Weekly Notes: legal news from ICLR – 27 February 2015
Posted on 27th Feb 2015 in Weekly Notes
This week’s tasty collation of legal news from home and abroad includes a global law summit and its discontents, a local lawyer-led lay-friendly family court information service, a couple of ministers short of a portfolio, and a quick data packet on net neutrality.
Global Law Summit
Delegates pay cash for access
If you had £1,500 to spare this week you could have attended the so-called “Davos of law”, as former Attorney General Dominic Grieve rather embarrassingly termed it; more formally known as the Global Law Summit, in which the Government attempted to yoke the 800th anniversary of Magna Carta to a sumptuous marketing promotion of the present day English civil justice system, as available to moneyed litigants from home and abroad.
The vulgarity of this exercise was highlighted in the promotion of its “Business Services Exhibition” with an image (above) of the golden statue of Justice with sword and scales, as she stands on the dome of the Central Criminal Court , accompanied with the embarrassing slogan “Business in great”. According to the blurb:
The Business Services Exhibition is integral to the Global Law Summit. It will host a range of carefully selected business services and trade organisations designed to help your business become more productive, profitable and competitive.
If you think this all seems a long way from an historic granting of rights and recognition of the rule of law, then you are by no means alone. The event drew protests not just from a coalition of opponents outside the Queen Elizabeth II Conference Centre, in Westminster but even from some of the official delegates and speakers within.
The Lord Chief Justice, Lord Thomas of Cwmgiedd, in his keynote speech, pointed out that
“obstructions to justice are a denial of justice as Magna Carta teaches” and spoke of the need “to secure effective funding for those with limited means where a legal help is needed to vindicate or enforce rights”.
Tony Cross QC, chairman of the Criminal Bar Association, echoed the view that access to justice was the fundamental pillar of a free society.
“Without proper funding there can be no access to justice,” he added. “It is rather ironic that while we sit here in plush surroundings, if we scratch beneath the surface of our criminal justice system, there is a significant number of our citizens being denied access to justice.”
Lord Pannick QC was yet more outspoken, using his platform to criticise the Lord Chancellor’s attempts to reduce the scope for judicial review of government decisions:
‘Mr Grayling acted in this way because he said, and I quote: ‘judicial review has become a promotional tool for countless left wing campaigners’. I hope that this summit will send a message to Mr Grayling. My message to him is that if you wrap yourself in the Magna Carta – as he does – you are inevitably going to look ridiculous if you then throw cold water on an important part of its legacy, that is, judicial review.’
Demands of justice viewed as “red tape”
As a symptom, perhaps, of the government’s view of the law’s utility or otherwise to commerce, how about this remark from a speech by Matthew Hancock, Minister of State for Business, Energy and Enterprise, giving the Future of Manufacturing speech to the EEF, 26th February 2015:
Our action on red tape has included cutting employment tribunals by 80 percent, freeing thousands of firms from unnecessary inspections. It’s part of a wider drive to remove unnecessary burdens.
What employment tribunals do is to allow workers to bring complaints about unfair treatment, sexual harassment etc against their employers. They ensure that employers treat their workers fairly. But recently the fees were suddenly hiked up and, in consequence, the number of cases brought miraculously dropped away. The raising of court fees to fund the court process may be justifiable, within reason; but the use of fees simply to inhibit the use of the court process seems an altogether more sinister proposition. Hancock’s naïve announcement made clear that the government’s purpose was nothing to do with the demands of austerity or sensible management of the court system. It was simply to block access to justice, because having to answer for their mistreatment of workers in a court or tribunal would amount to tiresome “red tape” for profit-hungry bosses.
In the same way, for a government to have to answer for its decision-making process in a court during judicial review proceedings would likewise be a bit of tiresome red tape which it would be nice to do without.
See also: Maximiliam Hardy, Counsel of Perfection blog, ‘To Anyone Will We Sell Justice’ – The Repudiation of Magna Carta on the commercial commodification of English law and the turning of our courts into a forum shopping mall.
Not the Gobal Legal Summit
Protesters object to “height of hypocrisy”
Meanwhile, outside the conference centre, an effigy of Chris Grayling was being paraded about while speakers who had shunned the plush and smugness of the legal love-in within spoke out angrily about the contradiction between the principles of Magna Carta and what the government was currently doing to the legal system.
‘Not the Global Law Summit’, organised by the Justice Alliance, marked the end of a three day ‘Relay for Rights’, during which campaigners walked 42 miles from Runnymede, where Magna Carta was sealed in 1215, to Westminster.
For a full report on these events, see Mary-Rachel McCabe in The Justice Gap, ‘Law without justice is like a body without a soul. It’s a dead letter’
See also: Solicitors Journal:
Not the Global Law Summit bangs drum for access to justice
For a pictorial tweetment, see this Storify version (Storification?) of the events of the day: NotGLS2015
Also this image, via Twitter. Hat tip to I forget whom. (let me know and I’ll acknowledge.Ta.)
Family Court Information
New lay-friendly website set up by family lawyers
A group of family lawyers based in Bristol, with the support of the designated family judge for the area, HHJ Wildblood QC, have set up a public information website aimed at people who are or may become involved in a case in the Family Court in the Bristol, Gloucester and Bath area. The Family Court Information site provides answers to frequently asked questions, such as “What alternatives are there to court?”, “I don’t understand how courts work” and “I need support at court” which bewildered people with no previous experience of the family justice system may need to ask, as well as more sophisticated information about claiming legal aid, using online resources, approaching organisations who help Litigants in Person, and so forth.
It’s clean, clear and easy to use – a triumph of transparency, if you will. Moreover, it is an entirely independent voluntary venture, encouraged by judges, but nothing whatever to do with or done by the Courts Service or Ministry of Justice or even the much-vaunted “all joined up” Gov.uk site. (On the latter, when I searched for “family court help” the top result I got was from HM Revenue and Customs, though there were also hits for legal aid, court fees and, er, the Land Registry. That’s how joined up – or mixed up – it is.)
Although there are plenty of independent (ie non-government) sources of information about family justice, nearly all of them are ultimately advertising a service which may or may not be free, rather than simply setting out useful information. Typically, they are solicitors’ firms, McKenzie Friend organisations (some professional, some voluntary) or things like the Citizens Advice Bureaux (which are overstretched already). My researches on this have not been exhaustive, but the Family Court Information site does seem to fulfill an existing need, and although aimed mainly at users in the Bristol, Gloucester and Bath area, much of the information is sufficiently generic to be useful to users anywhere in the country.
Regular readers of this blog will not be surprised to learn that two of the leading lights behind this initiative were Lucy Reed (who writes the Pink Tape blog) and Sarah Phillimore, both of St Johns Chambers in Bristol. Not content with founding and contributing to the Transparency Project, which promotes opennness and public understanding of the family justice system, they have put its ideas into a practical solution for local court users. As it seems likely that practitioners or support organisations in other areas may be interested in setting up something similar, the group in Bristol are now looking at the idea of marketing what they have created for other groups to buy or license the setup. If you’re interested, get in touch.
US Regulator votes to keep broadband public
On 26 February an executive board of the U.S. Federal Communications Commission, a telecommunications regulator, voted to approve reclassification of broadband as a public utility.
Great. So what does that actually mean?
This is the problem, because most people have only a (sometimes dangerously) vague notion of how the internet actually works. It’s been called the information superhighway, but it’s also an information super car-park, or super library. It’s a postal service that sends you letters as soon as they’re written and a tv advert you can’t fast forward and a gossip column you can’t avoid and a shrieking child in the next room and … all sorts of things we never knew we would miss if they weren’t there and quite a few we wouldn’t miss at all. It’s far from perfect, but is it the best we can have?
Whatever it is, the internet isn’t a self-sustaining organism. It needs people and companies to manage the data which it stores, retrieves and distributes. And it needs people and companies to hook up all the connections between people and data. For most users, the point of access is via your internet service provider (ISP). The FCC has imposed, or maintained, three principles which govern the commercial operation and management of internet access and data delivery by ISPs:
No blocking – of legal content on the internet. (What isn’t legal is a matter for lawmakers, presumably. )
No throttling – of some data to give preference to other data: all data must be allowed to flow equally.
No paid prioritisation – no special fast lanes for business-class users or indeed red bus lanes which slow down traffic for the rest of us.
While many criticisms can be made of content on the internet, on grounds of illegality, immorality, breach of copyright, poor taste or defamation, there is a strong groundswell of opinion to the effect that a free and open internet, for all its faults, is better than one controlled by people who think they know better. People who support internet freedom have created and signed up to, inter alia, this Declaration of Internet Freedom. It is not the first such declaration or charter, and probably won’t be the last. But internet freedom should not be confused with network neutrality, which is more concerned with the way the content is delivered, not what it contains.
What if the FCC has gone the other way? The proposition was to allow certain providers (ISPs) to grant internet “fast lanes” (prioritised access) to certain companies, such as Disney, or Netflix, who pay more for the privilege (thus, I assume, “throttling” rival content). This would countenance a form of discrimination, in favour of big business, which is fundamentally at odds with the democratic essence of the internet as a neutral system. A neutral net does not discriminate between one packet of data and another: it is blind to wealth, class, privilege, education etc. All the distinctions governments find so difficult to eradicate in the real world, funnily enough.
So. The FCC drew back from the brink on this occasion. Might they be tempted towards it again in the future? What would tempt them to do so? And if they did, would that only affect American users, or the whole net?
The term “net neutrality” was coined by law professor Tim Yu of Columbia University. He argued that a level playing field favours innovation, which would otherwise be stifled. But critics argue that requiring networks to treat all traffic the same might also stifle beneficial enhancements for consumers, such as the option to pay extra for a faster access to streaming services, which in turn might make it financially attractive for providers to build better infrastructure and so improve their service for all users.
The arguments over net neutrality may continue. But as Julia Powles argues in an informative piece in The Guardian, Net neutrality is only the beginning of an open internet. Ideally it should be
a truly open, distributed network where everyone’s fundamental rights are respected. Not having our access providers acting as interested gatekeepers may be a step in the right direction, but it is by no means an end. Many other distortive factors remain and we will not have an open space until we get rid of them all.
See also Vox, What is Network Neutrality?
Atlantic, The Ultimate Net-Neutrality Reading List
Cash for asses
Serving and former ministers resigned to folly
Sir Malcolm Rifkind has announced that he will stand down as Conservative MP for the Tory safe seat of Kensington after making what he called “errors of judgment” in a cash-for-access scandal, following revelations aired on Channel 4 Dispatches and reported in the Telegraph that he and Jack Straw, the former Labour Lord Chancellor and Secretary of State for Justice, had proffered political influence to a fictitious Chinese company for money. What’s worrying is the readiness of the two ministerial high flyers to fall for such an easily detectable “fake sheikh” style moneytrap.
Rifkind has also resigned as chairman of parliament’s intelligence and security committee (ISC). The ISC said it had decided not to appoint a replacement chair until after the general election as it had already completed its last inquiry of the session – into privacy and security following the revelations by US whistleblower Edward Snowden of mass surveillance.
Incidentally, a film about Snowden, CitizenFour was aired on Channel 4 this week.
Of course, it’s ironic that the technique used against Sir Malcolm – secret filming of a private meeting – is exactly the sort of security service activity over which, in other hands, his committee has scrutiny. What prize intelligence, eh?
See also: Paul Bernal, Rifkind of the ISC…
(Centre for European Legal Studies, 27 March 2015, Cambridge.)
Confirmed speakers/panellists include Professor Artemi Rallo Lombarte (former Director of the Spanish Data Protection Authority), William Malcolm (Senior Privacy Counsel at Google), Eduardo Ustaran (Partner, Hogan Lovells), David Smith (UK Deputy Information Commissioner) and Professor Dr. Johannes Caspar (Hamburg Commissioner for Data Protection and Freedom of Information); Willem Debeuckelaere, President of the Belgium Privacy Commission, and Julia Powles (see item above), University of Cambridge.
(Transparency Project, 1 June 2015, details following.)
Multi-discliplinary conference to discuss the different views and perspectives from experts, lawyers, social workers, parents and care leavers in an attempt to re-position the current unhealthily polarised debate around the child protection system. Among those taking part are Dr Lauren Devine of UWE, who is currently undertaking research into the evidence base for our current system, and ,Brigid Featherstone, co-author of ‘Re Imagining Child Protection’. The event is sponsored by St John’s Chambers, Bristol.
(Law Society and Bar Council, 9 March 2015, Middle Temple Hall)
A cross-party debate sponsored by the General Council of the Bar and the Law Society.
Participants include The Rt Hon Lord Falconer QC, The Rt Hon Dominic Grieve QC MP, Professor Robert Hazell CBE, Stephen Hockman QC, Lord Marks QC, Dinah Rose QC, Blackstone Chambers (chair); Roger Smith OBE, solicitor, Anthony Speaight QC, Lord Wallace of Tankerness QC.
Legal Aid Lawyer of the Year award
Do you know a legal aid lawyer who deserves a medal?
Nominations are invited for the LAPG Legal Aid Lawyer of the Year Awards 2015. The deadline is Monday 27 April 2015. Details from Legal Aid Practitioners Group.
See who won last year: #LALY14
Macbeth on Trial
Silks take part in mock trial play
Four top QCs and journalist Jeremy Paxman are to take part in a mock trial of Shakespeare’s iconic character Macbeth for charity Shakespeare Schools Festival this month. The QCs will star alongside Shakespearean actors David Oakes and Hayden Gwynn and a twelve-strong jury headed by Paxman.
Bafta award-winning screenwriter Johnathon Myerson wrote the witness statements and worked on plot development. The show will take place at the Noel Coward Theatre in London on 8 March.
Quebec judge bans hijab
In a curious exaggeration of the issue which in Europe has focused on the wearing of the full-facial veil or niqab, a judge in Montreal refused to hear a case on the grounds that the applicant, a Muslim woman, was wearing a headscarf in court. Judge Eliana Marengo apparently told Rania El-Alloul that the courtroom was a secular place and that she was not suitably dressed. As quoted in CBC News, the judge said:
“The same rules need to be applied to everyone. I will therefore not hear you if you are wearing a scarf on your head, just as I would not allow a person to appear before me wearing a hat or sunglasses on his or her head, or any other garment not suitable for a court proceeding.”
Article 13 of the regulations of the Court of Quebec states: “Any person appearing before the court must be suitably dressed.” But it makes no reference to headwear, religious or otherwise.
- In another example of religious insensitivity in court, which appears to have been caused by human error, a case in Liverpool, England was discontinued after it became clear that a Muslim had been given a copy of the New Testament, instead of the Koran, upon which to swear. As reported in the Telegraph, it later transpired that the man had been perfectly happy to swear on any holy book, and the judge erred in stopping the trial.
Democratic Republic of Congo
Rebel leader’s war crimes aquittal confirmed
On 27 February 2015, the Appeals Chamber of the International Criminal Court (ICC) issued its judgment confirming, by majority, Trial Chamber II’s decision of 18 December 2012 acquitting Mathieu Ngudjolo Chui of charges of crimes against humanity and war crimes.
The alleged former leader of the Front des nationalistes et intégrationnistes [National Integrationist Front] (FNI), was acquitted, on 18 December 2012, of three counts of crimes against humanity arising out of a massacre during an attack with another rebel leader at the village of Bogoro in 2003, and for using child soldiers, murder, sexual enslavement and rape during ethnic conflicts at the time.
For more details see:
- Announcement by International Criminal Court
- Jelia Sane, on Opinio Juris, Mathieu Ngudjolo Chui: reflections on the ICC’s first acquittal
Grounds for concern: or Wake up and smell the coffee
Famous for being advertised by the film star husband (right) of human rights lawyer, Amal Clooney (see Weekly Notes – 30 January) Nespresso coffee machines enjoy the reputation of providing (as they do in my house) the delightful taste and aroma of freshly brewed coffee without the inconvenience of faffing around with bean grinders and filter papers and the like. To do this, they use a capsule system for which the manufacturer, Nestlé, has filed many patents.
It’s part of a long-running dispute between the former CEO of the Nespresso division, Jean-Paul Gaillard, and his former employer. Mr. Gaillard started up a rival company the Ethical Coffee Company offering biodegradable capsules.
He adds that the market for coffee capsules is apparently EUR 13 US billion dollars annually, of which Nestlé apparently have a CHF 4 US billion.
Clearly the loss of any key patents could dent significantly Nestlé’s share of the market.
That’s it folks! Enjoy the weekend, and don’t forget to sign up for weekly Case Law Updates. Click here for last week’s alert.
And don’t forget to vote in our 150 Years of Case Law on Trial poll, about to commence its second period, from 1915 to 1945. Jazz age flappers, suffragettes, fascism and communism – it was a period of social and political turbulence, bounded by two world wars. And in the courts, a number of landmark cases which still resonate to this day.
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.