Weekly Notes: legal news from ICLR – 6 November 2015
Posted on 9th Nov 2015 in Weekly Notes
This week’s roundup of legal news and events covers Pro Bono week, litigants in person, investigatory powers and freedom of information, plus human rights and inhuman wrongs from around the globe.
Attorney General kicks off annual celebration
The start of the 14th National Pro Bono Week was marked on Monday 2 November by a speech by Jeremy Wright QC, the Attorney General, who remarked that this important annual national event had first been organised by the Attorney General’s domestic committee in 2002. He said:
The aim of National Pro Bono Week is not only about raising awareness about the importance of pro bono through a series of events around the country, but it is also about showcasing the numerous ways in which pro bono has made a difference.
By way of example, Jordans’ Family Law have been running a series of “Day in the life” features about individual barristers and their pro bono activities, including this one by Lucy Reed, who tweets as @Familoo, writes the Pink Tape blog, and is chair of the Transparency Project.
The Lord Chancellor, Michael Gove, has recently suggested that big City firms of solicitors should “do more” by way of pro bono but this week the leader of the Opposition, Jeremy Corbyn, told the Solicitors Journal that “charity was not the solution” and
‘Society cannot survive on charity, goodwill, and food banks. It has to rely on the basis of a welfare state that ensures that no one falls into destitution, and a legal system that ensures no one goes unrepresented in the courts.’
Litigants in person
Unaided, and unequal to the trial
The plight of those who struggle to represent themselves in court for want of legal aid has been highlighted in an article by Louise Tickle in The Guardian. “I have panic attacks when I see my ex”: fighting for custody after legal aid cuts
She looks at a number of cases in which parents who have split up, sometime amidst allegations of violent abuse, are now engaged in legal battles over the fate of their children. What are traditionally referred to as “custody battles” but should in the more neutral parlance of today’s legal terminology be described as disputes over the care and residence of children.
Louise Tickle writes sensitively about the way legal aid cuts have left often vulnerable litigants high and dry, an issue of particular relevance during pro bono week, but not one that pro bono can by itself solve, or even some of the other voluntary initiatives she mentions, such as a local family court information website. The problem is more fundamental than that, as the president of the Law Society, Jonathan Smithers explains:
On rough figures, he says, the government has removed half a billion pounds from civil and criminal legal aid. “You can’t make that up with free legal advice. Lawyers will do a few hours pro bono maybe, but what you won’t get is someone to take on a complicated case. No one would argue for a pro bono dentist or doctor: if you want proper professional legal advice, there’s a cost.”
There has been considerable debate about the extent to which cutting legal aid has simply increased the costs and workload of the court system, and turned highly qualified (and expensive) judges into front line caseworkers. A recent letter from Peter Glover, a district judge, to the Law Society Gazette says:
“most district judges I know have, particularly in family and children cases, doubled time estimates to accommodate the need to explain process to, and deal fairly with, LiPs.”
It may be that we are simply going through an awkward transition towards some brave new dawn in which family law problems are all solved with online dispute questionnaires by Amazon.law or via mediation sessions conducted in neutrally toned locations with ambient new age music in the background – but frankly I doubt it. When people are this upset with each other they need the law to reduce their inchoate grievances to a set of rationally debatable issues, and that’s not something they can usually manage themselves.
Here’s a couple of recent examples of how out of hand things can get when fired-up litigants lack the lawyer’s detachment necessary to put their case into a negotiable perspective.
In H v Dent  EWHC 2090 (Fam) Mrs Justice Roberts dismissed as hopeless an application by the father of a 10-year-old girl, in respect of whom he was in a contact dispute with the girl’s mother, to have the mother’s solicitor and two social workers committed to prison for contempt. He seems to have been assisted by two McKenzie Friends in making this hopeless application, which says something about the value – or otherwise – of non-qualified advisers.
In Veluppillai v Veluppillai  EWHC 3095 (Fam) Mr Justice Mostyn castigated what he described as the “extreme litigation misconduct” of the self-represented husband in a dispute over ancillary relief. He had bombarded the court with emails, many of them threatening and offensive, and refused to disclose the extent of his assets for the purposes of the proceedings. The only McKenzie in his case was the name of the road in which one of the disputed properties was located (7 McKenzie Way, Epsom). The judge concluded that Mr Veluppillai’s conduct was so egregious as to justify lifting the anonymisation which might otherwise apply to the published judgment under the rules, since “It is in the public interest for his conduct to be exposed”. He also made a civil restraint order and sent the file to the police for them to consider whether the threats in his correspondence involved the commission of a criminal offence.
UPDATE 9-11-15: James Davies on the Tiny Revolutions blog discusses the effect of legal aid cuts in cases involving domestic violence: Domestic violence victims are being let down because of legal aid cuts
Draft bill published, consultation begins
The government this week published its draft bill for the Investigatory Powers Bill, after a certain amount of pre-launch spin and anticipatory criticism. In some ways, it seems it may not be as draconian as people thought it would be (for example, a degree of judicial supervision, or at least review, has been catered for), but in others it is even more so. However, the law does need to be clarified in this area, since it appears that the security services, police and even local authorities have been using or abusing powers of surveillance for years without proper regulation. Moreover, the current legislation, so far as in force and enforced, is out of date, given technological advances, so any new Act will replace much, but not all, of the Regulation of Investigatory Powers Act 2000, as well as the Data Retention and Investigatory Powers Act 2014 (DRIP – which was rushed through in indecent haste last year).
There has been plenty of comment elsewhere, along with amusing headlines such as “She Snoops to Conquer” (ie Theresa May, the Home Secretary), so rather than add our tuppenny-worth, we’ll simply list some of the more useful commentary from others:
- First, the draft bill itself can be read here (via Home Office): Draft Investigatory Powers Bill
- Cian C. Murphy & Natasha Simonsen, UK Human Rights Blog: Interception, Authorisation and Redress in the Draft Investigatory Powers Bill – a good general introduction to the key issues.
- David Allen Green, in the FT: The politics behind the new Investigatory Powers Bill – on the draft Bill’s pre-launch publicity (from the government) and the risk of people simply “nodding along” without taking in the full implications of what they are signing away.
- Joshua Rozenberg, These internet surveillance powers risk undermining the judiciary – on the role of the proposed new Investigatory Powers Commissioner and the judicial commissioners who will approve warrants.
- Independent Reviewer of Terrorism Legislation: Putting Parliament in Charge – who says “The best thing about the Bill is that it puts Parliament in charge.”
- Paul Bernal on his blog says: Let’s have that mature debate they keep saying they want (but don’t really) – on the repeated failure of those who seek wider powers of surveillance to discuss the matter with those who question their need to do so.
- The Conspicuous Chatter blog: The juicy bits
- Simon Jenkins in the Guardian: The surveillance bill is as big a threat to state security as to individual liberty
- Pam Cowburn on the Little Atoms blog : New Snooper’s Charter will define relationship between the state and citizens for a generation
- Jenna McLaughlin on The Intercept / Unofficial Sources: Europe, Still Angry at U.S. Spying, Prepares to Increase Its Own – offers a European perspective, Britain being not the only European state seeking to increase its powers of surveillance while the EU takes issue with USA over extent of its surveillance of European data.
- AL’s law blog, Anderson and surveillance: RIPA is still the law – and it’s being broken – reminds us (from last June) that GCHQ has been at it for years and why, under Theresa May’s new “snooper’s charter” (the draft investigatory powers bill), she will be seeking to legalise something she claims is perfectly legal already – but really isn’t.
- Tom Whitehead, Security Editor in the Daily Telegraph, Town hall staff to face two years in prison for abusing spying powers under new offence – on how local authorities are abusing their surveillance powers and the welcome regulation the new Bill would bring.
Freedom of Information
Nothing to hide?
One of the more telling comments made in the initial debate about the draft Investigatory Powers Bill in the House of Commons came from a Conservative MP, Richard Graham, who appeared to be channelling Goebbels (Michael Deacon observed in the Telegraph) in saying: “If you have nothing to hide, you have nothing to fear!”
As several people later commented on Twitter, if that was the case, why was the government so keen to introduce limitations to the Freedom of Information regime?
As to that, the Independent Commission on Freedom of Information: has called for evidence in relation to
the uncertainty around the Cabinet veto and the practical operation of the Act as it has developed over the last 10 years in respect of the deliberative space afforded to public authorities. The Commission is also interested in the balance between transparency and the burden of the Act on public authorities more generally.
Independent Commission on Freedom of Information, Post point 9.54, 9th Floor, 102 Petty France, London, SW1H 9AJ
Confessions of a Barrister
A new book claims to expose the truth about life at the Bar – according to a report in the Daily Mail. The book, written by a “criminal barrister” (or rather, giving him the benefit of the doubt, a barrister practising criminal law) under the pseudonym Russell Winnock, describes a world of widespread sexism (which we knew) and drug taking (specifically cocaine-snorting) which, if true, has replaced the excessive drinking of yesteryear afternoon.
According to the book, barristers also seem to be curiously addicted to “hottest lawyer” lists, which naturally gave the Daily Mail (in its more serious current affairs dominated “Femail” section) an opportunity to print lots of pictures of Amal Clooney of no particular relevance to the article.
If we can get hold of a copy, we’ll review the book itself properly here in due course. However, the appearance of a gavel on the cover does not bode well.
Dates and Deadlines
Held by the Bar Council, at Lincoln’s Inn, London, Saturday 21 November 2015 from 9.30 am.
“Send for Paul Temple”
World premier of the play by Francis Durbridge, Middle Temple Hall, Sunday 15 November 2015, at 6.30pm
Presented by the Kalisher Trust, which encourages and supports talented students wishing to pursue a career in advocacy.
Click for further details.
Crime museum now open
The Museum of London at the Barbican currently has an exhibition of objects on display from the Metropolitan Police’s legendary crime museum until 10 April 2016. You can win tickets by entering a competition run by Obiter at the Law Society Gazette here.
Human Rights Essay Competition
The Law Society is inviting law students, trainee solicitors, pupil barristers and junior lawyers (current, prospective or inbetween stages) to enter the annual Graham Turnbull essay competition. This year’s essay title is: ‘A most radical recommendation? Should interception warrants be judicially authorised or does there need to be democratic accountability?’
This is very topical in view of the launch for consultation this week of the draft Investigatory Powers Bill (see above). Winners will receive £500 and runners up £250 book tokens.
Law (and injustice) from around the world
Secular publisher hacked to death
Recent incidents suggest an almost total lack of enforcement of any right to freedom of expression of anything to which that religious extremists choose to take exception. Recently, a publisher of secular books was hacked to death, and two writers and a publisher were stabbed in another incident, in Dhaka, according to The Guardian.
At least four atheist bloggers have already been murdered in the country this year. It’s not clear whether the attacks have been organised by local Islamist groups or ISIS, though it seems a long way away from ISIS’s usual stamping grounds.
President’s visit prompts calls for human rights challenge
This week the President of Egypt, Abdel Fattah al-Sisi, who seised power in a military coup, visted the UK and had talks with the Prime Minister, David Cameron. However, calls for al-Sisi to be challenged over the abysmal record of abuse of human rights in his country (including many incidents reported here, such as the prosecution of journalists just for doing their job) were overshadowed by the crisis in security arising from the destruction, apparently by a bomb, of a Russian airliner flying out of the Red Sea resort of Sharm el Sheikh.
Human Rights Watch had published an open letter to David Cameron saying
“President al-Sisi presides over the worst human rights crisis in Egypt in decades. Given the scale and gravity of these human rights violations in Egypt, we urge you to press President al-Sisi, privately and publicly, to take immediate and concrete steps to end them and to ensure that Egypt adheres to its international legal obligations”
But in the end the dramatic developments surrounding the downing of the jet and the news that investigators believed it had been caused by a bomb – suggesting the involvement of ISIS groups active in the Sinai area – meant the human rights issues raised by HRW and others did not probably get as much coverage or discussion as they might have done.
True to form, that unwavering comforter of the comfortable and afflictor of the afflicted, Katie Hoptkins (apparently now a Daily Mail columnist), had a helpful message for whingeing Brit holidaymakers unable to get home from the Egyptian resort at the end of the half-term hols: Katie Hopkins tells Brits stranded in Sharm el-Sheikh: “You bet your family’s life for a cheap tan” as reported by the Daily Mirror.
Whatever we think of what she says, the minute we start saying she shouldn’t be allowed to say it, we make ourselves no better than a military dictatorship that locks up investigative journalists. Just chew your tongue and choke your rage. Voltaire is said to have said something similar.
Law Reform Commission recommends allowing Third-Party Funding for arbitration
The Hong Kong Law Reform Commission having reviewed the relevant law published a Consultation Paper on 19 October 2015 proposing that third party funding (TPF) for arbitration claims should be permitted under Hong Kong law. TPF involves a “third person” to the proceedings providing financial “assistance or support to a party to” the Proceedings, in exchange for a share in the proceeds of any successful claim. Third party funding of litigation is permitted in various jurisdictions, including England. The question is whether it should be permitted in relation to arbitration in Hong Kong, by amendment of the Arbitration Ordinance.
Basic rights suspended in state of emergency
President Abdulla Yameen has declared a state of emergency in The Maldives, suspending all basic rights and givingthe security forces sweeping powers to arrest suspects before a major anti-government rally planned later this week, according to the Guardian. The protest has been organised by the main opposition Maldivian Democratic party (MDP), whose leader Mohamed Nasheed is in jail following his conviction earlier this year under anti-terror laws,
The Guardian notes that:
“The Maldives has suffered acute political instability for several years, but a new cycle of chaos and unrest appears to be intensifying.
Pistorius appeal – prosecutors want murder
The television in the changing room at the sports centre where I swim has abandoned its daily diet of Jeremy Kyle and Heir Hunters for the live coverage on Sky News of gripping (ish) courtroom scenes from South Africa, where prosecutors, led by Gerrie Nel, are contending that Oscar Pistorius’s conviction for culpable homicide should be upgraded to murder. The appeal, to the Supreme Court of Appeal, turns on the legal principle of dolus eventualis, which the trial judge was said not to have taken properly into account.
That’s it for now. My thanks to all who led me to stories, mostly my followees on Twitter. And acknowledgments to David Musgrave, whose artwork “Animal”, photographed in Tate Britain, is reproduced here.
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.