People who vote for someone who they think would actually be harmful to the country (though unlikely to get in) are even worse. As can be demonstrated by the following:

1. Do you really think that people who really think that people like Nigel Farage should be allowed to run anything (even a footrace) are likely to refrain from voting?

2. If people who think Nigel Farage should win vote for him, and the people who are ‘protest voting’ for him because they want to teach the major parties ‘a lesson’ vote for him, what do you think will happen?

3. If people who think Nigel Farage should win vote for him, and people who think he’s a politically dangerous loon refrain from voting for any of the other parties, what do you think will happen?

You people who are considering ‘protest voting’, how would you feel if Nigel Farage (or one of the other equally crazy candidates) got in by a narrow margin – possibly by, for example, just one vote?

For pity’s sake, people. Don’t waste your vote. Voting for Labour or the Conservatives, or even the Liberal Democrats, doesn’t mean you actually like them. It just means that you dislike them less than all the rest.

Damage limitation, people. When all your options are bad, choose the least worst. Then at least you can sleep at night knowing that you did your bit to shore up the crumbling dikes against political insanity and extremism.

Where are all the women?

Today, Legal Cheek posted an article about the lack of women in top position in law.

The automatic assumption that there are no women in top jobs because of entrenched sexism in the legal sector worries me. There might be entrenched sexism. I don’t know. But, as far as I can see, neither does anybody else. Because we just don’t have enough information. A lack of women at the top might be due to entrenched sexism in the legal sector, or it might be due to something else.

The lingering problem we have, when discussing gender stuff, is the tacit assumption that some roles are intrinsically more valuable than others. For instance, being a partner in a law firm is intrinsically better than being an associate. Or spending time giving lectures on conferences is intrinsically better than doing whatever it is you would have been doing had you not been there. Consequently, if there are a lot more men than women doing these intrinsically better things, it must be because women are being kept out of the good stuff.

Nobody seems to be thinking that the aim of equality is to give equality of opportunity, and let the chips fall where they may. If women don’t want to be partners and directors, and to give talks at conferences, why should they do it?

And there, we come to the second assumption that gets made: that the ‘external’ pattern of behaviour (that’s not a technical term, by the way), which manifests in getting high-status, high-pay jobs, and giving talks at conferences, is intrinsically better than an ‘internal’ pattern of behaviour that concentrates on less flashy roles, like bringing up children, or making sure that the dust bunnies under the bed don’t grow into dust crocodiles and start eating the smaller members of the family.

This means that women who choose roles other than the high-flying, high-paid, high-status ones are pitied (either as victims of others, or victims of their own lack of self-worth) or derided. On the other side, what about the men who’d quite like to opt out of the rat race too? Women, at least, have the get-out of ‘housewife’ and ‘stay-at-home mother’ being accepted (though increasingly unacceptable) choices for a woman. ‘Househusband’ and ‘stay-at-home-husband’ much less so. We talk of the top roles all being taken by men, but how many of those men would actually have quite liked to have settled for a lesser role that was less stressful? It’s more socially acceptable for a woman to go part time, or not to want promotion – people assume it’s “because of the children”. In a man, the assumption is that he’s lazy, unambitious dead wood who’s best got rid of in the next restructuring.

What about a middle way, that embraces the ‘external’ but only so far. After all, if you’re working 90 hours a week and earning ÂŁ500,000 a year, when do have time to enjoy yourself? You might be rolling in money, but you don’t have time to roll down hills. Money and status are all very well, but what will make you happy?

I am female, and I’m currently about to embark on a career in law – I’m a second careerist. I’m abandoning a reasonably well-paid career to take a significant pay cut, just so I can work in law. Law, I find, is just about the most fun thing you can do in an office with all your clothes on and not get arrested (OK, the not getting arrested part is negotiable). But even so, my dreams do not include being a partner in some big law firm. Money, for me, is a means to an end. It is of value only to the extent that I can use it to buy things that I want. But the things I most want (beyond food and a roof over my head), are not for sale: time to spend with my husband; time to have fun; time to study law and become the best lawyer I can be; time to write.

Status, in the narrow sense of being the big boss, is not what I want. Not that I would mind having high status, but I wouldn’t pursue it at the expense of being able to do things that I enjoy. What is life for, if it’s not to be enjoyed? We won’t get a second chance. We have only a mere eighty or so years in which to get done all the things we would like to do, before we come to an end. I am not going to waste a minute of my allocation of years in pursuing money for the sake of money, or status for the sake of status. What, after all, is the status gained by the simple holding of a position? It’s the opinion of people who know nothing about you. The good opinion of those who know you, and know your work, is of greater value, and does not depend on your job title.

Going back to the original question, “Where are the women?” the answer is unknown. Without more information, we don’t know whether the answer is “Toiling away in the back room, unappreciated and underpaid because the intrinsic sexism of the legal sector (or society) won’t let them rise to the top.” or “Sitting relaxing with the drink of their choice, congratulating themselves on having avoided getting caught up in the rat race.” Or somewhere between the two.

Before any action is taken, we need to find the answer. There is no benefit into forcing women into roles they don’t want simply because we think they ought to want them. There is also no benefit in dropping women into top roles without figuring out how to tackle the sexism (if any) preventing them rising to the top.

Sexism: the pathetic, the dangerous, and the difference

Sexism is alive and well, and likely to be so for quite some time. It does, however, come in different types – and some are worse than others.

The publicity-grabbing sexism is, strangely, the least worrying. Richard Scudamore and Nick West’s inane email exchange only demonstrates how pathetic both men are. It’s on a level with the scrawny, wimpy guy in the pub demanding “Hold me back! Hold me back!” as he completely fails to make an effective aggressive move. You just know that the protestations are there only to cover the speaker’s lack of any real intent to do anything.

The sexism (or anything-else-ism) that you need to worry about is the sexism that comes with a smile and reasonable words, or the sexism that happens quietly, in the background. These are more dangerous because they’re harder to spot and harder to fight.

Take women’s sport, for instance. The sexism in sport we should be worrying about isn’t middle-aged men sending silly emails to each other, but the allocation of funding and publicity. Where is the publicity for women’s football? How much are female footballers paid? Female cyclists?

I sometimes flick through the sports section of the paper, and whenever I do, I’m depressed all over again by how little coverage there is of women’s sport. The only sports that get decent coverage in general (other than coverage of the major sporting competitions like the Olympics) are tennis (women in tiny little shorts or skirts), gymnastics (women in leotards) and ice-skating (ditto). The Times did a piece on women’s cricket a while ago, which I was happy to see (even if it was just a little bit patronising). The political types occasionally bemoan women’s lack of involvement in sport – well, what do they think is going to happen if women’s sport is so far under the publicity radar it’s practically a secret? There are apparently netball leagues; who knew? I certainly didn’t.

But women’s involvement in sport will always be minimal while women’s sport is given less funding and less publicity than men’s sport – and nobody complains about that. It’s simply accepted that the sporting world is a man’s world, and women get paid less.

This kind of sexism is dangerous; it implies that women don’t want to do ‘men’s things’, when the real situation is that they are not even given the opportunity to try – or even made aware that the opportunity exists. And that women’s sport is worth less funding and less page-time, because it’s less interesting – simply because it’s women doing it.

Likewise, there are worrying indications that various regulatory bodies are thinking of introducing ‘quotas’ for women in certain positions. This is a tacit statement that women can’t make it on their own; that no amount of checking of processes and levelling of playing fields will work: women simply can’t measure up, so a quota is needed to hand them the top jobs that a man would be expected to work for. How on earth will it help to produce sexual equality if a man on an executive board can (justifiably) say to his female colleague “You’re only here because we had to pick a woman; shut up and let the qualified (male) people talk”? If I was a woman appointed under such circumstances, I would also end up wondering whether I really was qualified to do the job. If you are given a job simply for being female, what does that say about your competence? And your chances of getting your subordinates to respect you?

This kind of sexism is dangerous: it attacks women’s credibility and destroys their accomplishments. In this kind of environment, any woman is assumed to have got where she is by dint of being born female, rather than by her talent, skill, and hard work. Thus it becomes easier to sideline women compared to the men who have ‘proved themselves’.

If you read opinion pieces by journalists the covert sexism is also easy to spot, once you are alert to it. It shows in criticism of women’s physical appearances, and most particularly in criticism of any woman who implies that it’s OK not to want to be a ‘wife and mother’ (or, indeed, that it’s OK to stay at home and look after the kids) – that it’s OK to choose between career and kids. This sort of thing gives women an impossible standard to live up to: not only do women have to aspire to a high-flying career, but they also have to get married and have kids and look gorgeous while they do it. Anyone (male or female) who dares to comment that one person doesn’t have time to do all that properly (bringing up kids being a job on its own) is mocked, derided, or demonised.

Yet we don’t expect men to do all that. What better way to keep women feeling guilty and second-class than by setting impossible standards?

Then, of course, there are the different standards at work. Starting with dress. At one workplace I visited, the men were all attired in suits and ties. Very smart. The women’s attire varied from suit to clothes more suitable for slopping around at home on the weekend. If you want to be taken seriously, ladies, act like it. Dress like a professional, and you’ll go some way towards being treated as one. And, of course, allowing a lower dress standard for women tacitly implies that women aren’t capable of reaching a higher standard – or that their work is at a lower level.

The problem is that there is confusion between equality of opportunity and equality of outcome. What is the point of appointing women into top positions if they won’t be taken seriously because everyone knows they were appointed purely because of their gender and not because they were the best person for the job? This approach only shows the underlying sexism of society in assuming women need that kind of ‘help’.

Instead, the effort should be going into creating equality of opportunity, where the barriers – like lack of funding, lack of publicity, old-boy-networks and so on – are removed so that women can prove that they are equal. But this would, of course, entail decisionmakers actually believing that women truly are equal, and can succeed on their own if given the chance.

Unfortunately, that belief in true equality seems to be in pretty short supply.

Scudamore, West, and the inadvisability of rock-heaving from within vitreous dwelling-places

Richard Scudamore (big cheese in the Premiership League) and Nick West (sports law partner at DLA Piper) are in trouble this week.

They exchanged private emails – from their work email addresses – containing a number of sexist remarks about women. These emails were then read by a ‘temporary’ employee at the Premiership end, who accessed Scudamore’s email account without permission and promptly handed the good stuff to the media.

And there was outrage.

Feminists are calling for Scudamore to be sacked (although nobody seems to be objecting to West’s participation, maybe because it’s safer to mess with footballers than it is to mess with lawyers).

Frankly, I find it hard to get all that excited. From what I’ve read, the emails were the kind of silly, bloke-ish rubbish that men come out with when they’re trying to do the Male Bonding thing and prove what Real Men they are. I don’t find it threatening or insulting; I find it pitiable. Like politicians who can’t find anything good to say about their own party so they fall back on blackening the names of their opponents, men who come out with this stuff are only demonstrating their deep-seated insecurity about themselves and their place in society.

These two middle-aged men, stuck in their office jobs – particularly poor old Scudamore, whose job is focused very much on younger, fitter men who get all the girls – are probably worrying about various parts of their anatomy going (or remaining) floppy. There’s no opportunity for them to demonstrate their virility; a spreadsheet responds just as well (or badly) to either gender, and every day women are making more inroads into traditionally male preserves (like football and law, for instance). How can they demonstrate their continued manliness – or even relevance? The opportunities for wood-chopping and alligator-wrestling are sadly diminished in today’s corporate jungle.

Sad, desperate, sexist emails are probably the only way left for these two to shore up each other’s failing confidence in their virility. We should not be calling for resignation; we should be advising that they maybe get some counselling, or take a trip to their GP. It’s natural, after all, that at their age, various parts of the anatomy don’t function quite as well as they did thirty years ago. They shouldn’t feel insecure or guilty about it. Real manliness is not about anatomical function; the Code of Chivalry of the knights of old was big on protecting the weak and doing the right thing, but strangely silent on bedroom activity.

So much for Scudamore and West. But I think this demonstrates a deeper problem we have. Nowadays, it’s so much easier for people’s private communications to escape out into the wild, and with the internet, they can be seen by many more people. In the old days, people would make their inadvisable comments in the pub, or by private letter. They’d be extraordinarily unlucky for such comments to get picked up and publicised more widely. Nowadays, with email and social media, an off-the-cuff comment can be publicised beyond your wildest nightmares and follow you for years. That is at the heart of the recent suit against Google, in which the ECJ decided that Google – as a data controller – could be made to take down links to ‘out of date, irrelevant or inaccurate’ information that an individual did not want publicised. But who decides what is out of date, irrelevant or inaccurate? While this might seem to be a good thing for people who want to make sure prospective employers don’t see that picture of them drunk and throwing up in a gutter, it’s more likely to be used by celebrities, politicians and criminals who want to whitewash their pasts.

To my mind, is not the availability of such information, but how society deals with it and reacts to it that is the problem. Back in the old days, an isolated error of judgement – particularly by an ordinary person – wasn’t really a problem because probably nobody would ever find out about it. If you were a professional person wishing to guard your public image, it was pretty easy – all you had to do was satisfy your craving for train-spotting, morris-dancing or competitive rock-paper-scissors, was go to another town and be reasonably careful. Nowadays, a photo taken by a person who doesn’t even know who you are and which features you only in the background, posted on the internet, can ruin your incognito and possibly your career. Increasingly, the only way to avoid such accidental exposure is not to do whatever it is at all.

Now, while you might say “Excellent, we don’t want our doctors and lawyers to be the sort of people who would sneak off and moon around on platforms waiting for the 3:25,” think a minute about what this means. Because ‘professional conduct’ extends beyond not doing anything that is criminal, and into avoiding the undignified, and also into areas that most of us would consider deeply private. What of the teacher who doesn’t want it to be known that he is gay? Should he have to stay away from venues where other gay people are known to gather, just in case? What about the lawyer who enjoys cross-dressing? Should he have to only do it at home with the curtains closed? Alone? What about the doctor who is a member of a minority political or protest group?

It is now more difficult than ever before to keep one’s private life private. I think this means that we need to both redefine what we mean by ‘privacy’ and what we can legitimately expect to keep private, and also we need to change how we deal with information about people. How many of us can say that we have never, ever made a mistake? Never, ever, said anything inadvisable? I think we need to acknowledge that applying the standards of twenty years ago to the world of today is deeply unfair. If Richard Scudamore weren’t chief executive of the Premier League, would we care about his emails? Would this ‘temporary member of staff’ who was snooping around have passed the emails on to the media if Scudamore were, for example, a payroll clerk? More tellingly, would they even have been snooping? Probably not.

We need to acknowledge that a person’s professional life is separate to their personal life – and that a professional person is entitled to have a personal life. We cannot hold professional and high-profile people to standards that, if they were to be imposed on the rest of us, we would regard as a gross breach of our right to private life.

We also need to be more charitable. Back in the old days, finding out that the vicar was involved in S&M parties would have meant that the vicar had probably been careless or indiscreet. Nowadays, however careful he is, he risks exposure, through no fault of his own. We need to acknowledge that it’s no longer practical for people to present the public image of perfection – and that applies to us all. We are demanding the impossible: the public image of a life without blemish. And which of us has that? Instead, we need to be acknowledging that nobody is perfect, and that harmless (but weird) character traits and pursuits, or even unpalatable political and personal views, do not necessarily make a person unfit to do their job – as long as the person has demonstrated an ability to keep their personal life, and their personal views, separate from their professional life.

Holding people to a high standard is one thing – holding them to an impossible standard is quite something else. But I expect that most people will not acknowledge this until they are standing in front of the boss and a member of the HR department, and someone pushes a photo across the desk and says, “So, can you explain this?”

Legal anachronisms – another reason to love the law

Since the English legal system has been going in its present form (sort of) since time immemorial (which is 825 years, 1189 having been set as ‘time immemorial’ by the first Statute of Westminster in 1265), that’s plenty of time for weirdness to accumulate.

Some of the weirdness starts out weird from the beginning; the rest achieves weirdness over time, as laws that were appropriate when they came into being become either inappropriate or utterly bizarre as society changes. Sometimes studying law is like being a paleontologist: you see legal principles fossilised, and it gives you a short glimpse into the lives of people in the past.

The Law Commission has the job of sweeping up as many anachronisms as they can and getting rid of them, making sure we have a legal system that doesn’t go ping at inconvenient moments. But there are plenty that are not caught by their tidy-minded efforts.

One occasion when it did go ping (pre-Law Commission) was the case of Ashford v Thornton [1818] 106 E.R. 140. That is the last recorded instance in which a defendant successfully argued that he had the right to trial by combat. It was a private retrial for murder, brought by the dead woman’s brother, and the brother refused the combat. Thornton (the defendant) was therefore free to go. One does tend to think that the right to trial by combat was one of those things that had been forgotten about – because after Ashford, the parliament of the day acted pretty swiftly to end the ability to bring a private prosecution for murder after an acquittal, and the concomitant right to trial by battle, by statute – the Creating Appeal of Murder, etc. Act 1819 (59 Geo. III, c. 46). Clearly Mr Leon Humphreys did not know this when he challenged the DVLA to provide a ‘champion’ to fight him in single combat in 2002. Where he got the idea that trial by combat would be legal under European Human Rights law, I have no idea – considering the European Convention on Human Rights guarantees both the right to life and the right to a fair trial…

I find this an interesting contrast to the case of marital rape. With marital rape in the news, with various countries making rape impossible within marriage, here in England we should probably temper our remarks with the knowledge that it only became possible to convict a husband of the rape of his wife in England in 1991 (although previous to that various judges, acknowledging how morally wrong this legal principle was, went to great lengths to avoid it). We therefore don’t have much room for superiority. In England, the principle derived from the 1763 edition of Matthew Hale’s History of the Pleas of the Crown (volume 1) in which it was stated that a wife, once she had given her consent to sex on marriage, could not withdraw that consent.

Oddly, Parliament – so swift to act on the subject of trial by combat – made no move whatsoever to remove this legal principle, and thus protect married women from sexual violence. It took the House of Lords, in 1991, to do that, Lord Keith of Kinkel quoting Lord Lane CJ: “This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it”. (R v R [1991] UKHL 12)

Another interesting legal point was that – until the beginning of this year – it was defamation or libel and actionable per se (no need for the woman to prove damage to her reputation) to call a woman a lesbian. Even if she was one, and was perfectly happy for people to know her sexual orientation. The Slander of Women Act 1891 made imputing unchastity to a woman defamatory per se – and the case of Kerr v Kennedy [1942] 1 K.B. 409 confirmed that this applied to unchastity with another woman as well as with a man. The new Defamation Act 2013, which came into force on the 1st January 2014 repealed the Slander of Women Act, and thus ended this little legal anachronism.

The Presumption of Advancement, however, is still alive and kicking, and goes as follows:

Where one person, A, transfers the legal title of a property that he owns or purchases to another, B, without receipt of any consideration, the effect will depend on his intention. If he intends to transfer the beneficial interest in the property to B, the transaction will take effect as a gift and A will lose all interest in the property. If he intends to retain the beneficial interest for himself, A will take the legal interest but will hold the property in trust for A.

Normally there will be evidence of the intention with which a transfer is made. Where there is not, the law applies presumptions. Where there is no close relationship between A and B, there will be a presumption that A does not intend to part with the beneficial interest in the property and B will take the legal title under a resultant trust for A. Where, however, there is a close relationship between A and B, such as father and child, a presumption of advancement will apply. The implication will be that A intended to give the beneficial interest in the property to B and the transaction will take effect accordingly.

The presumption of advancement applies between father to legitimate child (but not illegitimate children! – and not between mother and child unless the mother is in loco parentis), husband to wife (but not wife to husband), fiancĂ© to fiancĂ©e but not the other way around and not between couples who are not either married or engaged…. Apparently the Equality Act 2010 will remove these asymmetric provisions – but that part of the Act (Part 15) hasn’t been brought into force yet. Another interesting bit of law that the Equality Act 2010 will remove (once those parts are brought into force) is the husband’s duty to maintain his wife. Yes, husbands: there is a common-law duty that husbands must maintain their wives (but not the other way around). I must mention this to my husband…

The presumption of advancement is alive and well (see Lavelle v Lavelle [2004] EWCA Civ 223 and Equity and Trusts law school exams), but the husband’s common-law duty to maintain his wife (though it still exists) has been superseded by statutory provisions that work in both directions.

Until 5 days ago (13th May 2014), the marital coercion defence was also alive and kicking, and used by Vicky Pryce in her trial for taking penalty points for speeding for her husband (Chris Huhne). It was a defence to all criminal offences except treason and murder for a wife to show she committed the offence in the presence of, and under the coercion of, her husband. The Pryce trial prompted the government to act to remove this defence, which they did in the Anti-social Behaviour, Crime and Policing Act 2014 c. 12 (section 177).

Under the definition of ‘weird from the beginning’, however, comes the Nuclear Explosions (Prohibition and Inspections) Act 1998 c.7. Under this act (which is not yet in force) “Any person who knowingly causes a nuclear weapon test explosion or any other nuclear explosion is guilty of an offence and liable on conviction on indictment to imprisonment for life”. Since the Act isn’t in force yet, one might conclude that one should hasten to conduct that nuclear test explosion one has been meaning to do one of these days, before anyone gets around to bringing the law into force. On the other hand, since there are already perfectly good laws to deal with people who set off nuclear explosions, one does wonder what Parliament was thinking. Apart from anything else, are the people likely to ‘knowingly cause’ a nuclear explosion the sort of people to take any notice of a law?

How can anyone not enjoy studying a subject so replete with the bizarre? Every law provides an insight into the concerns and beliefs of society at the time it was passed, and the proliferation of statutes provides a legal forest in which there are more lost and forgotten things than the Amazon, waiting to be discovered by anyone who has the courage to venture into the wilderness.

Privacy in the 21st century… what do we mean by that, exactly?

OK, so the Court of Justice of the European Union has just given its judgement in the case of Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González.

The basis of this was that Mr González had his house repossessed several years ago, and – if anyone searches his name on the internet – a newspaper report regarding the repossession comes up among the results. Mr González found this embarrassing and embarked on the current case to put a stop to it via either:

a) Having the offending article removed from the newspaper’s archives or

b) Having Google not index that article under his name.

The ECJ has said that Google does function as a data controller, and thus can be approached to remove links to certain information about individuals on request.

On the face of it, that’s not a problem. Who doesn’t feel slightly comforted by thinking that all you have to do is write to Google and ask them to de-link a certain article, and that really embarrassing photo of you lying drunk in a gutter won’t be accessible to your prospective employer, searching on your name? (Actually, this is one of the advantages of having a really common name. If anyone searches on my name, they’ll get an awful lot of results – most of which are not about me, which is a pity because they’re all more interesting than I am.)

Of course, Google is supposed to ‘consider each request’ and weigh up the merits of the rights to privacy of the applicant versus the merits of the rights of freedom of expression of the person who published the data, and then come to a wise and considered decision that pinpoints the correct balance between the competing rights.

Hands up those who think that this is going to happen?

Hands up those who think that Google will either accept all such requests or reject them all? Or accept all the odd-numbered ones… or something. Anything other than employ a building full of people to sift through applications from celebrities caught doing things they shouldn’t have been doing, and drunken students, and so on.

And then someone will have the job of manually delinking the data, I should think. Now, that’s going to be the time-intensive part.

Or maybe they’ll just remove their presence in the EU, to avoid the expense and trouble. Relocate to somewhere else, and the whole problem goes away. Bit of bad luck for the people who work for Google in Spain, but you can’t make an omelette without breaking eggs.

Unsurprisingly, this case is already being discussed as a severe blow to freedom of speech. One can certainly see the point. In this case, González’ problem was related to the repossession of his house. To some extent, really, who cares? Only people who know who González is. It’s not on a subject of public interest, and if you want to read about house repossessions, you could probably still find the article – it isn’t to be cut off from internet searches entirely, only when González’ name is searched. So the newspaper’s freedom of expression is dealt only a small dent.

The situation is different, though, if you consider the misdeeds of celebrities. Many of them probably not only have things they’d like to see the internet forget, but also expensive lawyers. But the difference between Mr González and these celebrities is that their misdeeds might well be matters of public interest. And, not only that, but such articles will have those celebrities’ names as the major route of finding the article. So – unlike with the article about Mr González, whose name is probably only of interest to his friends and family – the articles about celebrities’ misdeeds having their links via the celebrities’ names removed will result in those articles being effectively unfindable.

This is censorship.

And it will probably have far-reaching effects on the internet and the free flow of information, as is already being remarked. Will Google (and other search engines) adopt a manual approach, and remove links only if requested? This, obviously, advantages those with the time, money, and expertise to be able to do this (celebrities, and their lawyers).

Or will they adopt an automatic approach and design an algorithm that just doesn’t find hits against names where the results are more than, say, five years old? It’s probably do-able, and would be disastrous for anyone who makes their living by their name but who doesn’t have guaranteed recent publicity – for example, small businesspeople.

However, there is another question. What do we mean, exactly, by “privacy”?

Back in the old days (before the internet) information was a lot harder to obtain, and also harder to disseminate. That embarrassing photo from the drunken weekend in Amsterdam would have been in a photo album (or in the bin), not on the internet where everybody with an internet connection could see it.

That political comment you made five years ago, that was really embarrassing in retrospect? Pre-internet, you’d have made it in the pub, where it would probably have been heard by five of your mates and forgotten by the following week. Post-internet, you make it on a discussion board where everybody (including your boss) can see it, forever.

Who should take responsibility for your free choice to act like an idiot in public? Is anyone else obliged to rescue you from the consequences of your own unwise actions?

I don’t think we can continue to apply nineteenth – or twentieth – century notions of privacy to a twenty-first century world. The internet – especially social media – provides opportunities for people to be embarrassingly idiotic in public on an epic scale. Trying to solve the “problem” by introducing a “right to be forgotten” (which is essentially a “right to rewrite history” by pretending events never happened) only introduces an awful lot of bureaucracy and expense, and will probably have a considerable adverse effect on the freedom of expression and the freedom of information.

What we need to do instead is recalibrate our sense of what “private” means. If you put it on the internet… then you’re stuck with it. Think before you post. If you are a celebrity, then the disadvantage of fame and fortune is that your misdeeds will be publicised far more efficiently than ever before. We also need to be less “precious” about ourselves – nobody is perfect, so why attempt to present the appearance of being so?

And, on the other side, a greater degree of charity is needed. So Mr González had his house sold to pay his debts the best part of twenty years ago… so what? Unless his finances are still in a mess, presumably he’s moved on. Why should it be held against him? So there’s a picture of someone, at the age of twenty, performing an unnatural act with a lamppost while under the influence of alcohol… well, they’re thirty now – should it be held against them? Is there anyone who has never in their lives done anything foolish, dangerous, embarrassing or self-destructive? And why should the people who had the luck to do it with no-one there to see and post it on the internet be the only ones to get away with it?

Greater regulation, and a harsher crackdown on freedom of information, is not the answer. An acknowledgement that we have to redefine what we mean by “private” and how we – as people – deal with information about other people, would be far more difficult, but more beneficial in the long-term.