Weekly Notes: legal news from ICLR – 1 July 2016
Posted on 3rd Jul 2016 in Weekly Notes
This week’s roundup of legal news and commentary includes the art of law and the law of art, a legal regulator’s perverse promotion of unregulated legal services, the law in Wales and some information about the law of information. With all this and more, we hope you’ll enjoy a virtually Brexit-free blog post.
The Body of Law
This is the title of a wonderful exhibition of the drawings of Isobel Williams, an artist who has been given permission to draw in the Supreme Court during its hearing of appeals. The exhibition is at Senate House in Malet Street, London, until the end of the month.
This image shows the artist next to the picture (based on the Supreme Court’s emblem) from the “image rights” case of PMS International Ltd v Magmatic Ltd  UKSC 12;  Bus LR 371, concerning the Trunki ride-on suitcase, heard in 2015.
The other cases which have inspired drawings range from a shipping case involving “a stricken cargo vessel, a bilge alarm and a rogue mop head” (Versloot Dredging BV v HBI Gerling Industrie Versicherund AG, heard in 2016 and judgment not yet given but reported below:  EWCA Civ 1349;  QB 608), a dispute over the title to a Scottish baronetcy (In the matter of the Baronetcy of Pringle of Stichill  UKPC 16;  WLR (D) 314 heard by their Lordships sitting as the Privy Council) and a case about stalking (Hayes v Willoughby  UKSC 17;  1 WLR 935).
You can see all the images on this PDF, and many are discussed further on Isobel’s own blog, Drawing from an Uncomfortable Position, where Judith Townend, of the Institute of Advanced Legal Studies, who organised the exhibition, asks her about her law-based images.
Judith has also written her own post about the exhibition, with some of the pictures, on the Talking Humanities blog.
As well as the drawings which she was permitted to make in the Supreme Court / Privy Council, there are also drawings made from memory (because you can’t draw in the lower courts) of the hearings in Winchester Crown Court of the prosecution against Stephen Gough, or the Naked Rambler as he has become known, in December last year. In one of them
Matthew Scott is, on this occasion, the naked barrister. He cast off wig, gown and official court status when the Naked Rambler made a late decision to represent himself – which he was then not allowed to do, as he refused to cover himself in front of the jury.”
Scott, who was then invited to act as amicus curiae, has blogged about the absurdity of the case on his Barristerblogger site, in posts such as Who is more ridiculous: the Naked Rambler or the CPS?
the problem is with an Anti-Social Behaviour Order that turns an eccentric into a criminal, and a prosecution system that could easily turn a blind eye, but which prefers instead to try to break the will of a harmless and astonishingly courageous man.
Among the other artworks, Willliams has exhibited some relating to a project in which Hannah Thompson, Senate House Library sound artist in residence, has been creating sound installations. You can read more about this on the Senate House Library blog.
The Body of Law, is on the second floor of Senate House, University of London, Malet Street, London WC1E 7HU. It is part of the Institute of Advanced Legal Studies’ public engagement programme, www.ials.sas.ac.uk. Open until the end of July, Mon-Fri 9am-8.30pm, Sat 9.45am-5.15pm.
Regulation, Regulation… er, Unregulation
The Legal Services Board, the regulator of legal regulators, stoked controversy again this week by appearing to promote unregulated legal services, or at any rate implying that they might be just as good if not better than those provided by the regulated professionals whose regulators it was responsible for regulating.
On 28 June the LSB published the findings of its latest Unregulated Providers Research, commissioned from consultancy Economics Insight (EI) and announced that
The LSB’s 2016 individual legal needs survey indicated that the size of the unregulated sector is smaller than originally thought. This new research suggests consumers are using unregulated providers for a number of reasons, including:
– lower prices compared to regulated provider
– higher levels of transparency in pricing, and
– higher levels of innovation and service differentiation
Unregulated providers represented approximately 5% of providers from whom paid advice and assistance is sought to address a legal problem. The slice of the unregulated sector with the highest proportion of for profit unregulated provision was family, where unregulated providers represent just over 10% of individuals getting a divorce.
This last point certainly chimes with anecdotal experience of so-called “professional” McKenzie Friends in the family courts, which have been the subject of a recent consultation by the judiciary and the target of a good deal of genuine professional criticism, eg by the Bar Council. Another area where unregulated providers (often misleadingly describing themselves as “lawyers”) operate is landlord and tenant law, as Giles Peaker, best known for the Nearly Legal blog explains on Legal Voice, Clients are at risk of getting burned by straw ‘legal services’ providers.
This ambiguity as to the status of unregulated providers is something Legal Futures noted when reporting on the research, saying it had
found that a significant proportion of consumers were unaware of the regulatory status of their provider – and indeed EI said that in conducting the research it found it difficult, on occasion, to determine whether a provider was regulated.
The idea that unregulated alternative providers are either cheaper or more transparent is not one the professional bodies are likely to accept, particularly when balanced against the risks of something going wrong. By way of example, let’s take wills and estates providers. The following illustration shows part of the LSB’s infographic on this, which you can download here.
It appears to show that, on average, an unregulated provider will charge you £136 to write you a (presumably fairly basic) will, as opposed to the £176 that a regulated and insured professional would charge. That’s right. You save £40. And your estate is worth? And if something goes wrong, whom do you sue and are they good for the money? Do they even have insurance? It’s a bit like doing your own conveyancing. Perfectly feasible, and you might save a few hundred quid, but when you’re dealing with a property worth hundreds of thousands of pounds is it really worth the risk?
Commenting (that is probably too mild a term) in the Law Society Gazette (Throw consumers to the wolves. It’s cheaper), John Hyde remarked:
Of course the unregulated legal sector is cheaper. That’s why it’s such a danger to clients. […]
For this, dear readers, is the ultimate conundrum: a super-regulator that speaks up for the unregulated, a body tasked with protecting consumers that thinks nothing of sending them out without protection, an organisation paid for by solicitors that seems to be on an almost relentless mission to undermine them.
And when he says that
Solicitors are trapped in a vicious circle: ordered to conform to costly regulations and then lambasted for high costs when they do
he might add that barristers face the same problem. In short, he concluded, the LSB’s research was a “dereliction of [its] duty to protect consumers”.
UPDATE: see also this rant, inspired by the experience of seeing a McKenzie Friend acting in a criminal case, by the blogger Crimbarrister: Goodbye Mr McKenzie!
Law in Wales
Law Commission updates
The Law Commission published its final report and recommendations on The Form and Accessibility of the Law Applicable in Wales and has presented them to the Welsh government. It addressed the difficulties, post-devolution, of determining what (often divergent) law applies and when it comes into force in Wales, and what functions and powers were transferred to Welsh ministers and bodies and when, and recommends a better approach to legislation applying to Wales in future. Among the recommendations is codification of significant areas of the law in Wales and betters ways of drafting legislation in both Welsh and English. You can read the report here.
Another project under way with the Law Commission is on Planning Law in Wales. This week the commission published its scoping paper for a consultation, which is open until 30 September 2016. The aim is to consolidate and simplify the existing law of planning in Wales. This coincides with and is informed by the project on The Form and Accessibility of the Law Applicable in Wales (see above).
ICO issues annual report 2016
The Information Commissioner, Christopher Graham, steps down after seven years in post, declaring, in his final report,
We have delivered on our objectives, responding to new challenges, and preparing for big changes, particularly in the data protection and privacy field.
The Information Commissioner’s Office’s (ICO’s) mission is to uphold information rights in the public interest, promoting openness by public bodies (including via FOI requests) and data privacy for individuals. Issues over the last year have included:
Big data breaches such as that at Talk Talk. Acting on newspaper allegations about charity fundraising methods that breached data protection and privacy law. Taking part in the debate on surveillance and security and the Investigatory Powers Bill. And, in its responses following the Schrems Judgment, with all the implications for transatlantic data flows, the ICO’s influential counsel has helped to avert a meltdown.
Key stats include:
- 16,388 – data protection concerns received
- 194,728 – helpline calls answered
- 161,190 – numbers of concerns received about nuisance calls
You can READ THE FULL REPORT here (PDF).
FOI – Tribunal appeals
In its report dated 16 June 2016, the Commons Select Committee on Justice, when pursuing its inquiry into the effect of the recent changes in tribunal fees, also supported the recommendation of the Independent Commissioner on Freedom of Information in its report, issued in March 2016, (Recommendation 17, page 43) that merits appeals from the ICO to the First Tier Tribunal (General Regulatory Chamber) should cease, though appeals on a point of law would continue to be available to the Upper Tribunal. See para 28.
Part of the justification for removing this avenue of appeal was the sheer number of unmeritorious appeals brought by disgruntled requesters. No doubt fuller reasons and evidence is presented in the Independent Commission’s report. But given how easy it is for public bodies to drag their feet over providing information on an FOI request, transparency may well suffer if this avenue of appeal is removed. You can see a table of current appeals on the Gov.UK site (found via Google).
Dates and Deadlines
Temple Employed Bar Forum
18 July 2016, 17:30 – 20:00
BOOKING (free) for benchers, barristers, pupils and students of Inner Temple and members of the other Inns.
Law (and injustice) from around the world
ICC sentences politician for war crimes
Congolese politician Jean-Pierre Bemba was sentenced to 18 years in prison by the International Criminal Court last month, for heading a 2002-03 campaign of rape and murder in neighboring Central African Republic, according to Reuters:
Bemba, a former Democratic Republic of Congo vice-president, is the first person that the global war crimes court has held directly responsible for his subordinates’ crimes. Judge Sylvia Steiner said troops from the Movement for the Liberation of Congo (MLC), which Bemba directed, had acted with “particular cruelty” when they rampaged through the neighboring country in support of then-president Ange-Felix Patasse. […]
Bemba had armed his troops and then paid them so little that they were spurred to pillage, Steiner said. He had made only token attempts at disciplining them, in order to deflect international attention the crimes were drawing.
Copyright in photos of public domain artworks
According to Ars Technica, a Berlin court has ruled that digitising paintings that are in the public domain creates new copyrights, even if the intent is to create a faithful image rather than produce an artistic interpretation.
The case was brought by the Reiss Engelhorn Museum (REM) in Mannheim, Germany, against the Wikimedia Foundation and Wikimedia Deutschland—the local German chapter of the global Wikimedia movement—over 17 images of the museum’s public domain works of art, which have been uploaded to Wikimedia Commons. The Reiss Engelhorn Museum asserts that copyright applies to these particular images because the museum hired the photographer who took some of them and it took him time, skill, and effort to take the photos. (In effect, therefore, the photographer created a new work, whose copyright was presumably assigned to the gallery. At any rate, not itself put into the public domain.)
Commenting on his reasons for bringing the claim, the museum’s director said that while he sympathised with Wikimedia’s objects, “ the question for us is who should decide whether and especially how our holdings should be made available.”
You can read Wikimedia’s point of view on their blog here: Wikimedia Foundation, Wikimedia Deutschland urge Reiss Engelhorn Museum to reconsider suit over public domain works of art
In essence, they say it is the museum’s mission to make the work available and other museums do so, both on their own websites, and on other free ones like Wikimedia.
You can see all the affected images (on Wikimedia Commons). They include, appropriately enough, a drawing by Michelangelo, of Moses (the law giver). It’s not reproduced here out of respect for the German court’s decision, though Wikimedia say they will appeal it.
New chapter in EU accession process
Hurriyet Daily News reports that Turkey’s stalled European Union accession process is set to move forward with the opening of a new chapter on financial and budgetary provisions on June 30 as promised to Ankara in return for its cooperation on stemming the flow of refugees from Syria. Chapter 33 will be the 16th chapter to be opened as part of the country’s accession process. There are still five chapters being blocked by Greek Cyprus. As HDN explains:
Turkey and the EU agreed on a plan to stem the flow of hundreds of thousands of Syrian and non-Syrian refugees in March, in exchange for the rekindling of Turkey’s accession process, an additional 3 billion euros in aid to be used toward meeting the needs of Syrian refugees and visa-free travel to Schengen countries for Turkish citizens. With the deal, Turkey started taking back migrants on March 20, while the EU started taking one migrant from Turkey for every one returned from the EU as part of efforts to reduce deadly illegal crossings across the Aegean Sea.
The deal has a hit a stumbling block, however, as the aforementioned benchmarks include an EU demand that Turkey alter its draconian anti-terror laws, which have been used to incarcerate journalists and human rights advocates amid deadly fighting in the southeast.
President Recep Tayyip Erdoğan recently lashed out at Brussels for its treatment of Ankara, saying Turkey could hold a referendum to decide on whether to continue its accession process.
The R word is not calculated to calm European nerves in the wake of the UK vote, but on the other hand the remarks of UK Prime Minister David Cameron during the UK referendum debates, that Turkish membership was not “remotely on the cards” and “may not happen until the year 3000” will presumably be subject to revision in the events that have happened (if they have).
Court upholds net neutrality rules
A federal appeals court in DC has upheld the Obama administration’s net neutrality rules governing companies that deliver internet service to U.S. homes and businesses. As Amanda Lotz, Professor of Communication Studies and Screen Arts & Cultures, University of Michigan explains on Inforrm’s blog:
At the heart of the case was the Federal Communications Commission’s February 2015 Open Internet Order. It requires that everyone – whether they are individuals, small businesses or large corporations – must have equal access to the whole internet, just like everyone has equal access to the telephone network. Companies that provide internet service have fought against these rules. In addition to charging people for internet access at home, they hoped to earn even more money bycharging content providers for priority “fast lanes” for their traffic.”
But, she says, “this week’s D.C. Circuit Court of Appeals ruling establishes a level playing field for online information providers.”
The decision is likely to be appealed to the Supreme Court. In the meantime you can read the appeals court judgment transcript (technically I believe the “slip opinion”, until reported) in United States Telecom Association v Federal Communications Commission 14 June 2016 here (PDF)
That’s it for now. Our thanks to all who flagged up stories, via their blogs (which we always try to acknowledge) and via Twitter (where useful tweets are retweeted).
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.
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