Harriet Harman’s Bullying and Harassment Review Will Harass Lawyers Everywhere

Last year, Lady Harman KC was asked by the barristers’ trade union, the Bar Council, to conduct an independent review of bullying and harassment at the Bar because, channelling Heinz Kiosk, “The Bar Council believes that bullying, harassment, including sexual harassment, is a problem at the Bar.”

Imagine if she’d rejected the BC’s beliefs: “Forget it, lads.  False alarm, let’s go and have a pint.”

But, unsurprisingly, her review finds that the BC’s condemnation of its members is catnip. And yet, the first words of substance in her review disclaim responsibility for the accuracy of the information contained therein:

DISCLAIMER: All reasonable efforts have been made to verify the accuracy of the information contained in this report. The Independent Review accepts no responsibility for reliance on its content. This report does not constitute legal advice.

This flim-flam underpinning her review causes her no difficulty, but purists may wonder how she knows what the BC has told her it believes. Sentence first, verdict afterwards. 

She even manages to complain that remand in custody pending criminal trial has been abolished, which will come as a big surprise to criminal practitioners. 

But, aside from her ignorance, what of her source material? The superannuated agitator tells us she will not endorse it, yet she spends many pages and footnotes talking about it.

The Bar comprises about 17,000 self-employed people across England and Wales. She invited those 17,000 to reply to a survey, which seeks no actual evidence. It is difficult to be sure, but perhaps fewer than 100 barristers replied. The disclosed material is notable for the following:

First, none of it is scrutinised and is mostly just opinion. Second, it is overwhelmingly anonymous. Third, it lacks any precision. Dates, times, names, places, who did what. Fourth, some of the referencing footnotes are defunct. One is to a puff piece in Counsel Magazine on the subject of, ahem, Lady Harman’s Review.

Of the 100-odd disclosed respondents to her survey, by my tally 16 are puff replies from institutions explaining how much they agree with the good work she is doing and 11 are from barristers saying that there is no problem with bullying or harassment (she ignores these contributors). The remainder are on-message, but there is an awful lot of repetition in their content: hierarchies, power imbalances, privilege, white men, public school. Almost as if there had been some coordination going on in the background.

Fifth, there is a significant amount of astroturfing and recycling of opinion as if by so doing quotes borrowed from people with whom Lady Harman agrees somehow prove her point.

Courtesy of one anonymous barrister complainant to Lady Harman we are told that:

In the past I have been offered references from judges in exchange for sexual favours.

How did these multiple judges achieve this miracle of indiscretion? The allegation is unscrutinised by Lady Harman. And you cannot help but notice that the traffic of supposed exploitation is all one-way – for instance, older barristers or judges exploiting the younger ones in return for sexual favours, but never the younger ones exploiting the older for a leg-up.

Nevertheless, Lady Harman says (without a reference footnote):

I received abundant, disturbing and compelling accounts of judicial bullying.

She dismisses judicial qualms about the accuracy of her source material with the response that scepticism about the quality of the source material cannot withstand the quantity of the source material. And besides, everyone knows that judicial bullying is a problem:

It may well be the case that some barristers mistake justifiable demands for high standards and ‘robust case management’ as bullying. But that cannot be a justification for refusing to acknowledge what is widely recognised everywhere, namely that there is a problem of judicial bullying of barristers. The sheer quantity and quality of accounts given to this review cannot reasonably be categorised as misunderstandings or mistakes of perception.

There is some material concerning criminal misconduct. One of the review’s anonymous sources refers to being sexually assaulted at work by a solicitor client. Sexual assault is an offence, but Baroness Harman’s correspondent did not want to take the matter to the police. Instead, she expected her colleagues to “take action”, no matter what the consequences, based on her say-so. Like Lady Harman, if the recommendations in her review are any guide, this woman speaks and others must jump.

(The same woman, in her account, complains of lay clients mistaking her for a secretary. I’ve been mistaken for a member of staff in Boots, and I wasn’t even wearing their uniform. What to do?)

One instance of proven misconduct given by Lady Harman, and which does amount to real evidence, concerns a certain Navjot Sidhu KC. The example is so good that she refers to it 34 times.

Then, here’s Lady Harman on the subject of a randy barrister. Note the great lady’s condescending primness:

I am aware of the case of Paul Kirtley, a fee-paid judge who had sex at court. …  In my view, the courts are a place for the administration of justice not for sexual activity. 

This incident was consensual and was with the man’s then girlfriend. But what has this to do with bullying and harassment? Next, will Lady Harman beguile us with her thoughts on the propriety of defecating in the street?

In like vein Lady Kirtley of Harman also seems to want to ban sexual relationships among consenting adults. Seriously. In fact, she seems to feel that there has been some forbearance on the part of the authorities which, if abandoned, amounts to a price worth paying to confront the scourge of bullying and harassment, for which she has negligible evidence:

At present, there is no regulatory prohibition on sexual relationships between mini-pupils/pupils and members of chambers or influential employees. I am aware of one or two sets of chambers who have incorporated a prohibition into their constitutions. This should be a mandatory requirement for all chambers.

It must be proscribed as serious misconduct in BSB regulations and chambers’ constitutions for a member of chambers or a chambers’ employee to have sexual relations with someone who is a mini-pupil, pupil or anyone undertaking any form of work experience in connection with that chambers.

Her review’s routine oppressed-oppressor polytechnic Marxism is as boring as it is sinister. So we get “structural power relationships” (oblivious to the fact that she, a Baroness, wants to control the sex lives of 17,000 people, and to force us to attend ideological struggle sessions – see below). And where would we be without the usual commitment to “ending the white, male, public school dominance of the profession”? Humanity’s perfection beckons.

It does so via nearly 40 recommendations in her review. Our regulator has already welcomed the review as a sign of – naturally – the cultural change (permanent revolution) still needed at the Bar.

One of those recommendations will require (with legal force) self-employed people – in this case barristers – to undergo anti-bullying training every three years. So, ideological struggle sessions requiring compliance with the totalitarian Party line. Other such mandatory training inevitably will follow, this being the Trojan horse. Everybody within the Big Tent, nobody outside the Big Tent, no one against the Big Tent. Via regulation, the slow-motion nationalisation of everything. Everyone in the private sector becomes an arm of the state, enforcing its priorities. 

That is the essence of my objection. If this passes, then we ought really to stop talking of the ‘private sector’. The Harman class’s view is one by which she, or someone very much like her, becomes our endlessly micromanaging boss. Not that we can ever please her.  You need only look at her review’s recommendations to see that. They have the quality familiar to anyone who has in recent decades dealt with ‘guidance’ or ‘codes of conduct’, that the author always has you coming and going, setting you against the next person. Take this example:

Recommendation 13: The duty to report serious misconduct should be triggered upon reasonable suspicion and the sanction for failure to report should be strong.

Good grief, what a wretched place this country now is. We have to be threatened to dob each other in. Or what about this for a masterclass in Harman-class power without responsibility:

Prevention policies must be in place in all chambers and Inns, and circuits to protect students, mini-pupils, pupils and those undertaking any form of work experience.

It is odd. Harriet Harman wants us all to play nice, and yet the tone of her review is pious, hectoring, power-mad, hostile to due process, intellectually shallow, bigoted and relentless in its totalitarian urge to control. At one point, she notes with approval people losing their jobs for not undergoing EDI training.

The Equality, Diversity and Inclusivity (EDI) Sub-Committee is one of the [Inner Temple]’s standing committees and the Chair also sits ex-officio on the Inn’s Executive Committee. Its mandate includes making proposals to develop a culture of EDI within the Inn. It has overseen the updating of the Inn’s EDI training course. A few years ago this was made mandatory for all members who deliver education and training, members of all the Inn’s committees and Masters of Activity (who supervise areas of the Inn’s business), and for newly appointed Governing Benchers. This requirement has been strictly enforced and individuals who after several warnings have failed to complete the training have been stood down.

Quite aside from her indifference to the human misery involved, she approves of purges of people who disagree with her.

She should be in therapy, not exorcising her demons by lecturing the rest of us:

I dedicate this report to my mother. … Though she was called to the Bar, she was not able to practise because she married my father and had four children. … The women who are now KCs, sit as judges and have even achieved the highest Judicial Office… are pioneers whose progress my mother would have loved to see.

Although Lady Harman recognises that such dedications are unusual (inappropriate?) in a review like hers, since she has included it, I will conclude by saying that I think it proves her motives in drafting her review are political and ideological. Her mother’s apparent lack of agency is something for which Lady Harman is determined to overcompensate, even if by way of flim-flam. To the extent that she purports to be bear witness to problems of bullying and harassment at the Bar, she is not credible except as an agent of them. From its first, dismal few paragraphs, through its dubious ‘evidence’, via its disgusting identity politics, this is not a good faith document. The Harman class should get help, and leave the rest of us alone.

Stephen Willmer, a barrister, is a practising member of the Bar of England and Wales.