One of the things about being a barrister is that you’re independently-minded, which means all the big Remain campaigns find me a mixed blessing. People’s Vote are trying to draw me in, so they said if I wrote something they’ll get it in one of the broadsheets tomorrow.
I am independently-minded but I do like to play nice with others where possible. So I stayed up until about 10pm putting something together. It’s going in The Independent.
Becoming a lawyer was happenstance. I was going to do politics and philosophy, and I happened to see something on the TV about a small firm where a partner had just run off with all the money and everyone was trying to hold it all together. It seemed like fun.
In that haphazard way of youth I called up Durham University and said: ‘Can I switch from politics and philosophy?’ and they offered me an interview. I hadn’t actually done any prep beyond watching this TV programme. I tried to cancel the interview because I imagined it being so humiliating. They said I may as well come in seeing as I had made the trip, so I went in and saw Francis Pritchard, who was then the admissions tutor. He said: ‘If you want to be a lawyer that’s fine with us.’ So I sort of became a lawyer despite my own best efforts.
I was 20 and I’d already written a play for Radio 4 and done a feature for Radio 3 but I had fairly mediocre secondary school grades. But if you’re a university and you see someone with potential and they’ve come from outside the run of candidates, you’re probably more willing to take a punt.
I’d like to say being a lawyer was born of idealism, but basically I thought it would mostly involve rowing with people for money. And certainly, for the type of lawyer I’ve become, it does involve a lot of rowing with people. It’s a profession that suits me well. I’m very interested in language. In addition to what I did with the BBC, I did a Masters thesis on Beckett, who is a great artist with the English language. There is scope for that in the law as well.
I go back every year or two to New Zealand. I have family there. It’s lovely. Paradise really. But it’s also an awfully long way away and quite small, and I can imagine it would feel parochial quite quickly. London is quite possibly the best city in the world.
‘I’d like to say being a lawyer was born of idealism but basically I thought it would mostly involve rowing with people for money.’
There are two strands of barristers: those who have a long family history at the Bar and so it is a natural place to go, and there’s another group for who the choice of the Bar is an attempt to work out a deep-rooted character flaw. I’m very much in the latter group.
I had a very turbulent childhood. I was kicked out of home at 16 so I was supporting myself while still at secondary school. Very difficult relationship with my parents, didn’t speak to them for north of a decade. To get through all of that and get out on the other side a reasonably functional human being requires a lot of personal support. There are a lot of people in my private life who helped me get through that. But I’ve also had an unshakeable conviction for my own rightness, which is immensely frustrating for anyone around me.
One mentor in the profession was the Belgian advocate general of the European Court of Justice, Walter Van Gerven, who taught me law at university. A lawyer of a different class. He looked at the law not so much as a technical exercise but as a multi-faceted blend of logic and common sense and political reality. He reopened my eyes to what the law should be. I carry his legacy with me now. The other was a UK academic, Professor Tamara Hervey, who’s now professor of European Union Law at Sheffield. She had the courage as a young academic to treat the law not as a neutral instrument, but as a tool through which one might achieve social change.
Before I started writing about tax policy about five or six years ago, I had a relatively comfortable career at the tax Bar. But I was pretty bored. Shortly before the 2015 General Election there was a lot of talk about me going into an Ed Miliband government, possibly as Attorney General. But they didn’t win, of course. Afterwards I revisited it with members of the Shadow Treasury team to see if I might become an MP with the Labour Party. But both of these things feel a long way behind me now. I’ve found a happy mix as a litigator of tax cases on one hand, then also the public policy work I find important.
War stories? As a young lawyer I got an interesting set of papers about someone who received a gift of around £750,000 from an elderly gentleman, who had since died. I was asked about the tax implications of that gift. I then got a call from the solicitor who sent me the papers who said ‘You need to know she’s a prostitute.’ That made it necessary, as a tax lawyer, to ask whether the money was a gift, or money paid for services. I spent a lot of time practising in the bathroom mirror asking that question of her, so as to do it with a straight face.
I once gave some interesting advice about whether or not your earnings as an assassin were subject to income tax. Bizarrely, one of the still-grey areas of tax law is the extent to which earnings from seriously unlawful activity are subject to tax.
I did pupillage at 11KBW, which then was then a very fashionable New Labour set. Lord Irvine was head of chambers, it was Tony Blair’s set, he met Cherie Booth there. There is a splendid story of Blair being a pupil to Lord Irvine. And in that way which will be familiar to all young lawyers, on the morning of court he was pointing at the White Book and jabbering at Lord Irvine, who, so the story goes, yanked the book from Blair’s hand and swiped him across the side of the head with it.
I devilled Lord Irvine’s last case at the Bar, and he told me if there was one thing that would stop me getting tenancy at his chambers it was my appalling set of manners. I did not get an offer.
I’ve made many good friends arguing cases against people. One of the reasons I came to Devereux Chambers was because it was headed by Ingrid Simler [now Lady Justice Simler] who I argued many cases against and became friends with. But I’ve also lost friends when I’ve argued cases against people I’ve already known. It’s completely a matter of personal chemistry.
It’s unnecessary and undesirable for litigation to become personal. As professionals I hope we can leave these points behind once we exit. The case I am on now, in the Court of Appeal, I had lunch with my opponent after the High Court appointment. I told him he shouldn’t have conceded a particular point.
‘The law permits people to behave in shitty ways and we still have moral choices as to whether to behave in that way.’
Jolyon Maugham QC, Devereux Chambers
Legality and morality are a difficult balance. People can choose to behave consistently with the law and still behave immorally, sometimes people can behave morally and inconsistent with the law. In truth the relationship between the two is more iterative. Judges, particularly in tax, very much are guided by their personal subjective sense of moral behaviour in the way in which they approach the exercise which should be a purely formalistic one. You might think I regard that as an entirely bad thing, I don’t. When law and morality become too far divorced from each other, the law begins to lose its authority.
In the tax sphere, when companies like Google or Amazon or Uber respond to the allegation: ‘Your behaviour is immoral’, with the response ‘We pay all the taxes that the law requires in all the jurisdictions we operate’, it’s important to understand what that answer doesn’t do. It doesn’t answer the allegations being made against them. The law permits people to behave in shitty ways and we still have moral choices as to whether or not to behave in that way.
I’ve written in The Times about a particular ethical problem which bugs me about lawyers: we often find ourselves drafting contract clauses we know to be unenforceable. When we do that in consumer contracts, we are essentially trying to deprive consumers of legal entitlements Parliament has given them. That’s profoundly unethical and I’ve been encouraging the Bar Standards Board to say so explicitly.
With Brexit, there’s a whole class of us in society who have lost all interest in reflecting on how we got here. There is no point trying to speak to those people, it is a waste of your time. But for those who are still interested in finding a sensible way for this country to go forward, I would say this: yesterday’s vote [the first ‘meaningful vote on the Government’s withdrawal agreement from the EU] is the inevitable consequence of the fact that the Leave campaign was built around making contradictory promises to different groups of people. Any crystallisation of Brexit immediately explodes because it hasn’t resolved those contradictions. That is undeniably true. Unless we reflect on what that means, there is no hope for us finding a process constructively to take Brexit forward.
A sensible Prime Minister would have embarked on a conversation before the 2016 vote about what sort of relationship we want with the EU. David Cameron did not take that opportunity, and neither has Theresa May. The clock is ticking loudly, but the opportunity has not yet gone. We can still stay the hands of the clock, we can revoke and reconsider, and if as a consequence of that national conversation we want to the leave the EU, then so be it.
I have been involved in each of the three Brexit challenges that succeeded [Article 50 case, Wightman case, judicial review of Electoral Commission]. The Wightman decision is, beyond doubt, the most important thing I will ever do in my life. It does hold out the prospect of changing the course the nation pursues. It would have been exceptionally difficult for us to remain in the EU without the Wightman decision.
I know how profoundly unhappy I would have been if I never took silk. I had no expectation that was in my future – only hope. As someone who has always battled against the establishment, you’re never confident that you’ll receive those sort of kitemarks of authority. You always imagine that the world will conspire to keep you outside a locked door. It was profoundly important for my long-term sense of personal happiness.
Twitter is a toxic sewer. A lawyer in bad faith suggested I was lying about something. That weekend I was accused of being a liar 1,000 times.
The timing was also good for me, just before the 2015 General Election. I was advising the Labour Party on tax policy. That authority made it very difficult for those who did not want to hear me.
Twitter is a toxic sewer, in truth. Recently there was a lawyer in bad faith, suggesting I was lying about something, with no proper basis. That weekend I was probably accused of being a liar about 1,000 times. It was all politically motivated, he was on the other side of the Brexit debate. Him and his Leave-supporting peers saw an opportunity to smear me. That’s quite a thing if you’re a lawyer. But I do like Twitter for being democratising. Someone who doesn’t have a platform can develop a voice which in some circles is very influential. I also like it because there are some exceptionally able people on Twitter: judges and leading lawyers.
It’s funny where the attacks come from [on social media]. It is remarkable to me, as someone who has advised the Labour party on tax policy, someone who is as profoundly left-wing as I consider myself to be, to be charged with being the head of a far-right think tank (as someone said recently.) There is a huge pool of aggressive left-wing Tweeps who hurl abuse in my direction for being ideologically unclean. And that is wearing but I am pathologically unbullyable. I don’t ever think I should just stop, because that would be to allow the wrong people to win.
I love spending time with my family. None of what I do in the political sphere would be possible, none of the personal resilience that it takes would I have if I didn’t have a strong marriage and three children I adore. When I’m not working I want to be hanging out with them.
When I came over from New Zealand at 17 I didn’t know how ignorant I was. That ignorance, and that courage which is its false corollary, is empowering. New Zealanders don’t know what they can’t do. I try very hard to be courageous in what I say, I try very hard not to feel the weight of authority pressing down on me.
I have supported Sunderland FC, for my sins, since about 1983. It’s always exciting supporting them, we’re usually relegated. We’ve been in the 3rd division before, and I think we’ll rise again. I wrote about Rangers FC a few years ago, and their bust-up with the tax authorities. I immediately got a sense of how absolutely central Rangers is to people’s understanding of themselves. How core it was to their identity. There are important lessons there for us metropolitan sophisticates, who craft a very individual identity. It makes it difficult to understand others who source their identity elsewhere, whether football, community, or an ideological alignment.
My Mantra? Do what makes you happy. We only have one life, and what a profound waste it is to spend it on something you don’t enjoy. Nothing else is as important as that.
Jolyon Maugham QC is a barrister at Devereux Chambers, a writer and campaigner on tax policy and public law