Monthly Archives: Mar 2022

Split decision in Mozambique gas project challenge

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Back in October last year, I wrote a piece arguing that the UK legal system is ill-equipped to deal with the climate crisis. Citing a number of high-profile legal challenges to carbon-intensive infrastructure projects which have been dismissed over the last few years, I argued that the wide margin of appreciation enjoyed by decision-makers when it comes to translating the UK’s legally binding emissions-reduction targets into actual policy and the reluctance of judges to be seen to be making politicised decisions meant that such challenges are likely to keep failing. Since then, two interesting judgments have been handed down in cases concerning decisions to approve new fossil fuel developments, which have caused me to revisit some of the assertions I made in my previous post on the subject to see whether they still hold true.

First there was the judgment in R (on the application of Finch) v Surrey County Council [2022] EWCA Civ 187. Here, a majority of the Court of Appeal upheld the decision of Holgate J that Surrey County Council’s approval of a new oil well at Horse Hill was lawful, but disagreed that downstream greenhouse gas (GHG) emissions are “legally incapable” of being factored in as an indirect effect of a project for the purposes of its Environmental Impact Assessment (EIA). The court held instead that such emissions should be included where there is a sufficiently close connection between the proposed project and its putative effect, with the existence of such a connection being decided on a case-by-case basis [41, 141]. The majority found that the necessary causal connection was absent in the present case [85]. However, Moylan LJ held that there was a close connection and the decision to exclude end-use emissions from the EIA was therefore legally flawed. In his own words, “it is not difficult to describe the combustion of material obtained from a development whose sole purpose is to obtain that material for combustion as being an environmental effect of the development” [138].

Then, on 15 March last week, there was another split decision in the High Court over the legality of the UK government’s approval of $1.15bn of export credit finance for a huge liquified natural gas (LNG) project in Mozambique. So, why could Lord Justice Stuart-Smith, who normally sits in the Court of Appeal, and Mrs Justice Thornton not agree? What happens in the event of a 1–1 split decision of this kind? And what (if anything) might R (Friends of the Earth Ltd) v Secretary of State for International Trade / Export Credits Guarantee Department & Chancellor of the Exchequer [2022] EWHC 568 (Admin) mean for the future of UK climate litigation?

The proposed site for the LNG project is in northern Mozambique, in the offshore Rovuma Basin. It is anticipated that around 5% of the LNG extracted would be retained for domestic use in Mozambique, with the remaining 95% being exported. The challenge to the project, brought by Friends of the Earth (FoE), was really a challenge to three separate decisions.

  1. First, there was the decision on 10 June 2020 by the CEO of UK Export Finance (UKEF) — the government’s export credit agency, which works alongside the Department for International Trade to help UK exporters to find new markets through loans, guarantees and insurance — to provide $1.15bn in financial support for the project, which was supported by the Secretary of State for International Trade.
  1. Second, there was the approval of this investment by the Chancellor of the Exchequer on 12 June 2020.
  1. Third and finally, there was the decision of 30 June 2020 by the Accounting Officer and Chief Executive of UKEF to approve the underwriting minute and the decision of 1 July 2020 of the Chief Executive of UKEF to approve the clearance of documents memorandum.

However, for the sake of ease, I will group these stages together and refer to them jointly as ‘the decision’. The decision was controversial within government at the time, with support from then Secretary of State for International Trade, Liz Truss, but concerns or outright opposition expressed by Business Secretary Alok Sharma, Foreign Secretary Dominic Raab and International Development Secretary Anne-Marie Trevelyan. In particular, ministers opposed to the project cited the reputational risks it posed in the context of the UK’s hosting of COP 26 the following year. Stuart-Smith LJ recognised the controversies surrounding the project in his judgment but was at pains to stress at several points that the role of the courts in cases of judicial review is not to comment on the merits of a decision but only on its legality [6, 49, 95].

FoE challenged the decision on two, closely related grounds.

  1. Ground 1(a): the decision was based on an error of law or fact, namely that the Project and its funding was compatible with the United Kingdom’s commitments under the Paris Climate Change Agreement (“the Paris Agreement”) and/or assisted Mozambique to achieve its commitments under the Paris Agreement; and/or
  1. Ground 1(b): UKEF’s decision was otherwise unlawful in so far as it was reached without regard to essential relevant considerations in reaching the view that funding the Project aligned with the UK and Mozambique’s obligations under the Paris Agreement.

In ruling on each of these grounds, the Court was concerned with three main questions, summarised by Stuart-Smith LJ at [96]:

First, what is the appropriate scope of enquiry when a decision maker decides to take something into account in the course of the decision-making process? Second, should the Court entertain submissions and decide questions of interpretation of the Paris Agreement? Third, and related to the second, is the Foreign Act of State doctrine relevant or applicable to the facts of this case?

The scope of enquiry

All public bodies are under a Tameside duty to carry out a sufficient enquiry prior to making a decision, so that they are in possession of all the necessary information required to make it. The name is derived from Lord Diplock’s judgment in Secretary of State for Education and Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 at 696, [1977] AC 1014, where he held that the question for a court is: “did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?” [1065].

However, subsequent case law has tended to view the question of what considerations should be taken into account and what information should be sought as being a matter for the decision-maker and largely context-specific, subject to the irrationality test and any statutory requirements. Citing the judgment of the High Court in R (Spurrier) v Transport Secretary [2019] EWHC 1070 (Admin), [2020] PTSR 240 [141] ff., concerning the appropriate standard of review where the Tameside duty is engaged, Stuart-Smith LJ also noted that, where the decision under challenge depends “essentially on political judgment” or involves “scientific, technical and predictive assessments” the decision-maker should be granted a wider margin of appreciation in relation to the inclusion or non-inclusion in the decision-making process of information on a particular subject [100]. Thornton J also recognised that in the context of a complex, scientific, predictive evaluation of the kind required when conducting an EIA for this kind of project, decision-makers must enjoy a wide margin of appreciation, and cited a number of other climate change cases where this principle had been stressed [271, 277]. Yet the two judges took very different views on whether UKEF had discharged its duty of enquiry, particularly as regards the calculation of Scope 3 emissions.

GHG emissions tend to be divided into three categories for the purposes of conducting environmental/climate impact assessments. The direct emissions associated with an activity or project fall within Scope 1. In this case that is the emissions associated with the extraction of LNG. In the Horse Hill oil well case it was the emissions associated with the construction of the well and associated buildings. Scope 2 emissions include the indirect emissions from the generation of purchased electricity in order to undertake the activity. Scope 3 are all indirect emissions not included in Scope 2, including the end-use of products produced by the activity.

In relation to the Mozambique LNG project, UKEF produced a climate change assessment report which posed the question: “what are the estimated Scope 3 GHG emissions of this project?”. However, the report ultimately declined to make an estimate on the basis that it would be “inaccurate and therefore likely to be misleading”. An associated environmental/human rights report stated that Scope 3 emissions could not be reported “due to considerable uncertainty in the measurement and reporting of these data”, which “could not be resolved without further analysis or due diligence” [301].

The question for the Court in the present case, therefore, was whether this failure to take Scope 3 emissions into consideration was unreasonable. Stuart-Smith LJ held that it was not. He considered that UKEF enjoyed a wide margin of appreciation over how it conducted its assessment of the climate change impacts of the proposed project in the present case, since “at the time there was no established or internationally recognised methodology for evaluating the climate change impacts of a project like the one under scrutiny” [103], and further held that quantification would not have added anything material to the qualitative assumptions made for the purpose of assessing compliance with the Paris Agreement [234].

By contrast, Thornton J noted that the UKEF climate report set itself the task of producing an impact assessment which would “fully acknowledge”, “fully consider” and “evidence” the climate change risks associated with the project so that they could be coherently presented to ministers but ultimately failed to deliver a proper assessment of those risks [332]. She pointed out that UKEF had neglected to estimate Scope 3 emissions, even though there did in fact exist a suitable methodology, in the form of the GHG Protocol used by many private-sector companies and endorsed by the House of Commons Environmental Audit Committee [304].

Scope 3 emissions for the project were eventually calculated by the Department for Business, Energy and Industrial Strategy (BEIS) after the Prime Minister requested advice on whether they could be offset. This calculation took just 24 hours and was completed on 30 June 2020, shortly before final approval for the project was given. The BEIS calculations indicated that the LNG extracted from the site would produce some 805 million tons of CO2 over the 25-year lifetime of the project, constituting no less than 0.2% of world’s entire remaining carbon budget if we are to stay within 1.5oC of warming. Yet the UKEF climate report was never amended to reflect this updated calculation [322–324].

Other flaws in the UKEF climate report were touched upon briefly, in particular its inconsistent assessments concerning the extent to which the Scope 3 emissions from the project would be offset by a reduction in the use of more polluting fuels. While the summary section suggests it is more likely than not that the project would lead to a net reduction in global emissions, the conclusion indicates that it may lead to such a reduction, and a passage quoting analysis by the US export credit agency, US EXIM, states that it is unlikely that the project would replace more polluting fuels and suggests that it might instead hamper the growth of renewables. These differing positions could lead to very different outcomes in relation to the UK’s ability to meet its obligations under the Paris Agreement [310–316].

In light of these ambiguities, and the failure to amend the report with the updated Scope 3 emissions calculation and send it back to ministers for reconsideration, Thornton J concluded that UKEF “failed to make reasonable and legally adequate enquiries in relation to a key consideration in the decision making (climate risks). The lack of information deprived Ministers of a legally adequate understanding of the scale of the emissions impact from the Project” [333].

The interpretation of the Paris Agreement

It is worth noting at this stage that the UK’s international commitments under the Paris Agreement have no automatic force in domestic law, but that the UK has adopted a legally-binding obligation under s.1(1) of the Climate Change Act 2008 to reach net zero emissions by 2050 and an obligation on the Secretary of State to set regular carbon budgets (s.4, CCA 2008). This means that decisions can be challenged in domestic courts on the basis of their failure to comply with these domestic climate obligations, although the Act is not prescriptive about the actions that ministers or officials must take to achieve net zero. However, as the parties in the present case agreed, compatibility with the provisions of unincorporated treaties can also be justiciable in certain circumstances.

Drawing together principles from a range of authorities, Stuart-Smith LJ held that, while there was no general rule that a national court shall never determine a question of interpretation of an unincorporated international treaty, it should adopt a lower intensity of review where the language of the treaty is broad and aspirational [119]. In such circumstances, the domestic court need only satisfy itself that the decision-maker’s interpretation of the relevant treaty provisions is “tenable”, rather than necessarily correct. Thornton J concurred that the correct test in the present circumstances was that of “tenability” [262] but the judges disagreed on whether the decision under challenge satisfied that test.

Stuart-Smith LJ held that “UKEF was entitled to form the view that the support for the Project that was in contemplation was in accordance with its obligations under the Paris Agreement as properly understood. That view was at least tenable” [240], while Thornton J concluded that “the failure to quantify the Scope 3 emissions, and the other flaws in the Climate Report mean that there was no rational basis by which to demonstrate that funding for the Project is consistent with Article 2(1)(c) of the Paris Agreement on Climate Change and a pathway to low greenhouse gas emissions” [335].

Foreign Act of State doctrine

There was no disagreement on the third question, regarding the applicability of the Foreign Act of State doctrine. The Defendants submitted that the portion of Ground 1(a) concerning Mozambique’s commitments under the Paris Agreement was not justiciable, since it is not, as a matter of judicial policy, for the courts of this country to determine the legality of acts of a foreign government in the conduct of foreign affairs. After considering a range of case law on the doctrine, Stuart-Smith LJ held that, while the involvement of foreign state does not automatically preclude domestic courts from ruling on issues of foreign law, provided that there is a relevant “foothold” in domestic law in relation to the issue [130], it was not for a UK court to pronounce on whether the development of the LNG project would cause Mozambique to breach its own obligations under the Paris Agreement [232].

Where next?

So, what happens next? The split decision means that the judicial review did not succeed. However, the day after handing down its judgment, the High Court took the unusual step of issuing an order giving Friends of the Earth permission to appeal. Provided that FoE chooses to proceed, therefore, the Court of Appeal will settle the issue. Given the differing approaches taken by the judges in the lower court to Scope 3 emissions, it will be interesting to see how the judgment of the Court of Appeal in the present case interacts with its decision in Finch v Surrey County Council. Having declined to provide specific examples in that case of circumstances in which the connection between a proposed project and a putative effect might be sufficiently close to justify taking Scope 3 emissions into account when carrying out an EIA, the Court will now be forced to decide whether the connection between the planned project and the end-use emissions in the present case is so close as to make a decision to exclude them unreasonable.

The bar for success for such challenges is extremely high and the weight of recent case law is firmly against the Appellant. It would be foolish to try to predict the outcome of the appeal but, for all the reasons set out in my piece last October, one cannot help but suspect that it will be dismissed. However, given the manifest flaws in the UKEF climate change report and the scale of the GHG emissions that the project would produce, if ever there was a case to test the theory that the UK courts will never overturn a government decision on climate change grounds, this could be it.

What I’ve been up to this week

It is exam season on the Bar course, so much of my time has been taken up with preparing for assessments. But last Wednesday I took an evening off to go and see Ralph Fiennes in David Hare’s new play at the Bridge Theatre. In ‘Straight Line Crazy’, Fiennes plays Robert Moses, the hugely influential and controversial urban planner and master builder, whose decades-long career shaped much of the modern look and layout of the New York metropolitan area. After a slow start, the play worked its way up to a pretty devastating second act, and addressed many mid-twentieth-century arguments — about road-building, gentrification, access to the open space, and structural racism in planning — which are still awfully topical today.

The Supreme Court giveth, and the Supreme Court taketh away: How to terminate a fixed-term tenancy

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At the start of a bumpy road, there is a checkpoint. At the checkpoint, there is a sign, which reads: IF YOU HAVE A VEHICLE, YOU CAN PASS. Does this mean that you have to use your vehicle to pass the checkpoint? Or do you only have to bring the vehicle with you to the checkpoint, and then you can pass on foot? Or is not even that required, and you only need to own a vehicle, wherever it is, in order to pass?

This is my extremely clumsy attempt to analogise the questions that were before the United Kingdom Supreme Court in Croydon London Borough Council v Kalonga [2022] UKSC 7. This case was not about road use, but about the circumstances and ways in which a public-sector landlord can terminate a fixed-term secure tenancy before its natural conclusion. Given the number of fixed-term secure tenancies granted by local authorities in England, and in particular the popularity since its introduction in 2012 of a kind of fixed-term tenancy called a flexible tenancy, it is surprising that this issue was uncertain. But now that, as of last week, the Supreme Court has had its say, the position is settled, and if it is not crystal-clear, that is all the more reason for us to take a moment to wrap our heads around it. I have tried to make this post accessible to those with no knowledge of social housing law, so I hope that specialists will forgive any over-explanation or over-simplification and skip over those parts.

The case in the Supreme Court was the second appeal against the decision of the High Court on a preliminary issue. This means that the legal arguments were made on the basis of assumed facts, before a proper trial. The detailed facts or assumed facts of the case are not material but the procedural history is as follows. Ms Kalonga had a five-year flexible tenancy with Croydon Borough Council. Two years into the tenancy, Croydon served a notice on Ms Kalonga seeking to terminate the tenancy and to recover possession of the property. Croydon relied on grounds 1 and 2 of Schedule 2 to the Housing Act 1985, which are rent arrears and anti-social behaviour respectively. Later in the proceedings, Croydon emphasised that it did not rely on forfeiture. Ms Kalonga challenged the possession claim on the basis that the only way in which a flexible tenancy can be terminated early is by way of a forfeiture clause included in the tenancy agreement. A preliminary issue was identified: “How does a landlord under a secure flexible tenancy obtain possession during the fixed term?”. The County Court transferred the trial of this issue to the High Court. The High Court’s decision was appealed to the Court of Appeal and from there to the Supreme Court. There was a second issue, namely whether Ms Kalonga’s tenancy agreement did in fact contain a forfeiture clause. For the sake of focussing on the broader issue, I am not going to discuss this here.

The disagreement is rooted in section 82 of the Housing Act 1985. This section provides for the termination of a fixed-term tenancy such as a flexible tenancy (a “tenancy for a term certain”, in the language of the Act). Any tenancy is primarily a contractual relationship between a landlord and a tenant, giving rise to contractual and proprietary rights as specified in the written agreement. The Housing Acts add to this legal position in the cases of certain kinds of tenancies, usually those granted by public-sector landlords. One important way in which they do this is by providing for security of tenure by specifying the ways in which a tenancy can be brought to an end beyond what is generally possible using a tenancy agreement. This is what section 82 does. The full wording of section 82 is as follows:

82 Security of tenure.

(1) A secure tenancy which is either—
(a) a weekly or other periodic tenancy, or
(b) a tenancy for a term certain but subject to termination by the landlord,
cannot be brought to an end by the landlord except as mentioned in subsection (1A).

(1A) The tenancy may be brought to an end by the landlord—
(a) obtaining—
(i) an order of the court for the possession of the dwelling-house, and
(ii) the execution of the order,
(b) obtaining an order under subsection (3), or
(c) obtaining a demotion order under section 82A.

(2) In the case mentioned in subsection (1A)(a), the tenancy ends when the order is executed.

(3) Where a secure tenancy is a tenancy for a term certain but with a provision for re-entry or forfeiture, the court shall not order possession of the dwelling-house in pursuance of that provision, but in a case where the court would have made such an order it shall instead make an order terminating the tenancy on a date specified in the order and section 86 (periodic tenancy arising on termination of fixed term) shall apply.

(4) Section 146 of the Law of Property Act 1925 (restriction on and relief against forfeiture), except subsection (4) (vesting in under-lessee), and any other enactment or rule of law relating to forfeiture, shall apply in relation to proceedings for an order under subsection (3) of this section as if they were proceedings to enforce a right of re-entry or forfeiture.

This section is not very easy to understand, which is why it took so much litigation to establish what it means. An important distinction to be borne in mind when tackling the section is between the three remedies under subsections (1A)(a), (1A)(b) and (1A)(c). These are the three different ways in which a secure tenancy can be brought to an end.

Subsection (1A)(a) provides for a possession order. This is a procedurally relatively straightforward remedy, which requires the landlord to show that one of the grounds for possession listed in Schedule 2 to the 1985 Act is made out (for example, rent arrears), and, sometimes, that it is reasonable for the court to make a possession order.

Subsection (1A)(b), which refers to subsection (3) provides for cases in which there is a forfeiture clause in the tenancy agreement. A forfeiture clause is basically a written clause that provides for the tenancy to be terminated early if the tenant breaches a term of the agreement. If a landlord seeks to rely on a forfeiture clause to terminate the tenancy because a tenant has breached an obligation under the tenancy, the tenant will have the opportunity to ask the court to grant relief from forfeiture, and not terminate the tenancy. The court will usually do so if the tenant can remedy their breach and undertakes to abide by the terms of the tenancy from then on. Subsection (3) explains that, if the court reaches the end of this process and would ordinarily make a forfeiture order, it will make a different kind of order effectively replacing the fixed-term tenancy with a periodic tenancy.

Subsection (1A)(c) refers to a demotion order, which can be made in cases of anti-social behaviour or unlawful use of the property. A demotion order does not terminate the tenancy, but reduces the tenant’s security of tenure for a period of a year or more, making it much easier for the landlord to recover possession at any time during that period.

The main takeaway is that, for landlords wishing to terminate a tenancy, the subsection (1A)(a) route, leading to a possession order, is generally preferable to the subsection (1A)(b) route, leading to an order in lieu of forfeiture, because the subsection (1A)(a) route is much more likely to lead to the timely vacation of the property by the tenant.  

With this in mind, we can contemplate the first major question in section 82: subsection (1)(b). What is “a tenancy for a term certain but subject to termination by the landlord”? A tenancy for a term certain is a fixed-term tenancy. But is a tenancy only “subject to termination by the landlord” when there is a forfeiture clause in the tenancy, which can provide a route to termination? Or is a tenancy “subject to termination by the landlord” if there is any way in which a landlord can bring it to an end, such as a break clause or an applicable Schedule 2 ground?

Zooming out to view the whole section, including subsection (3), a second question occurs to us. If a tenancy is “subject to termination by the landlord” when there is a forfeiture clause in the tenancy, can it only be terminated by using that clause to obtain an order in lieu of forfeiture? Or, if there is a forfeiture clause, meaning that the tenancy is “subject to termination by the landlord”, can the landlord simply pursue a possession claim?

These questions have high stakes. On the one hand, if a fixed-term tenancy can only be terminated by the landlord by relying on a forfeiture clause in the tenancy agreement, tenants’ security of tenure would be excellent and landlords’ flexibility small, because, first, not all tenancy agreements contain a forfeiture clause, and, second, the forfeiture process is more tenant-friendly than the possession claim process. On the other hand, if a fixed-term tenancy can be terminated by the landlord using the possession claim process as long as there is any provision in the tenancy agreement for early termination, such as a break clause, tenants’ security of tenure would be limited and landlords’ flexibility excellent, since possession could, in appropriate circumstances, be sought on the basis of a no-fault ground in Schedule 2, such as intention to redevelop the property.

What did the courts make of these questions? The judge in the High Court, Tipples J, decided the first question in favour of Ms Kalonga and the second in favour of Croydon ([2020] EWHC 1353 (QB); [2020] 1 WLR 4809). A fixed-term tenancy could only be terminated early if it contained a forfeiture clause: that was what “subject to termination by the landlord” meant. But, if it contained such a clause, the landlord did not need to use it to terminate the tenancy, but could choose to pursue a possession claim. On Croydon’s appeal, the Court of Appeal affirmed Tipples J’s decision on the first question but disagreed on the second question ([2021] EWCA Civ 77; [2021] 2 WLR 1069). For Arnold LJ, with whom King and Asplin LJJ agreed, not only did there need to be a forfeiture clause in the tenancy agreement for a tenancy to be “subject to termination by the landlord”, but the landlord was also obliged to rely on this clause if it sought to terminate the tenancy. In other words, the Court of Appeal held that a fixed-term tenancy could only ever be brought to an end by an order in lieu of forfeiture, and that the regular possession claim process was never an option.

Croydon appealed again to the Supreme Court. Writing for the court, Lord Briggs considered that both of the cases presented by the parties were too extreme. On Croydon’s case, a model tenant would have their contractual and proprietary rights severely diminished by the Housing Act 1985, because possession could be sought in circumstances not contemplated in the tenancy agreement. On Ms Kalonga’s case, what appeared to be menu of options for landlords provided by subsection (1A) was ignored, and fixed-term tenancies could only be terminated by an order in lieu of forfeiture, which did not appear to be a natural meaning of the provisions.

Lord Briggs found what he considered to be the way between Scylla and Charybdis by paying close attention to the statutory language and by being guided by the central purpose of the Housing Acts 1980 and 1985. In his view, this was to add to, and not take away from, tenants’ contractual security of tenure. The words “cannot be brought to an end by the landlord except” in subsection (1) did not add any means of termination, but limit the means of termination from among those already available to the landlord. And when is a means of termination available to the landlord? A tenancy is only “subject to termination by the landlord” when a provision such as a break clause or a forfeiture clause is exercisable, that is, when the tenancy has obtained for the length of time required before a break clause can be used, or when the tenant falls foul of a forfeiture clause by breaching the tenancy agreement. It is not enough for such a clause to be in the tenancy agreement. The conditions must be such that landlord has the right to use it. 

The upshot of this is that, if a tenancy agreement contains a provision for early termination based on anything other than the fault of the tenant, the landlord may rely on that provision to apply for a standard possession order. If the only provision for early termination is a forfeiture clause, requiring the fault of the tenant, the landlord will have to obtain an order in lieu of forfeiture in order to recover possession, giving the tenant the opportunity to apply for relief from forfeiture. If there is no provision at all for early termination, the tenancy cannot be terminated before the end of the term.  

When the Supreme Court’s judgment was handed down last week, this issue had long since ceased to be material to Ms Kalonga’s situation. Her five-year flexible tenancy had expired and she continued to reside at the property under a follow-on periodic tenancy. But this judgment will help local authority landlords and tenants across England. Landlords can have confidence, based on the terms of their tenancy agreements, in which fixed-term secure tenancies are capable of being terminated early for property management purposes and can, for example, plan redevelopments accordingly. Tenants can rely on the terms of their agreements without having to worry about their being undercut by statute. The Supreme Court seems to have found a solution that is fair to all parties. Maybe next time the legislation will be drafted so that the courts are not put in the position of having to make these difficult judgements the best part of forty years after enactment.

What I’ve been watching this week

For violent, multilingual spies; for eerie opening credits sequences; for patterns of allegiance you will need to write down somewhere; for improbable sentimentality about America; for racist portrayals of other countries; for the emotional intensity of Claire Danes and Damian Lewis and the beard of Mandy Patinkin; it has to be Homeland.

Pupillage interviews: What to expect and how to make the most of them

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As pupillage interview season gets underway in earnest, we share our experiences of the process in previous cycles, and ten tips for making the most out of your interviews.

Sam:

I made three rounds of applications for pupillage. During that time, I was very lucky, or unlucky, to experience more pupillage interviews than I now care to recall. In my first year, I had one first-round interview and one assessed mini-pupillage. As my CV and confidence improved and my number of applications increased over the next two years, so did my number of interviews. The more interviews I did, the more at ease I became and the more reliably (though not perfectly) I was able to do my best. We hope to accelerate this process for you so that, if you are blessed with your first interview, you are not held back by inexperience. We have listed any pieces of advice best framed as action-points under ten tips below. Here are my broad impressions of the process.  

First: Most sets of chambers hold two rounds of interviews before making offers of pupillage. There are thus three filter-points. Which applicants will be selected for a first-round interview on the basis of their form? Which first-round interviewees will be selected for a second-round interview? And which second-round interviewees will be offered pupillage or placed on the reserve list? Some sets of chambers invite applicants for an assessed mini-pupillage as part of the process. This results in a process with more filter-points. Between form, first interview, mini-pupillage, second interview and offers, there are five opportunities to assess an applicant.

Of these points, the first is usually numerically the most challenging. Most sets of chambers invite a small minority of applicants for an interview, perhaps 10%. So, in a sense, if you are invited to an interview, you have cleared the highest hurdle, and deserve to be proud of yourself for that. But your competition will be stiffer at the interview stage.

At the first round, applicants will typically be interviewed by between two and four members of chambers, usually junior barristers. At the second round, it is more common to have a larger panel, maybe as large as seven, and for it to include a silk or two. Sometimes a single panel interviews all the interviewees, but sometimes different barristers interview different applicants.  

What happens in a pupillage interview? Unhelpfully, it varies. As a general rule, a first-round interview is a short, conversational, competency-based interview, while a second interview involves an advocacy or legal analysis exercise prepared shortly before the interview. However, every set has its own procedure. Here are some kinds of questions or exercises that might arise in a pupillage interview.

1. Competency question. This will usually address relatively directly a criterion or sub-criterion from the list that the set uses to assess applicants. Some sets helpfully publish this list on their website so that applicants can assess their own prospects and complete their form and interview preparation with the benefit of knowing how they will be assessed. Examples of such questions: “When have you used advocacy skills to persuade someone of something?” or “Tell us about a time you showed integrity.” Motivational questions and questions about an applicant’s knowledge of the set and the bar fall under this category: “Why do you want to be a barrister?” or “Why have you applied to Shoe Lane Chambers?” or “What would you like your practice to be like in ten years’ time?”   

2. CV- or form-based question. The panel might want you to expand on some work experience that you mentioned on your application form by asking you what you learned from it, or ask you what your most valuable piece of experience has been. They might ask you to explain why a certain thing is missing from your CV, such as mooting experience, or, if they are feeling mean, they might ask why your exam marks during one year at university were not as good as they could have been.

3. Prepared exercise. You could be sent a question or topic to prepare to discuss shortly before your interview. You might have between 15 and 30 minutes to prepare. Sometimes you are given a choice of topics and sometimes not. This could be a legal problem question, or it might be a law-related discussion subject, e.g. “Should jury verdicts be appealable?” or “Should remedies be discretionary in public law?” or “Should the UK forbid the development of any new airports or runways?” Alternatively, you might be sent a judgment and asked to prepare to summarise it and give your opinion about it.

4. On-the-spot advocacy exercise. Similar to the above, except that you might be given thirty seconds in the interview room to sit with the topic and gather your thoughts, or no time at all.

5. Curveball. Not all sets do this, but sometimes you will be asked something about your personal life or opinions that apparently has nothing to do with working as a barrister. E.g. “What new show would you pitch to Netflix if you had the opportunity?” or “Who is your favourite fictional villain?” Such a question may just be a chance for the barristers to see you in a relaxed state (if only), but usually there will be a quality that they are looking to measure, such as advocacy skills or articulacy while thinking on the spot.

6. Do you have any questions for us? Applicants will very often be asked this question at the end of the interview. Opinions differ as to whether you should make sure to have a question ready, but it is definitely preferable to say no than to ask a question to which the answer is available online.

Lois:

I was extremely lucky to get a pupillage offer at my first attempt. I applied during my GDL year, having taken a rather circuitous route into law. After completing a PhD on medieval bishops, I spent three years working as a policy officer in the non-profit sector. It was only when I was working from home during the first lockdown and contemplating the fact that I would be turning 30 the next year that I decided to take the plunge and pursue a career at the Bar.

I knew from my time working in policy that I had a broad interest in public law and a particular interest in planning and environmental work. I applied to nine sets, each of which specialised in this area to a greater or lesser extent, and received six invitations to first-round interview. The interview invitations were spread over quite a long period, so don’t panic if you haven’t yet heard back from your favourite sets. They may just be taking their time to shortlist. I ended up being called back for second rounds at some sets before I’d even had my first-round interviews at others.

The first round

My first-round interviews were all with panels of two or three mostly junior barristers. They were each around 20 to 30 minutes long, but the interviewing styles varied widely, as did the type and number of questions I was asked.

My first interview comprised a mixture of competency questions, looking for examples of skills that the chambers had not asked about on its application form, and questions testing candidates’ awareness of current affairs and legal news. I was also asked to talk about a time when I had had to apply a complex area of law and then explain said area of law to the panel. The most disconcerting aspect of this interview was how inscrutable the panel were. I emerged with absolutely no idea how I had done.

Another set filled the time with a ten-minute presentation and follow-up questions on one of a choice of five topics sent to candidates 30 minutes before the interview, followed by only three other questions. The interviewers were extremely friendly and provided lots of positive reinforcement. In fact, the whole thing felt more like having a conversation than doing an interview.

At a third chambers, a panel of three (who had obviously read my form carefully) kicked things off by asking me a charmingly whimsical question about whether I thought eleventh-century bishops would like the modern planning system, before firing tricky questions at me for twenty minutes and pushing back hard on many of my answers. The aim of this interview was clearly to see how candidates coped under pressure, more than trying to elicit any particular ‘right answers’.

Finally, there was the set which asked a series of disarming questions designed to elicit information about what candidates were like as people beyond what they had written on their application forms. They closed the interview by asking me to talk about a book I found emotionally meaningful, so of course every book I had ever read immediately fled my brain. I somehow found myself talking about my love of Lord of the Rings and emerged feeling very glad that I would never have to be cross-examined by the interview panel!

Perhaps unsurprisingly, the two sets where I felt that I had given my most predictable, generic and rehearsed answers were also the two that did not call me back for a second round. (Is completing my PhD really the achievement I am most proud of? To be honest, I am still not sure). I guess the moral of the story is to let your personality show a bit. And to talk about hobbits where possible…

The second round

Second round interviews tend to be longer than first rounds, though this isn’t always the case. At the chambers from which I eventually received an offer I was in and out in 20 minutes and convinced I had blown it because I had been told in advance that they were 40-minute slots. It is definitely wise not to second-guess how you have done from the length of the interview.

All four of my second rounds involved some form of advance preparation. Mostly this entailed reading a case or a problem question shortly in advance of the interview and then responding to questions about it, but one set required candidates to carry out a pre-prepared advocacy exercise on an unfamiliar area of law and submit a skeleton argument several days ahead of the interview.

The interview panels stayed fairly small for three of my second rounds, but at one set a panel of nine had the privilege of watching me spectacularly screw up my answer to a legal ethics question. If you are applying before you start the Bar course, I would highly recommend finding someone to practice ethics questions with ahead of time.

On the whole, my second-round interviews involved a lot more legal analysis than my first rounds and also more practical advocacy. Even at sets where I wasn’t asked to prepare for a formal ‘advocacy exercise’ I ended up having to do something akin to one, whether it was presenting submissions for a hypothetical appeal against a judgment given to me ahead of the interview, summarising the argument of my PhD thesis in two minutes, or responding to the question “what is the point of the National Housing Federation?” (my former employer) in one. All these were, in their various ways, testing candidates’ ability to think on their feet and prioritise their strongest arguments.

Across both first and second rounds I also received a number of questions aimed at testing candidates’ understanding of what barristers actually do, from how I would feel about acting for clients whose views and interests did not align with my own or those of my previous employers, to whether I would rather do more court or inquiry work, to what I would find most difficult about a career at the Bar. As Sam mentioned above, it is definitely not essential to ask a question at the end. I didn’t in any of my interviews and I certainly wouldn’t recommend trying to come up with a question just for the sake of it.

Overall, I enjoyed the interview process much more than I expected to. The intellectual challenge and variety of pupillage interviews made a nice change of pace after several years of more conventional job interviews and my interviewers were mostly lovely. I feel that coming to the process as a mature student definitely helped me to feel more at ease and I was relieved to find that my slightly unconventional CV and relative lack of legal work experience didn’t count against me.

Image from the excellent Defending the Guilty.

Ten tips:

  • Structure your answers. Barristers are in general obsessed with the number three. Not all answers will lend themselves to this kind of structure, but if you can divide your answer into two, three or four parts, begin your answer by saying “I have two/three/four points”, then say “my first point is” or “firstly” before each one, your answer will not only be much easier for the panel to understand than otherwise, but you will also sound more like the panel’s idea of a barrister yourself. If this becomes a lifelong habit that wins over judges and loses you friends, so be it.
  • Keep your answers short and sweet. Applicants’ answers are often too long. You may have a lot of worthwhile things to say, but if you wait to be interrupted by the panel, you may never finish speaking. This is especially the case if it is an unexpected question and you are building the road in front of you as you speak, but even a question like “Why do you want to be a barrister?” only wants a few snappy points or an easy-to-follow narrative. A little practice with a friend or listening back to your own recorded answers can help you to identify when you could be more concise. 
  • Re-read and annotate your form. Link the achievements you have included on your form to as many competencies as you can think of. You may be asked for examples of times you’ve demonstrated skills which are not explicitly addressed in the questions on the form. Identify anything particularly interesting or unusual that is likely to elicit a question. If you are an expert on eleventh-century bishops or keen on animal law, you are likely to get a lot of questions about this, so it pays to decide in advance how you can best pitch what makes you unique.
  • Plan answers to likely questions. You may get some curveball questions (as Sam discussed above) but a lot of questions will be predictable. You will be asked why you want to be a barrister, why a particular area of law, why a particular set? You don’t need to script answers to these questions word for word, but make sure you have clearly identified the key points you will make in response to each. Consider practicing with friends and family members, so that your responses will seem considered without seeming scripted. It’s also well worth writing down what questions you were asked immediately after each interview. It will help you prepare should you encounter them again.
  • All experience is useful experience. You may find yourself competing against people with significantly more legal work experience than you, or who have come top of their year on the Bar course, or won a whole host of moots. Try not to panic about this. An unconventional CV is not necessarily a disadvantage. It may help to make you stand out. Apparently unrelated jobs and hobbies can also provide a wealth of relevant examples of times you have demonstrated the skills needed to become a successful barrister. Teaching a class of 30 students means you can work under pressure, convey complex information clearly, and think on your feet. Running your own jewellery-making business on the side shows that you are self-motivated and know how to market yourself effectively. Volunteering at a local homeless shelter demonstrates your integrity and emotional intelligence.
  • Present yourself professionally. Expressions like this are laden with cultural assumptions. You should not try to be someone you aren’t or to fit what you think, or what you think others think, is the model of a barrister. Every aspect of your character that distinguishes you from the historically average barrister is something for you and the bar to embrace. What I mean is that you should treat the panel with respect, as in any job interview. This includes dressing as you would on a mini-pupillage or on work experience with solicitors. Suits are essential, unless you are specifically informed otherwise, and should be worn with a shirt and tie, a white blouse, or a dark dress underneath. 
  • Remember that interviewers are human too. They may have a particularly stressful case coming up next week. They may be relatively junior juniors interviewing for the first time alongside more senior members of chambers and anxious to make a good impression. Many pupillage interviews take place outside of ordinary working hours and that means that the panel are giving up some of their limited free time to interview you. Be polite, appreciative and empathetic. Remember that these will be your future colleagues if you are successful.
  • Try to relax. If this is not possible, try to appear relaxed, and you may find that you forget to feel nervous a few minutes in. There is no point pretending that there isn’t a power imbalance in the interview room, but the panel will be trying to identify applicants who could, in a couple of years, inspire confidence in professional and lay clients and hold their own in front of a grumpy judge. Be polite and respectful, but not meek. 
  • Do not worry if you have a difficult interview. If the panel pushes you to or beyond your limit, it is because they think you are worth pushing. If you spend the whole interview in your comfort zone, you may not have the opportunity to show your best. So if you feel out of your depth at any point, calm yourself by remembering that it is part of the process for everyone who eventually succeeds.
  • Give yourself credit. Many sets get hundreds of applications every year. To have got to the interview stage at all is a huge achievement. The interview process can be gruelling and it’s important to take time to celebrate your successes. Similarly, try not to take rejections at any stage too personally. There is always an element of chance. Sometimes a panel has to make a call between two apparently equal applicants, for example on the basis that one of them fits the culture of chambers better, which is very hard for applicants to gauge. It also only takes one super-applicant (an experienced solicitor or well-known academic in a relevant field) to change everyone’s prospects in a given year.