Weekly Notes: legal news from ICLR – 13 November 2015
Posted on 15th Nov 2015 in Weekly Notes
This week’s platinum album of legal news and comment includes lyrical logic and poetic justice, along with a threatened library and a tender-hearted omnishambles.
“Stone walls do not a prison make…”
No indeed. They can just as easily be turned into a luxury town centre hotel or new housing development. Hence the Chancellor’s announcement this week that he would sell off old Victorian jails, which are on prime land for housing development, and replace them with a series of new prisons, as reported in the Spectator. The plans form part of the chancellor’s spending review, due on 25 November.
Pentonville in north London has been suggested as a prime site for closure, with its proximity to St Pancras international rail terminal and all the restaurants and bars of Islington, while Reading, subject of Oscar Wilde’s famous Ballad of Reading Gaol, is already on the market.
“… Nor iron bars a cage”
Meanwhile, new prisons will be built, of modern design and materials, on out of town sites, a bit like supermarkets and shopping malls. They will be cheaper to maintain but probably no nicer to serve porridge in. (Porridge should really be served in a porringer, I suppose. But I can’t see it catching on as a bit of bird slang.) Of course, they may be less convenient for families and legal advisers to visit, but some of them (eg the ones with Moor in their name) never have been.
Michael Gove, in his capacity as Secretary of State for Justice, believes the policy will aid his plans for better rehabilitation and reduced re-offending. It was broadly welcomed in a piece on Conservative Home (not a reference to the institutions in question) by Mark Wallace: Sell outdated prisons and build new ones – the first step in Gove’s mission to reform the penal system
The Spectator was more sceptical, but recommended adopting a Scandinavian-style approach of smaller prisons, locally managed, to promote better rehabilitation and reduced reoffending rates. Given that Gove was previously a Secretary of State for Education, one wonders whether the idea may have crossed his mind of creating Academy Jails, funded privately, and managed independently, along the lines of Academy Schools?
(The poetic quotation in this item was not from Wilde’s Ballad, by the way, but from “To Althea, from Prison” by the metaphysical poet Richard Lovelace in 1642, and was most famously used by Evelyn Waugh for two chapter headings in Decline and Fall, his first and funniest novel.)
Duty Provider Contracts delayed
The saga of the criminal legal aid duty provider contracts tender process continues. On Friday 13th November the MOJ finally conceded that, owing to legal challenges by numerous solicitors’ firms whose bids had been unsuccessful,
There are now automatic injunctions on us proceeding with the new contracts in a number of procurement areas until those legal challenges are resolved”
Accordingly, the start date for the new contracts for those whose bids had been successful had to be put back, and would now begin in April instead of January next year. Commenting on what one solicitor has called an “omnishambles”, Jon Robins of Legal Voice reported that a second whistleblower from the challenged Legal Aid Agency had now come forward, effectively reinforcing the leaked disclosures of an earlier one, to the effect that the contract assessment and award process had been less than well managed and fair.
Obviously the LAA and MOJ dispute that assertion and will no doubt be instructing lawyers (at rather more than legal aid rates, we suspect) to vigorously defend the legal challenges which are being brought against them and which take two forms. First, a challenge by way of judicial review, brought by about 150 firms involved in tenders covering around 85% of the country; second, procurement appeals by disappointed firms, which are what led to the injunctions against the LAA proceeding with implementation.
- See also: Law Society Gazette, various, including JR firms set up alliance to challenge legal aid contracts
- Hear also: Law in Action, presented by Joshua Rozenberg, who discusses this in his programme dated 3 November (via iPlayer radio).
Taylor Swift shakes off lawsuit
There’s an old adage in the music biz: “where there’s a hit there’s a writ”. We’ve covered this before, but the latest example comes in relation to Taylor Swift’s bestselling album 1989, which was released in 2014. Another musician has had the temerity to complain that one of Swift’s songs, “Shake It Off”, copied lyrics from one of his own songs.
Having unsuccessfully asked for a writing credit and a selfie with Ms Swift, the plaintiff Jesse Braham (aka Jesse Graham) filed a lawsuit on October 28 demanding $42 million in compensation contending that 92 per cent of Swift’s hit was based on his song “Haters Gonna Hate”. He got short shrift from United States District Court Judge Gail Standish, who essentially struck his case out (as presently pleaded) on grounds of insufficient evidence.
At any rate, that’s how we read the jurisprudentially sketchy reports of her judgment, such as that in the Daily Telegraph.
“Braham may discover that mere pleading BandAids will not fix bullet holes in his case”
said the judge, before, or perhaps in the course of, breaking into song:
“At least for the moment, Defendants have shaken off this lawsuit”.
Breaking into song lyrics, at any rate – those being the lyrics of the defendant songstress. There was more quotation:
At present, the Court is not saying that Braham can never, ever, ever get his case back in court. But, for now, we have got problems, and the court is not sure Braham can solve them. As currently drafted, the Complaint has a blank space – one that requires Braham to do more than write his name…”
Excited (over-excited) commentators were quick to point out the references to Swift’s songs, “We Are Never Ever Getting Back Together”, “Bad Blood” and “Blank Space”. Proving, perhaps, that other old adage (which I just made up): “Where there’s a load of hype, reporters soon itchin’ to type…”
See also: Guardian Judge borrows Taylor Swift lyrics when shaking off plagiarism suit
Inner Temple library petition setback
We reported in Weekly Notes on 4 September, the Executive Committee of the Inner Temple have proposed a programme of redevelopment works which will involve the library’s entire upper floor and gallery being converted into meeting rooms, offices and an auditorium for education and training. This was the Option 2 selected in preference for the less drastic Option 1.
The latest update from Guy Tritton, who set up the petition to oppose the Option 2 development, brings disappointing news:
Thanks for your support. Sadly, at a recent meeting of Inner Temple benchers, by a very narrow margin I am told (51%), Option 2 was selected. his is obviously devastating for the Inner Temple library. Option 2 will not be acted upon until the outcome of the current application to list the library has been resolved. Let us hope that succeeds.
You can still sign and support the petition, which has well over 1500 already and aims to reach 2,000 supporters by the end of the year.
Hale on Diversity
Speaking on the subject of Appointments to the Supreme Court at the Conference to mark the tenth anniversary of the Judicial Appointments Commission, University of Birmingham on 6 November, Baroness Hale of Richmond, Deputy President of the UK Supreme Court, while bemoaning the deplorable lack of diversity in the senior judiciary, expressed her disappointment that more women had not “stepped up to the plate” and applied for such posts:
“It really bothers me that there are women, who know or ought to know that they are as good as the men around them, but who won’t apply for fear of being thought to be appointed just because they are a woman,”
Her remarks were widely reported, eg in the Evening Standard. But there’s much more to the speech than this, including some alarming revelations about the appointment process. Read the full speech (PDF).
Proudman in profile
In the same week as Lady Hale’s speech, Charlotte Proudman, who seems to have launched a media career on the strength of the public reaction to her publicised reaction to a clumsily patronising compliment of her professional portrait on LinkedIn, was the subject of an interview in The Times, part of which was conducted in a photographer’s studio where she was having an even more professional looking portrait done.
Next to the interview (by an eggshell-treading Will Pavia) there is an article by Proudman, in which she complains of institutional sexism in the legal profession and expresses support for quotas as a way of achieving a measure of equality in judicial appointments. One wonders how Lady Hale would react to Proudman’s suggestion that her appointment was that of “a white, privileged, token woman who has attained high legal office.”
Poole on Pupillage
Is it doomed? On his Learned Friend blog, Nigel Poole QC notes how what used to be a profession (or vocation) is now just part of the legal services “industry”, and the 12-month apprenticeship which self-employed barristers used to be happy to provide new entrants is now increasingly under threat as chambers are pressured by financial forces into adopting other methods of swelling their ranks with new talent.
“When operated properly the pupillage system can work very well, but it depends on the generosity of established barristers and their chambers. … The cost to chambers of recruitment and training is considerable.”
Chambers are not obliged to accept or train pupils, and if they don’t do so, barristers will have to find other ways of getting training, eg by becoming a solicitor first and then transferring across.
The system of pupillage is reliant for its successful operation not only on individual chambers and barristers giving generously of their time and money, but also on all chambers agreeing to adopt the same practice of recruitment. If only some chambers offer pupillages, then the pupillage system will fade away.
- Chambers Student reports that while trainee retention rates are high, the number of training contracts in solicitors’ firms is low, so the high retention may be simply because there’s fewer to choose from. The report sets out all the stats and suggests reasons why some trainees may not be allowed to stay. Still, it is beginning to look like a more secure route in to legal practice than pupillage at the Bar.
- The ICLR is committed to supporting pupillages for those who face financial hurdles to achieving their professional potential. For more details, see ICLR Pupil Award
On the reading list:
Internet Newsletter for Lawyers – November/December 2015 now out.
Keep Calm Talk Law – now in its third year
In a post celebrating its second birthday, the online legal blogging collective records that “We have published 392 articles (800,000 words) and acquired over 89,000 readers.” That’s an astonishing number of readers, however calculated (presumably not confined to subscribers, like myself, who take the email alerts). The site publishes articles on a range of legal subjects, and is a good vehicle both for emerging legal commentators and for those who want to keep up with contemporary legal issues.
Oxford Public International Law (from Oxford University Press) has published a History of International Law interactive timeline, showing key events in international law from the Treaty of Tordesillas in 1494 to the present day. It pays particular attention to the signing of major treaties, the foundation of fundamental institutions, the birth of major figures in international law and milestones in the development of some of the field’s best-known doctrines.
Tweet of the Week
A teaching innovation from James Lee…
— James Lee (@jamessflee) November 8, 2015
That’s it for now. My thanks to all who led me to stories, mostly my followees on Twitter.