Steven Barrett is a barrister with a wide commercial practice and a member of Radcliffe Chambers. He is also well known to the public because he is a prolific writer of articles and tweets about a variety of legal matters. We at Lawbore wanted to ask him about his motivation for going above and beyond the day-job, how he avoids getting burnt when wading into politically hot topics, and what advice he’d give to students reading his articles or this interview.
You write for The Spectator amongst other publications; what drives you to write comment pieces on top of the day job?
I don’t think I write comment pieces, I write on law. I write outside The Spectator on law, not that people always notice – I reach a much bigger audience in The Spectator. My motivation is a bit obscure. I mentor for a number of social mobility charities and I help run one. If you come from a non-legal background I think one of the biggest hurdles is to be asked ‘why do you want to study law?’. So I write in the hope young people will read them (you can read a fixed number free every month) and be interested in law.
My mentees read them and they are the people I am most proud of.
Who is your audience and how do you tailor your writing to them?
I think Spectator readers are intelligent and pretty open minded people – that gives me a lot of freedom to just write what I like. The only tailoring I do is to try to make sure at least one joke survives the edit and to get my hyperlinks to the legal sources in the text.
To the young person who doesn’t know any law, I hope those hyperlinks are useful and can be part of them learning a bit about it. I will link to primary sources and academic articles.
What limits do you or others impose on what you can write about?
I have no real limits – saving my vanity and the fact I want to be read. I write on topics that are sometimes politically sensitive which was hard initially. If people are very passionate about something in politics, there is a temptation to think I am taking the contra view. But over time more people can see I am just pointing out/explaining the law. I leave it up to readers to take away what they want as their political view. This has worked in an amusing way with the EU Rule of Law Crisis (although we didn’t know that was what it was when it began). I got attacked for being a pro-EU person, then attacked for being anti-, then attacked for being pro-, eventually people seem to have worked it out.
There is, sadly, too much ‘fake law’ out there. Where people try to make an incorrect statement on law to further a political argument. I’m just trying to stop that really – but it doesn’t impact that argument in any way. Law simply can’t tell you what to think politically – and I was very honoured to be in the Times backed up by some very eminent academics to say that.
Does the exercise of writing articles and tweets improve your skill as an advocate, and if so how?
I feel both improve my written advocacy. To watch something like the 2,500 words I used to send in, become around 700 was shocking at first. Now I find the limit helps me (I’m also a fan of fitting everything I want to say in to a single tweet when I can). I now need less editing and I think as a result my written submissions – which are a large part of our advocacy, have improved. I do speculate what my editors could achieve if they got their hands on judgments!
I think my oral advocacy was always like that and that I put more effort in, as a young man, to getting that right. I probably lacked the self confidence to be succinct when writing.
You are a commercial Chancery barrister. Why are most of your articles about public and constitutional law?
I am proud to have written several ‘number one most read’ articles on contract law – as a result of the vaccine spat with the EU. But ultimately I have to write in The Spectator on what people will read. Public/EU law I had to pick up again. Although with post-Brexit law everyone was starting from the same place and the fact I read the treaty (TCA) and have a good memory, means that is now relatively easy.
Constitutional law was always a favourite subject but one I couldn’t earn a living from as a barrister – no one can. One of the best things about our constitution is how settled it is. Other jurisdictions do endlessly litigate their constitution. But we don’t and I think it is no coincidence that English (and Welsh) Commercial Law is thus a world leading industry providing many of us with jobs. I am also closer to legal academia than certainly was traditional at the Bar when I joined.
The subject I find least interesting as law, is criminal law – although it is popular with the public so I may even have trespassed there.
I try to write on Commercial Law as much as I can – I make no attempt to hide the fact I am extremely proud of our Commercial Law. But very sadly a Christmas piece that explained how Santa was a Trust was deemed too hard for readers to follow.
Do you think it is a good thing that barristers are now allowed to have articles published under their own name and stating their profession? And how would you have coped under the old regime when they could not?
No. I have a rule I don’t do politics in my articles or on Twitter – but that doesn’t include this interview, so I feel able to say I preferred the old days. But they are gone and despite me ignoring Twitter for 10 years it did not go away.
So what I do instead is have my own rule of no politics – and I define that as calling for any change in the law or advocating any cause (as well as something obvious like overt party support). I fail my own rule on two subjects – LGBT inclusion and Social Mobility. I am aware I fail it and I wonder if people do grasp just how much effort I put in to worrying if a statement or word is ‘doing politics’.
I also take my professional obligations very seriously. There is BSB guidance which I often re-read. I want to show the public barristers in a way that I can be proud of – ultimately I believe in the profession and I want my mentees to be proud of me and to see a good example.
What is the response of your colleagues and learned friends in the legal profession to your writings? Thinking especially of some of your more assertive pieces, such as one in The Spectator questioning whether the ECJ would be recognised as a ‘proper court’ by the Court of Human Rights?
The ECJ failing an Article 6 ECHR test was a challenging one for me. I would have preferred to wait until the ECtHR had said so. But unfortunately the EU does not subscribe so the ECJ can’t be referred. What I instead did was rely on the detailed analysis of two publicly pro-EU legal academics. The contra argument was never really there – most people who politically support the ECJ say the Treaty requires it to be political – unfortunately that fundamentally limits it as a court. There is much more discussion on this outside the UK – which is fascinating, but has meant I’ve got to know lots of non-UK lawyers I didn’t know before.
Colleagues/clients are supportive which is kind. One praised me by saying they liked my articles because I didn’t try to tell them how to think about the thing. I try to focus on that and I wonder if it is just easier for a Commercial Barrister to do that. I am not in the business of telling my clients – large companies, HNW individuals, what to think. I tell them what the law says and then they decide what to do.
People can, I suspect, also see that I am genuinely passionate about law – and that I am trying to help the public and young people in particular, engage with it. Law is fascinating.
Do you have any legal heroes in whose mould you see yourself?
My hero is Lord Millett. He is, in a crowded field, our best ever judge. He is also probably the only person who is as interested in Quistclose Trusts as I am.
I don’t know about moulds, but my motto is ‘I was only trying to help’. This role I do, of wading in to politically contentious areas and just making sure people get the law right (and then leaving without telling people how to think) – I think it is a very important role. If I got hit by a bus, I would want others to do it. We must not slip in to being a binary or tribal society – there must always be a neutral voice.
What advice would you give to me, a writer for Lawbore, on choosing topics to write about and approaching them?
You have to write about what the public are interested in and ideally ASAP. I have a very quick turnaround time if I decide to write on something. Given my focus is just the law, I have to wait and see if there is enough interest in the legal aspect of it. The only one where I didn’t do that was the EU Rule of Law Crisis, there I felt people were (still are sometimes) missing what is going on. But if you are bound to obey a court and you say ‘I’m not bound’ then that is extremely important as law and really is all the Rule of Law is – if people just ignore courts then we’ve sort of lost.
What advice would you give to law students reading this interview who might be struggling to decide which area of law interests them most?
Try lots of different areas. I have always felt a very strong interest in the implied trusts and in Equity in general, in contract, in negligence and the more weird torts and in personal property law – and in constitutional. Eventually all of those served me well in one way or another. So if you read any of my articles make sure you click on those hyperlinks, engage with the primary material yourself and think how you would critique it. You’ll soon get a picture of which sorts of cases most interest you.
As a student I thought I hated statute, but I think what I actually disliked was the LPA and the LRA. When, for work, I started on FSMA – I finally found a statute that my brain naturally followed.
The other thing I am open about with mentees is that I grew up not having very much money. There is absolutely nothing wrong with wanting a job because it will provide you with a good life.
Matthew Pugh carried out this interview with Steven. Matthew is a member of this year’s Lawbore journalist team and is studying for a GDL at City Law School with the intention of going to the Bar. Before coming to City he read Classics and was editor of the Oxford Bar Society’s magazine, The Pupil.