Weekly Notes: legal news from ICLR – 26 June 2015
Posted on 29th Jun 2015 in Weekly Notes
This week’s tour d’horizon of legal issues covers a ministerial speech and its reception, a legal uprising, approval for a flawed scheme of advocatory accreditation, more tales of thwarted transparency, and a majority decision of the US Supreme Court making the Constitution fit for pride. Apologies for late posting – due to a Microsoft-enabled file loss issue. (Recovered eventually.)
UPDATED 30 JUNE 2015
Gove LC delivers first speech
Cautiously welcomed, except by legal aid lawyers
The initial message was a good one. The new Lord Chancellor and Secretary of State for Justice appeared to have read his brief with care and given some thought to his role and responsibility. Speaking at the Legatum Institute on What does a one nation justice policy look like?, Michael Gove identified problems and offered solutions, though these did not address all the problems.
He did not say that the problems had in large measure been caused by the policies of his predecessors, Ken Clarke and Chris Grayling (as well as those in the previous Labour government, whose investment in court services and technology had been derisory compared with, say, the mountains of cash poured into schools and hospitals). Instead, he praised them for what they had “already achieved”, which must have left few heads in the room unscratched.
Gove was not afraid to bang the historical drum which seems to be all the rage with top Tories these days. Essentially, it’s a run-through of that old music-hall satire by Flanders & Swann which goes
“the English, the English, the English are best,
I wouldn’t give tuppence for all of the rest”.
Here is Gove on the common man’s guide to the common law:
In these islands we are fortunate that the rule of law is embedded in our way of life. An Englishman’s word is his bond, his home is his castle and Jack’s as good as his master. The principles that contracts should be honoured, property rights respected and all are equal before the law are customary – the deep fabric of our culture.
So put that in your pipe and smoke it, Johnny Foreigner! Curiously, for the nation that “invented” human rights (according to Cameron), the English seem to have been quite parsimonious in allowing everyone to enjoy them. Instead, Gove has to spin such extensions as the abolition of slavery, Catholic emancipation, the removal of discrimination against Jewish citizens, and women’s suffrage as heroic acts contributing to “making us who we are”, ie a people who “afford equal protection to all”. Well, eventually, and up to a point, Lord Copper.
So, to business. Gove concedes that, in spite of all the Edwardian picture-book triumphalism,
“not every element of our justice system is world-beating. While those with money can secure the finest legal provision in the world, the reality in our courts for many of our citizens is that the justice system is failing them. Badly. […]
it is also undeniable that our courts are trapped in antiquated ways of working that leave individuals at the mercy of grotesque inefficiencies and reinforce indefensible inequalities. […]
Were Mr Tulkinghorn to step from the pages of Bleak House or Mr Jaggers to be transported from the chapters of Great expectations into a Crown Court today, they would find little had changed since Dickens satirised the tortuously slow progress of justice in Victorian times.
The solution, he said (as the murmurs of admiration for his citation of Eng Lit classics died down), would be to streamline procedure, reducing the number of pre-trial hearings attended in person at court, instead using phone and email; and to improve technology to enable cases to be filed online and even settled by some form of online dispute resolution. These proposals reflect (one assumes) consultation with, and appear to adopt suggestions already published by, among others, the Lord Chief Justice, Lord Thomas of Cwmgiedd, on better technology; by Lord Leveson as President of the Queen’s Bench Division, on streamlining criminal procedure; and by Professor Richard Susskind, on the scope for online dispute resolution.
We could speculate as to how any implementation of the proposals would impact on the administration of justice, but Gove (in his capacity as chairman of the ministerial communications style council) has outlawed the use of the word “impact” as a verb. Quite right too. As top legal editors, we shudder at poor spelling and grammar, shy away from infelicitous expressions, and avoid clichés like the proverbial plague (oops). [See Independent, Here’s Michael Gove with some very detailed instructions about grammar]
The reaction in the media
The Lord Chancellor’s proposals were the subject of discussion later the same day on BBC Radio 4’s Law in Action, when Joshua Rozenberg interviewed Sir Stanley Burnton, a former Lord Justice of Appeal and author of the report Delivering Justice in an Age of Austerity; Dame Hazel Genn, Co-Director of the UCL Judicial Institute; and Sir Keir Starmer QC, former DPP, who is now a Labour MP. While the first two were cautiously positive, Keir Starmer rather disappointingly failed to address the questions as a lawyer and instead just made party political points essentially saying it was all too little too late.
Both on this programme and elsewhere in the media, most commentators not automatically soured towards this government or the MOJ seemed to agree that the change in tone was encouraging, and that Gove had made a good start; but there were reservations about the likelihood of the proposals working as well as envisaged. It was important to separate improvements in technology, which were very long overdue, from the question of advice: technology can deliver information; but it can’t deliver advice, you need people, who cost money. However, it seems you can always get money out of the Treasury for technological development and IT projects, however wildly underquoted; what you can’t get money for is business-as-usual funding, eg for legal aid.
Incidentally: an assumption which was made repeatedly by the Lord Chief Justice on Law in Action, but which I would question, is that lawyers cost more now than they used to. The cost of proceedings may be greater, because of the way they need to be managed now, with all their hearings about hearings and satellite servings; but the hourly rates may not be greater in real terms, at least not on the high street for non-oligarch private litigants. That’s a hunch, though, and I would welcome statistical evidence on this subject.
There was further discussion of Gove’s proposals (particularly the suggestion that rich law firms should do more pro bono work) in the newspapers and on the blogosphere. Here’s a selection.
- Frances Gibb, in The Times: Gove tells lawyers that they must do more without charge
- Keir Starmer (again), in the Guardian, Gove is right on our two-tier justice system – but cuts caused this crisis reiterates his party political point that cuts by the previous (mainly Conservative) Coalition government caused the crisis, overlooking that Labour made plenty of cuts to legal aid in its time, and had no plans to restore them if it had been elected this time.
- Dinah Rose, in the FT Gove can rebalance British justice, is rather more hopeful, but takes Gove to task over his naïve plan to milk the magic circle firms for pro bono subsidy:
It is admirable that most city law firms should devote their resources, and the time of their highly paid lawyers, to public-interest work for which no one pays. But it cannot be a substitute for legal aid; the volume of cases is too great, and commercial lawyers’ expertise is not generally in the right areas.
- John van der Luit-Drummond in Solicitors Journal echoes her views in If Gove gets his way the public will have to rely on the kindness of lawyers
- Steve Wedd, The Brighton Brief, in Oil in the CJS writes an open letter to Gove identifying a number of specific failings in the criminal justice system and urging him to take responsibility for them and it.
The reaction of the legal professions
Calls for direct action gather pace
Bill Waddington, chair of the Criminal Law Solicitors’ Association (CLSA), told the Law Society Gazette
‘Mouthing platitudes about inequality in the law and Magna Carta has absolutely no credibility while the Ministry of Justice is undermining a chance for level-headed reform.
The clear message after the election that the MOJ was not considering any u-turn on the planned further cuts to criminal legal aid funding and the introduction of the duty provider scheme has resulted in an equally clear message from front line criminal advocates in favour of direct action to make the MOJ change its mind.
A further planned 8.75% cut on publicly funded legal aid budgets for criminal advocacy comes into force next Wednesday (1 July). Lawyers in Liverpool have already vowed to refuse work after that date, according to the Gazette, and now they have been joined by practitioners in Cardiff and and Birmingham, with support from the Big Firms Group, an alliance of over 30 large criminal legal aid firms that do around 25% of criminal legal aid work. In the light of this growing support for direct action, London Criminal Courts Solicitors’ Association (LCCSA) and CLSA have extended their ballot on direct action until Monday at 10pm.
However, there is some confusion about the extent to which (outside Liverpool) barristers will join in the action. Following what some assumed was a ballot, and others maintained was merely a “survey”, the Criminal Bar Association (CBA) dropped its plans for direct action, announced by way of a statement on 18 June
“we will not call for barristers to forgo work in opposition to the scheme.”
But many members were not happy. That was because the vast majority of barristers who took part in a vote – 96% of 1,385 respondents – had backed days of action and no returns, which many considered more than sufficient to constitute a mandate for direct action. However, since only 35% of members took part in the CBA survey, mostly those at the younger end of the Bar, you could argue that the true support for action was not sufficient overall. Indeed, there have been suggestions that the more established end of the profession might actually benefit from fewer, larger solicitors firms handling police station and lower court work. (See Trouble at the Bar as CBA calls off direct action, by Jon Robins, Legal Voice)
In a personal message, chairman Tony Cross QC, said
In April the Executive mandated me to speak with Government. We also asked for your views via the survey. The survey was just that; it was not a ballot. However the survey has been and is of vital importance and forms part of the backdrop to our negotiations with Government. (Emphasis added.)
Interviewed by The Justice Gap, Michael Mansfield QC said It’s time for barristers to make a stand and strike
But, as Ian Dunt points out on Politics.co.uk (Baptism of fire: Gove facing de-facto legal strike )
Everything hinges on solidarity between barristers and solicitors – something which is rarely on display between the two groups. Solicitors are taking on more and more advocacy work, mostly to barristers’ irritation. And beyond the natural competition and animosity, justice secretaries have proven adept at encouraging division between the two groups.
The MOJ has for some time been pursuing a policy of divide and rule. But getting members of a fiercely individualist profession like the Bar to act in concert, let alone act in concert with solicitors, is a bit like herding cats. It would be ferociously effective if it can ever be achieved, as even partial collective action can be – such as the last time a no-returns policy was invoked – but it is hard to convince everyone of the collective benefit of doing so.
UPDATE 30 JUNE 2015
London solicitors will not act in lega laid cases after 1st July
After a meeting last night, solicitors’ firms have confirmed they will not act in Legal Aids cases after 1st July, as it will be uneconomical to do so to a required and acceptable standard. Other firms not present have indicated support, and the remainder are expected to follow suit. The independent Bar in London as represented at the meeting confirmed that they would not be prepared to undertake any work on any case with a Representation Order dated on or after 1st July in recognition of the damage that these cuts will have upon the Independent Bar. It was further proposed that the bar would re-introduce the No Returns policy for all existing cases in the Crown Court from the 1st July.
Read more: announcement from The London Criminal Courts Solicitors’ Association (LCCSA).
QASA – Supreme disappointment
LSB’s approval of scheme was “proportionate”
To add to the woes of the criminal Bar, on Wednesday 24 June the Surpreme Court gave judgment in Regina ( Lumsdon and others) v Legal Services Board  UKSC 40;  WLR (D) 270 in which it affirmed (for partly different reasons) the decision of the Court of Appeal  EWCA Civ 1276;  WLR (D) 413, which in turn had affirmed that of the Divisional Court  EWHC 28 (Admin), refusing judicial review of the decision to introduce and approve the Quality Assurance Scheme for Advocates.
The scheme is opposed by many barristers. In previous posts on this blog I have described it as deeply flawed. I remain of that view. But the Supreme Court, without examining what I regard as its deepest flaw (permission to appeal on that point was refused), has ruled that is “proportionate” as a response to the perceived mischief which it aims to cure, viz the variable standard of criminal advocacy. Indeed, the discussion of proportionality in EU law takes up much of the judgment of their Lordships and seems to go well beyond what was strictly necessary in this case, not necessarily to make a point about the case itself, as to indicate where the Court of Appeal apparently got it wrong.
For a more detailed examination of this, see Carl Gardner, on Head of Legal: Proportionality, at length: the Supreme Court’s “QASA” ruling
Transparency and tribulation
In a carefully worded but devastating blog post, Lucy Reed, family barrister of St John’s chambers in Bristol, author of the Pink Tape blog, and founder of the Transparency Project (which promotes clarity in family justice), took a well known journalist, Christopher Booker, to task over a somewhat ludicrous article he wrote in the Telegraph about the “missing mum” case of Rebecca Minnock.
Booker’s article was entitled When judges defy instinct, it is children who pay the price and in it he basically sets in opposition the idea of the rule of law and that, which he appears to endorse, of human and in particular maternal “instinct”. He essentially argues that the decision (which he attributes to the wrong judge) to place a child in the care of his father was so flawed that the mother’s decision simply to abduct her child and go on the run was a perfectly defensible reaction, and only those adopting the suspiciously quote-marked “lawyer’s view” would disagree.
On the whole, it’s deeply suspect in its reasoning but that isn’t why Lucy Reed complains. She accepts that Booker is entitled to express his opinion, however whacky, but takes him to task as a journalist for his factual inaccuracies which are all the worse because, at the time he wrote, most of the judgments about which he was commenting were freely available, and could easily have been checked. The whole point of transparency in the family courts, as promoted by Sir James Munby, President, was to avoid this kind of conspiracy-theory fuelled nonsense about secret courts and their perverse decisions. But cleaning or opening the window doesn’t seem to have improved the ability of some people to see what’s going on or explain it to others. (See Transparency: promoting public understanding of the law in the Internet Newsletter for Lawyers.)
Lucy’s post appeared on the Transparency Project blog, was widely tweeted and retweeted, and was re-posted on Inforrm’s blog, which promotes responsible media. If you care about journalism, or truth, or respect for the law, you should read it.
Human Rights – the 50 top cases
Rights Info’s exciting new bubble chart has landed
The Rights Info blog, founded by human rights barrister Adam Wagner of 1 Crown Office Row, was launched earlier this year to great acclaim. All the information is presented either as infographics, or communicated alongside carefully chosen images in simple bite-sized chunks, designed to be read not by lawyers but by ordinary people, even those with little learning or capacity for learning, yet without any loss of fidelity or, more importantly, accuracy.
Over the past month or so, it has been running a series of posts on 50 Human Rights Cases that Transformed Britain.
The cases have been counting down from 50 and have now reached No 1, the top case, A v Secretary of State for the Home Department  UKHL 56; (£)  2 AC 68;  2 WLR 87;  3 All ER 169, HL(E), on the fundamental issue of liberty. Unsurprisingly, this case is also among those chosen for ICLR vote, the selection of the top 15 cases in ICLR’s 150-year history, which we wrote about earlier this week.(see Case Law On Trial: 1996 to 2014)
To mark the completion of the project, the new page infographic takes the form of an impressive and colourful bubble chart (detail shown), showing the 50 cases distributed over a timeline since 1700, showing occasional historical events alongside the cases, the first of which was the abolition of slavery in Somerset’s case. As you hover over each bubble, the simple description of the case expands to provide a fuller summary with links to the “short story” version and to original material, including the judgment itself.
It’s a fantastic resource and fun to use.
US Supreme Court declares same sex marriage constitutional
But Scalia dissent gets all the attention (bless!)
The Supreme Court of the United States of America (SCOTUS) as it is known over there, has ruled in the case of Obergefell v. Hodges (26 June 2015) that
The Fourteenth Amendment [to the US Constitution, with its guarantee of the “equal protection of the laws”] requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.
Here’s a link to the slip opinion (first draft judgment, equivalent to the “green” in the UK Supreme Court) which contains, for our benefit, a syllabus (headnote).
There is also a lot of commentary on the SCOTUS blog, which is not an official mouthpiece of the court, but widely read and referred to nonetheless.
The case was discussed (in anticipation of judgment) by Carl Gardner on his Head of Legal blog: Same-sex marriage: the US, Europe and the Obergefell questions, and that might be a good place to catch up on the background and implications if this is new to you.
Though it is certainly, as Professor Erwin Chemerinsky puts it on the Scotus blog, A landmark victory for civil rights, it may not be a cast iron example of the application black letter law principles. (In American usage, it is anything but an “originalist” interpretation.) Here is Chief Justice Roberts (who dissented) winding up his opinion, and maybe some of his audience:
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
I respectfully dissent.
In the media, much of the commentary (and ire) has been directed towards another dissenting opinion, that of Justice Scalia. See, for example, Huffington Post: Antonin Scalia Dissent In Marriage Equality Case Is Even More Unhinged Than You’d Think.
However, like Roberts CJ, he has a point:
A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
Actually there are probably many other reasons for doubting the purity of American democracy, but the idea that the Supreme Court can not only strike down unconstitutional legislation but set up its own constitutional amendments (which Scalia J calls super-legislation) is indeed a bit rich. But is that what’s really happening, or is the majority view simply a reading of the constitution as an “always speaking” or “living” instrument? Not for me to say.
The strange network of assent and dissent can be gleaned from the following extract from the syllabus:
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined. ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined.
I’m not sure you’d ever see anything quite so complicated in one of ICLR’s reports of the UK Supreme Court or the European Court of Justice.
ICLR Online Version 2.5
ICLR Online v2 was launched last year to great acclaim. But we haven’t stopped there. We’ve developed a beautiful new design optimised for mobile and tablet devices, and to the benefits of our Unified Search for case law we’ve added the following new features.
Alongside our unified cases search, you can now find any case published by ICLR since 1865 by reference to its series and volume or year.
Search and display all current legislation as published and updated by the National Archives via www.legislation.gov.uk and download PDFs of whole Acts or individual sections.
Retrieve any case or legislation accessed during the current session, or add it to a bundle in the Briefcase function.
We’ll be writing more about this shortly: keep an eye on this blog.
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.