Authors:Bernard Bannerman
Last updated:2023-09-18
The end of an era?
Marc Bloomfield
As Arden Chambers merges with 4–5 Gray’s Inn Square, legal thriller writer Bernard Bannerman1An anthology of the first four of his Dave Woolf series has recently been republished under the title From Wednesday to Judgement; he has also published the fifth and sixth in the series, Dowell’s Disappearance and Carson’s Confession. profiles his alter ego Andrew Arden QC.
He never wanted to be a head of chambers; truth is, he never really wanted to be a barrister, but he did law at university more or less by accident, and he would qualify a year earlier as a barrister than as a solicitor.
He never fit in; not at school; not at university; most certainly not at the Bar. His childhood was a mess: his parents divorced when it was not nearly as common as now; his father left a lot to be desired – Arden has written a number of novels himself, the first of which, The Motive Not The Deed, was about a man’s murder of his father, which says it all. He left school at 16, went to work for Radio Caroline, the pirate radio station, in its London office; later, he bummed around Europe until he found himself broke in Oslo and signed on as a merchant sailor. He spent a year at sea, came back and took his A levels from a crammer, fell out with the French teacher and was steered towards law on the basis that the tutor would be able to handle him. That’s how he came to law: no love of it, nor of the game – just happenstance.
He did his first six months’ pupillage with leading left-wing barrister Lord Gifford; fell out with the barrister lined up for his second six so Michael Mansfield took pity on him and became his pupil master, but Arden did no crime so he went on working with Gifford and became one of the founder members of the first set to establish itself outside the Inns of Court, originally Bowden Street, which later became Wellington Street.
Description: Andrew Arden at North Kensington Law Centre 1974
For Gifford, he prepared cases on landlord and tenant thrown up by the newly emerging Law Centres (Arden is pictured left volunteering at North Kensington Law Centre in 1974). Digging the law out of Woodfall, Hill & Redman and Megarry & Wade, Arden was bemused by how little legal literature directly addressed residential occupation – only Megarry’s classic book, The Rent Acts. His friend Clive Morrick had just quit practice as a solicitor and was Deputy Director of the Legal Action Group, by then itself only a year old, responsible for its monthly LAG Bulletin: he told Arden to write it up – to this day, there are people who remember the series of articles which followed, on Tied Occupation, Tenancy and Licence, Statutory Residence, Furnish/Unfurnished. Until 1980, he was the principal author on housing law for the Bulletin, for a while formally LAG’s Housing Consultant. Between 1974 and 1992, there were 42 articles in the Bulletin, mostly housing but also ‘Barristers and the Cab Rank Rule: Some People Can’t Affords Taxis …’2LAG Bulletin December 1978 279. on the cab rank principle. Numerous articles in other legal journals too.
A couple of years into practice, he was seduced into setting up the first of the Birmingham Law Centres, Small Heath; for the next two years, that was what he did, along with part-time teaching at Warwick University School of Law, writing the first edition of what was to become the Manual of Housing Law,3Now published by LAG and in its 10th edition. and taking over Sweet & Maxwell’s Encyclopaedia of Housing Law, massively expanding its coverage from Housing Acts imposing duties on local authorities to the Rent Acts, Leasehold Reform, extracts from matrimonial law, compulsory purchase, mobile homes, homelessness from 1977. A series of articles on that Act, drawing out the public law element which was then relatively unfamiliar to most legal aid practitioners, led to the first edition of what became Homelessness and Allocations.4Also published by LAG and now in its 11th edition. In 1981, he was the first editor of the Housing Law Reports, which he still edits. In 1982, it was followed by the first edition of Arden & Partington’s Housing Law.5Still published by Sweet & Maxwell as a loose-leaf. At the end of the 1990s, the Journal of Housing Law. Somehow, he found the time to write three titles for lay readers6Allison & Busby. and edit a series of books for housing officers, Arden’s Housing Library.7Lemos&Crane.
The 1980s was the decade of local government inquiries for Arden: housing association funding for the GLC (1982–83), improvement grants for Bristol (1985), and for Hackney he took on freemasonry but soon realised that if there was organised freemasonry at the local authority it was the only bit of it that was, which saw his terms of reference expanded to address the institutional deficiencies of the authority (1985–87). Later, in 1992, there was an inquiry into a deferred purchase scheme for Camden and back to Hackney (1994) for failures in its disrepair service. Out of this period came first the loose-leaf Local Government Finance Law, which has since ceased publication, and Local Government Constitutional and Administrative Law, a third edition of which has just been commissioned by Bloomsbury.
Along the way, he fell out with everyone: Wellington Street, then the Chambers of Sibghat Kadri QC, members of his next set, Hackney Council itself. In court one day at Bloomsbury and Marylebone County Court he asked not one but two judges to recuse themselves from a case on the same day. His relations with one High Court judge were so bad that every client asked the same question: why does he hate you? He has come close to fisticuffs with opposing counsel, though ‘not for years,’ he protests.
He has been in 125 reported cases, mostly housing, some local government, 27 of them in the House of Lords/Supreme Court. He has been described by Chambers and Partners UK as the ‘pre-eminent expert on housing and local government law’, ‘the godfather of housing law’, ‘consistently involved in the biggest and best cases’, ‘head and shoulders above anyone else in housing litigation’, ‘a genius who wins and wins’ and as having ‘created housing law as a discrete subject’. He is currently ranked as Social Housing’s sole Elder Statesperson. For years, he and Jan Luba QC were familiar opponents in the Court of Appeal and beyond: surprisingly, it is one of his relatively few friendships at the Bar. Most senior barristers count a number of judges as personal friends: apart from Luba, Arden has just two.
‘The trouble is, I can’t compromise,’ he admits. ‘It sounds admirable, but it’s a weakness; it intimidates some, infuriates others. I suppose it’s something to do with my childhood and my overbearing father, the need to stand up to him for fearing of losing any sense of myself. Also, there’s an element of being an outsider – I’m a Jew and in my most formative years, we were the principal minority; there’s a feeling that comes with it that you don’t really belong, that it – the system, the law, whatever institution you are involved with – belongs to its indigenous members and that you have to try harder in order to keep up with them. If, in fact, you aren’t as dumb or defective as you think, you end up ahead of the pack and being damned for your competitiveness or aggressiveness or arrogance. Of course, that’s a massive generalisation, but it’s pretty much how it looks from my end, anyway. Someone once wrote in an article that I don’t suffer fools gladly; that’s wrong, actually – what I can’t stand is people delivering less than their best, especially when they are doing it in the context of a matter as important as housing. A leading left-wing barrister once told me that the only way to ensure equality of arms is to be as good as the best the private sector has to offer; private clients have at least the notional possibility of shopping around, legal aid clients don’t.’
Arden Chambers
‘I believe in housing. I may have got into it more or less by accident but I have a passion for social housing, a belief that a decent home for everyone is an absolute right and, moreover, that if everyone has a decent home growing up, it would lead them into fruitful and successful lives. I believe in full security, social rents, virtually no private sector.’
After Kadri’s, Arden joined a common law set. Housing cases followed him in quantities he could not possible undertake himself. Nor was there any particular commitment to housing where he was then practising: housing cases had long been treated as a ‘filler’ or a ‘beginner’ activity – most common lawyers at the Bar would have done possession cases in their early days, not much different from the remands and bail applications young criminal barristers do: poor relation. Nor could Arden do anything to monitor how cases were being delivered. It might have been self-preservation, because if cases were not done well it was bound to reflect on him, but in the end, he could see only one way forward, to establish his own set, the first to be primarily focused on housing and, as it has turned out, the only one to do so. A prospective member who dropped out suggested the name. It opened its doors in April 1993; it closed them on 30 September this year, the other members moving in with long-established, conventional, public law 4–5 Gray’s Inn Square.
In the early years, he had acted for tenants and the homeless – it was their voice which was unheard – as he and others – like long-standing co-authors Martin Partington and Caroline Hunter – formulated the subject and many still take the view that housing law belongs to occupiers alone and – at least apparently – only act for them (although the truth is that many of the best known such lawyers do also advise social landlords, albeit they avoid appearing in court for them, an odd balance – or compromise – of which Arden is highly critical).
His work with and, to an extent, in local government had a major influence: two of the top team at the GLC – John Fitzpatrick, the last solicitor to the council, and Maurice Stonefrost, Comptroller of Finance, then Director-General, then the final chief executive – became his close friends and mentors and instilled in him a love for local government second only to that for social housing. Moreover, he was routinely advising local authorities and they felt it was wrong for him to fail to stand up for policies he had helped them evolve just because the other side was one of their tenants or applicants. He agreed and Arden Chambers held themselves out as acting for all those with an interest in housing, be they local authority, other social landlords, tenants and the homeless, and even a smattering of private landlords (which Arden admits he always tried to avoid).
In this, they were unique: other sets where housing is a major part of the work tend to target one side or the other: housing is highly tribal; the housing law bar exceptionally so. In a way, it was pure Arden: now he was antagonising everyone. Not quite, though: there was a growing coterie of solicitors and barristers who subscribed to his obsessive specialisation. Arden Chambers, incidentally one of the first not to be known by an address or as ‘the Chambers of …’ and one of the first to adopt a ‘logo’, introduced its own internal CPD requirements long ahead of the Bar; mentoring was institutionalised; they published their fees, something which will only be fully mandatory at the Bar from next April; members read the literature that they didn’t write; they took specialism to mean a proactive approach to cases, addressing the circumstances holistically, not confined by the issue as defined by the other side or even the client – ‘the deeper they dug, the stronger the keep’ might have been the motto. Their quality of service statement offered:
‘The basic professional competence, to which clients are entitled from all members of the Bar, including working up the law that appears to be relevant to a case;
A generally higher level of awareness of developments and trends in law (substantive and procedural) itself, reflecting Chambers’ commitment to the ‘academic’ approach (involving research and knowledge of law itself) that is implied by specialising, rather than confinement to a reactive approach to legal knowledge and practice; and,
A full and up-to-date knowledge of a specialist subject as a whole (commensurate with date of call and experience), meaning all its possibilities and all its implications.’
Their reviews in the directories suggested success:
‘the best for social housing law’
‘an absolute class act’
‘truly outstanding barristers who understand the importance of client care’
‘the premier social housing chambers with broader expertise spanning public law and wider property litigation. … [S]olicitors say they have always had excellent representation whenever instructing barristers from this set’
‘smart, articulate and approachable barristers’
This high level, high quality service was as available to those on legal aid as to privately paying clients; most of the latter, however, were themselves publicly funded bodies – Arden Chambers always lived on the financial edge.
‘We were swimming against the tide in every respect. We did not want to be too large to be able to ensure that minimum standards were being employed. We were acting a great deal for tenants and the homeless, while both legal aid and public funding generally were being cut year-on-year, solicitors were leaving the market and public authorities pursued the lowest fees they could possibly achieve. The funny thing is, we could have continued indefinitely: we had the work but we just did not have the members to do it. That’s the sole reason we had to merge: too many members left too quickly. In the past when members went, we always had time to recruit and we invariably kept the clients, so we did not lose much work at all. In the last year or so, too many too quickly. At this last stage, it was also fed by fear of failure – I was getting on, there were still no new silks, it became a self-fulfilling prophesy. I told them the only thing they had to fear was the fear itself – and they went right for it.’
Members came; members left. That has been the downfall. Arden Chambers always had a strong flow of work not allocated to individual barristers: their clients wanted the brand. New members did not have to work for practices, they were available à la carte. Members who did their pupillages at Arden Chambers and who had never practised elsewhere found it easy to get work. As they approached their middling-to-senior junior years, there was a tendency to believe that if they went elsewhere, they could earn more; perhaps there was an element of feeling overshadowed by the brand; always, the grass is greener. Most other sets to which members have gone have tended to target landlords rather than legal aid. Property work – as other sets call service charge and leasehold cases which Arden considers housing law – is the siren call.
‘In the early years, there were departures which flowed from disagreements about policy or the enforcement of specialist standards, some of which may have included an element of personality clash; but for the last 10 or more years, I have been largely distanced from the majority of members and the phenomenon of people leaving has mostly been about moving elsewhere to earn more and/or the wish to stand out more from the crowd. By the sort of stage in careers I’m talking about, 10 years in maybe, members were earning well enough to be attractive to other sets, and there was a fairly constant “noise off” of “offers”. The irony is that very few of our ex-members appear to have done particularly well elsewhere, although I take some pride in the fact that a substantial proportion of the housing barristers ranked in the directories are present and past members. If we achieved one lasting effect, it was to contribute significantly to the growth of a corps of practitioners committed to housing work.’
This sole attempt at silver lining notwithstanding, he is angry and does not deny it: they had good practices, decent careers and livings, but at just the point when Arden Chambers should have been able to benefit from them putting more back in as they grew more senior, they left. He does not see it as a personal betrayal: ‘I had stepped down as Head of Chambers in 2013, when I turned 65.’ He sees it as a betrayal of the ideal and of housing law practised to a degree of specialism not found elsewhere; in the end, for too many of them, it was just another subject, another way to make a living. ‘They may have said they believed in it, but those who did stayed.’
Arden Chambers was important for housing law generally: so long as there was a set dedicated to the subject, it also served those in other sets where housing is only one of a number of areas of activity, as a bulwark to ensure that housing was not downplayed. It contributed to change in the nature of the debate, injecting a breadth of understanding and practicality, a perspective which was known to be based on its bipartisan approach, that allowed them to advance authoritative arguments that worked for all: certainly, the House of Lords/Supreme Court has taken a major interest in it and it has, of course, been one of the main battlegrounds of the Human Rights Act.8Qazi v Harrow LBC [2003] UKHL 43; [2004] 1 AC 983; [2003] HLR 75; Kay and others v Lambeth LBC [2006] UKHL 10; [2006] 2 AC 465; [2006] HLR 22; Manchester CC v Pinnock [2010] UKSC 45; [2011] UKSC 6; [2011] 2 AC 104; [2011] HLR 7; Hounslow LBC v Powell; Leeds CC v Hall; Birmingham CC v Frisby [2011] UKSC 8; [2011] 2 AC 186; [2011] HLR 23.
Arden is unrepentant about his efforts to keep the Convention out of housing law. ‘Housing ought to be a basic right, but it ought to be recognised as such by domestic law, and embodied in common law rather than imported under the Convention – it has made housing law less focused, it has increased the number of cases, it has achieved virtually no gains for occupiers but, as usual, the real winners have been lawyers.’
Arden Chambers was home to many of our best-known housing lawyers – Christopher Baker, Jonathan Manning, Iain Colville, Ian Peacock, Andrew Dymond, Toby Vanhegan, Justin Bates. Ironically, after his falling out with Hackney, the authority’s ex-leader, John McCafferty, qualified as a lawyer and has practised for the whole of his legal career at Arden. It will certainly be missed.
Why no other silks? That’s the elephant in the room. ‘Not for want of talent. A lot of housing is in the county court; not a lot of it is well-paid; I don’t know if my reputation as a maverick worked against it but certainly we haven’t had the connections that work in the background – fair competition notwithstanding – to ensure silk, by means of references, being talked up and so on.’
Arden Chambers closed out of economic necessity. Most of the remaining former members went to 4–5 Gray’s Inn Square on October 1; Arden did not go with them. Until a very late stage, it had been expected that 4–5 would take ‘incorporating Arden Chambers’ into its name, but Arden, who owns the brand, withheld permission after what he describes as wholly unsatisfactory merger discussions that left him clear that he did not want his name associated with theirs. Once again, he had fallen out with those around him, although he points out that he is still on good terms with the former members of Arden Chambers – it is 4–5 with whom he is at loggerheads; given his history of relations with the conventional Bar, one can only wonder that he ever thought it would be otherwise.
Arden is continuing in practice, for the time being as a sole practitioner. He is hopeful that not being so strongly identified with a set will see him working with more barristers from other sets, something which became a rarity while at Arden Chambers.
Arden turned 70 this year. He is committed to continuing for the next few years to edit the Encyclopaedia, the Law Reports, the Journal; Arden & Partington is still a significant seller; there will be new editions of Homelessness and Allocations, the Manual, maybe also Quiet Enjoyment.9Another LAG title, now in its 8th edition. He has practice work in hand. He is not keen on court, but he never was; he thinks his best work has been out of court – if he can get the client 90 per cent of what the client wants without litigation, it’s better than risking it all by taking it into court.
He views courts as utterly unpredictable, predominantly merits-led, judges willing to stand on their heads to get the result they want, as witness the outrageous and intellectually indefensible R (CN) v Lewisham LBC; R (ZH) v Newham LBC [2014] UKSC 62; [2015] AC 1259; [2015] HLR 6, in which the Supreme Court (by a majority) held that homeless people were not occupying accommodation let to them as a home for the purposes of the Protection from Eviction Act 1977, but were factually occupying it as a home for the purposes of housing benefit (with no discernible different definition): the minority judgments of Lord Neuberger and Lady Hale are scathing and do not conceal their view that the majority was legislating where Parliament had already done so.
It was a turning-point for Arden. If even Supreme Court Justices would casually add one and one to make five then there ceased to be much point putting a lot of effort into explaining why it could only be two. ‘Prejudice has always been there, but by and large it was moderated at the top; lower courts can more or less get away with saying they’ll decide what they want and if you don’t like it, you can appeal; but in the highest court, it is essential that it provides tenable law because – given the constraints on Parliamentary time – there is nowhere else to go.’ Like most of the left-wing bar, he reveres the President, Lady Hale, but he does not know many of the new judges of the Court of Appeal and Supreme Court and struggles to identify any others he admires: no surprise there, he still can’t compromise.
What about more fiction, I ask in parting? ‘I’ll leave that to you,’ he says.
1     An anthology of the first four of his Dave Woolf series has recently been republished under the title From Wednesday to Judgement; he has also published the fifth and sixth in the series, Dowell’s Disappearance and Carson’s Confession»
2     LAG Bulletin December 1978 279. »
3     Now published by LAG and in its 10th edition»
4     Also published by LAG and now in its 11th edition»
5     Still published by Sweet & Maxwell as a loose-leaf. »
6     Allison & Busby. »
7     Lemos&Crane. »
8     Qazi v Harrow LBC [2003] UKHL 43; [2004] 1 AC 983; [2003] HLR 75; Kay and others v Lambeth LBC [2006] UKHL 10; [2006] 2 AC 465; [2006] HLR 22; Manchester CC v Pinnock [2010] UKSC 45; [2011] UKSC 6; [2011] 2 AC 104; [2011] HLR 7; Hounslow LBC v Powell; Leeds CC v Hall; Birmingham CC v Frisby [2011] UKSC 8; [2011] 2 AC 186; [2011] HLR 23. »
9     Another LAG title, now in its 8th edition»