Weekly Notes: legal news from ICLR – 25 September 2015
Posted on 27th Sep 2015 in Weekly Notes
This week’s roundup of legal news and events includes Lord Sumption’s assumption, Jeremy Corbyn’s legal team, Gove’s policy revisions, and two Transparency Project investigations. Plus human rights in foreign parts and a porcine speculation.
Lord Sumption makes an assumption
In modern Britain, the fastest way to make enemies is to deliver a public lecture about judicial diversity.
Prescient words, you may think, after this week, when the man who uttered them back in 2012 (at the beginning of a public lecture about, you guessed it, judicial diversity) found himself in the midst of a storm of indignation. Interviewed by the London Evening Standard on 21 September, his Lordship was reported to have suggested that
rushing to achieve equal representation for women at the top of the legal profession could inflict “appalling consequences” on the quality of British justice.
In fact what he actually said, in the body of the article, was that equal representation for women in the judiciary would take “decades” to achieve.
“These things simply can’t be transformed overnight, not without appalling consequence in other directions,” he said.
“You’ve got to be patient. The change in the status and achievements of women in our society, not just in the law but generally, is an enormous cultural change that has happened over the last 50 years or so. It has to happen naturally. It will happen naturally. But in the history of a society like ours, 50 years is a very short time.”
He also said there was a high attrition rate among female lawyers that was particularly difficult to address:
“The Bar and the solicitors’ profession are incredibly demanding in the hours of work and the working conditions are frankly appalling. There are more women than men who are not prepared to put up with that. As a lifestyle choice, it’s very hard to quarrel with it, but you have to face the consequence which is that the top of the legal profession has fewer women in it than the profession overall does.”
On balance, reading the piece as a whole, it was not as bad as the critics made it out to be. Nevertheless, people were quick to point to Baroness Hale of Richmond, the sole female member of the Supreme Court, and remarks she had made on the same topic in April 2013.
“We think we have got equal opportunities, but I would guess, for all sorts of reasons, they’re not necessarily truly equal because so much assessment of merit is subjective.
“There’s an awful lot of unconscious assumptions and judgements that are made when people don’t realise that that’s what they’re doing. The more used they are to having women, and people from ethnic minorities, around, the less that’s a problem because they know how we behave. But if you hardly ever see a woman, you don’t really know how to assess somebody who’s a candidate.”
See also her earlier lecture “Equality in the Judiciary” given in February 2013. Lady Hale is due to speak on a similar topic again in November at Birmingham law School, when the title of her speech is “Appointing Judges to the UK Supreme Court“.
Meanwhile, at the junior end of the commentariat, we were not surprised to find Charlotte Proudman, whose fame rests of having noisily outed a male solicitor for having commented inappropriately on her LinkedIn photograph (see, obliquely, Weekly Notes – 11 September). Invited (predictably enough) to comment in the Guardian, she argued that the only solution to the legal diversity gap was a system of quotas:
As long as women are reliant for promotion on a system infused by sexism, they will continue to wait generations to be fairly represented in the legal profession.
In a bid to limit the damage, the Supreme Court issued a statement pointing out that Lord Sumption’s full quotes in the Standard interview did not support the way
“some of [his] comments appear to have been misunderstood” and that
“The concern he expressed was against introducing any form of positive discrimination to the judicial appointments system without careful analysis of the full range of potential consequences.”
Lord Sumption’s comments and the backlash thereto were the subject of a post by Marilyn Stowe, on her blog, pointing out that she had once been a Bar student in Gray’s Inn but opted instead to go a different road:
I’ve never had to lose sleep about any Old Boys Network. Being a female solicitor in my own firm means despite the lack of a silver spoon start or knowing someone who could give my career a nudge in an upward direction, I’ve had to do far more than most to establish myself and my firm, and I’ve done it all my way without ever being beholden to anyone. I’ve even got married, had a child, and continued to work how I wanted, baby in tow. I’ve rolled up my sleeves, worked long hard hours for my clients, got the results, and in the process built my firm nationally.
You might call that a different lifestyle choice. No moaning at the Bar, at any rate.
Repairing the damage
Gove’s redrawing of priorities draws praise from commentators
On the subject of damage limitation, the exercise Michael Gove seems to be engaged on as new Secretary of State for Justice is that of correcting the errors made by his predecessor, and rebuilding some of the trust of the professions that Chris Grayling managed so notoriously to alienate. Writing in the Gazette, Joshua Rozenberg commented that
Since succeeding him, Michael Gove has set about dismantling many of Grayling’s more indefensible policies.
He also noted how
When dismantling Grayling’s legacy, Gove ensures that discredited policies are attributed to the ‘coalition government’ or the ‘previous parliament’.
The implication is clear enough. Gove wants to draw a very big line indeed between Grayling’s contentious legacy, and what he hopes will be his own rather more successful tenancy of the Lord Chancellor’s woolsack.
One of the most embarrassing of the adventures over which Grayling presided was the setting up of a commercial arm (Just Solutions Inc) to peddle penal know-how to foreign entities such as Saudi Arabia. As Rozenberg acknowledges, the legal blogger David Allen Green “has made much of the running on this story” and, true to form, he was back onto it this week, pointing out in his Jack of Kent blog that the MOJ appeared to have misinformed both the House of Commons and the High Court about its procurement exercise. Though acting more through folly than knavery, in Green’s opinion, their choice of Saudi Arabia as a customer was a poor one, given that kingdom’s history of disrupting the UK legal system and its lack of respect for the rule of law and the basic human rights of its own subjects (see below). As to disrupting our legal system, one only needed to consult the case of R (Corner House) v Serious Fraud Office  UKHL 60;  1 AC 756, and in particular the first 22 paragraphs. (The case was also the subject of a helpful explanation by Carl Gardner on his Head of Legal blog at the time.)
Another policy which Rozenberg thinks Gove would do well to drop as soon as he decently can is the disastrous (because both costly and manifestly disproportionate) criminal courts charge, over which more than 50 magistrates have already resigned. However, Gove has only said he would review it.
Corbyn sets out his stall
Labour’s new leader redraws battle lines on legal system
Following his landslide appointment as Leader of Her Majesty’s Opposition, Jeremy Corbyn drew much commentary over his initial choice of shadow ministerial appointments, not least for his apparent lack of support for gender diversity in the top posts. A slightly surprising choice was Lord Falconer of Thoroton as shadow Lord Chancellor and Secretary of State for Justice, who served ministerially in that position in Tony Blair’s cabinet. Corbyn has also appointed Catherine McKinnell MP, a solicitor, as Shadow Attorney General, and Karl Turner QC as Shadow Solicitor General (according to some sources; others report him as being merely a shadow justice minister). Former DPP Keir Starmer QC MP is not one of the new law officers or justice ministers, despite having been tipped to be: instead, he will serve as a shadow Home Office minister.
One of Corbyn’s first acts, announced this week in the Morning Star, has been to appoint shadow justice minister Baron (Willy) Bach to head a review into legal aid cuts. The cuts represented an “assault on fair access to justice” with “disastrous” consequences:
“This has resulted in many of our fellow citizens, often the poor and marginalised, not being able to get advice or representation when they are faced with legal problems such as housing, welfare benefits, debt and employment.”
Lord Bach was previously Shadow Attorney General (following the resignation of Emily Thornberry over the so-called “white van” tweet: see Weekly Notes – 21 November 2014). He urged a review of legal aid cuts back in June this year, according to Politics Home.
Recording encounters with officialdom
For many parents caught up in public family law proceedings, a major issue is the accuracy of evidence of what happened in meetings with social workers. Some parents have sought to back up their own version by recording such interviews and then using the recording either as an aide-memoir, or more controversially relying on it in evidence to contradict the notes and recollections of the social workers on disputed issues.
At the Transparency Project’s one-day conference in June (Is the Child Protection System Fit for Purpose?) it became apparent that both parents and social workers were confused about whether and what it was lawful to record and whether such recordings could be used in evidence. The issue was subsequently written up by one of the journalists covering the conference: see Louise Tickle, “Social workers under scrutiny as parents capture sessions on camera” (Guardian).
The Transparency Project decided to research the matter in more depth and sent a Freedom of Information request to all local authorities in England and Wales, asking whether they had any policy in respect of parents’ recording meetings with social workers, or any plans to develop one, and if so what it was. The results have now been written up by Lucy Reed, in a post entitled “How do Local Authorities approach parents who want to record meetings?“
The significance of the sometimes antagonistic relationship between parents and social workers was underlined by another investigation carried out by the Transparency Project, into the possible unintended effect of adoption targets.
Few could sensibly disagree with the argument that once a decision is made that a child should be adopted, the child should not have to wait years to find a permanent home. However, ‘adoption targets’ (first introduced following Tony Blair’s review of adoption in 2000) have taken on a more sinister meaning over the years. Basically, it is suggested that the push to speed up the adoption process is leading to a distortion of the decision whether or not to recommend it in the first place, and biasing the system towards meeting the growing demand for children to adopt, at the expense of natural parents’ interest in being helped and supported in bringing up their own children.
In a collective post entitled “Lies, damned lies and statistics“, members of the Transparency Project team examine the evidence, such as is it, for these assertions, and the allegations sometimes made in the press and, in more extreme form, aired on parental discussion forums concerning the local authority care and family justice systems. Is the drive to get children out of state care and into adoptive families having an impact on decision making in care proceedings?
Dates and Deadlines
The Law Commission’s Codification of Sentencing
Talk by Professor David Ormerod QC, Law Commissioner for Criminal Law and Evidence, as part of Politeia’s series with BPP University, A Free Society Under the Rule of Law, on Monday 19th October, 6.30 – 7.30 p.m. at 68-70 Red Lion St, London WC1R 4NY
Law (and injustice) around the world
Google’s appeal against global RTBF order fails
The Commission Nationale de l’Informatique et des Libertés (CNIL) ordered Google in May to apply search engine index delistings pursuant to the “right to be forgotten” (pursuant to the ECJ ruling in Google Spain) not only to the company’s European domains such as google.co.uk or google.fr, but to the search engine’s global domain google.com. A report in The Guardian states that Google had filed its appeal in July on the grounds that the order would impede the public’s right to information, was a form of censorship and “risks serious chilling effects on the web”. But CNIL said in a statement:
“Contrary to what Google has stated, this decision does not show any willingness on the part of the CNIL to apply French law extraterritorially. It simply requests full observance of European legislation by non European players offering their services in Europe.”
Google has approximately a 90% market share of search in Europe, making it the primary focus of RTBF rulings and data watchdog attention.
Can man in wheelchair be hanged?
Abdul Basit has been on death row for seven years in Faisalabad, Pakistan, for a murder he has always denied. Whilst in jail, he contracted meningitis, as a result of which he is paralysed from the waist down and confined to a wheelchair. Nevertheless, the death penalty demands his death by hanging, according to The Times. Whether or not he deserves this, the fact remains that to hang a man in a wheelchair is not only inhuman and degrading but possibly against the local prison regulations. In a last minute development, reported by Clive Stafford-Smith in International Business Times, it seems:
the medical officer and the jail authorities have finally agreed that the execution cannot be carried out without violating the prison rules. They have notified the Punjab government, who must now amend the rules to allow the execution of a paraplegic man if they are to see Basit executed.
Teenage offender to be crucified
Prisoner Ali Mohammed al-Nimr is facing death by crucifixion in Saudi Arabia, for an offence committed when he was 17 years old. He went to an anti-government protest in the Saudi Arabian province of Qatif. He was accused of carrying a firearm and being involved in robbery – to which he confessed after allegedly being tortured, according to News.com.au.
His sentence is due to be carried out by beheading and crucifixion, a method that involves removing the head of the prisoner and tying their headless body to a cross. If that isn’t cruel and unusual it’s hard to think of what is. However…
In other sick news:
Saudi Arabia was recently welcomed by the US State Dept as head of the UN Human Rights Committee in a development that many will view with dismay, if not outrage, as Glenn Greenwald reports in The Intercept. The decision has caused indignation across the world. See The Daily Beast, Why Is Saudi Arabia Heading a UN Human Rights Council Panel?
See also, The Times of India, Fury after Saudi Arabia ‘chosen to head key UN human rights panel’
“Piggate”: this week’s not entirely serious story
This week’s recipe on Masterchef: the legal bloggers edition appeared to be Tête de porc farcie à la mode Cameronique, as commentators attempted with a straight face to outline the possible legal consequences of an act which David Cameron is alleged, in a new biography by Lord Ashcroft, to have performed when a student at Oxford by way of initiation into the Piers Gaveston Society. The act in question involved genital penetration of the mouth of a dead (and probably cooked) pig.
Whether the story is true or not seems of secondary importance, though Louise Mensch (in her Unfashionista blog) was keen to point out that Lord Ashcroft may well have “bought a pig in a poke” (as the saying goes) when engaging co-writer Isabel Oakeshott to conduct this sensitive area of research. Mensch accused her of making a pig’s ear of it and producing a load of hogwash.
No doubt a rasher act is hard to imagine, of a man destined to be a great politician, but hindsight is a wonderful thing, as trotters out of such proverbs ought to know.
And so to the law.
- Myles Jackman, an expert on sexual offences, asks in The Independent, Is it illegal to have sex with a dead pig?
- Dan Bunting, of the UK Criminal Law Blog, asks Is it illegal to f*!k a pig?
Both point out that sexual intercourse with an animal, contrary to section 69 of the Sexual Offences Act 2003, requires penetration of the anus or vagina of the animal; and that penetration of a corpse, contrary to section 70, requires the corpse to be of a “person” and this does not currently include animal. The fact that a photograph is said to exist of the incident means it might engage section s63 Criminal Justice and Immigration Act 2008 which makes it an offence for a person to be in possession of an extreme pornographic image, but that would depend on the image being both extreme and produced “solely or principally for the purpose of sexual arousal” (rather than, say, blackmail, or for the archives of the student society, etc). Finally, both commentators discuss the possibility of “outraging public decency” at common law, and suggest it would depend on the facts whether the quite stringent criteria were satisfied.
I might just add, in the context of inserting genital protuberances into parts of dead animals, that the early history of condoms involved frequent use of dead animal tissue, such as bladders or intestines, usually but not exclusively from sheep, so there could be many instances of poke-in-a-pig in days of yore.
That’s quite enough for now. If I have time I’ll add some more photos or an update in the next few days.
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent any views of ICLR as an organisation.