Weekly Notes: legal news from ICLR – 11 March 2016
Posted on 13th Mar 2016 in Weekly Notes
This week’s selection of legal news and comment includes recent lectures by genuinely top judges Lord Thomas and Lord Neuberger, a review by the NAO of confiscation orders, and reports of some recent legal events.
Three recent lectures on topics of law, the courts and liberty.
“Developing commercial law through the courts” was the subject of the Fourth Bailii Lecture, given this week by the Lord Chief Justice, Lord Thomas of Cwmgiedd, at an event hosted by Freshfields Bruckhaus Deringer in their offices just off Fleet St. The lecture will eventually be available on the BAILII website, but in the meantime, here is a summary based on my live tweeting of the lecture as it was being delivered (with apologies for the inevitable shortcomings).
Lord Thomas’s theme was the importance of the courts engaging with questions of law arising in the course of commercial dispute resolution, and the need to avoid cases involving such points being syphoned off into arbitration. The contribution of English commercial judges to the development of the common law had been immense. But there were real challenges from rival centres of litigation, such as Dubai, Singapore, New York and other places. If London was to retain its position as a major centre for commercial litigation, then it should also remain the place where commercial law continued to develop. That depended on the courts having a good supply of cases.
But in the 1970s the relationship between the courts and arbitration had changed fundamentally. No doubt there had been concern at the risk that the system could be abused – lengthy hearings at every level, excessive cost and all the uncertainty of prolonged litigation. The procedure whereby appeals from arbitration went to court by way of special case stated was contributing to the problem. So the 1979 Arbitration Act changed the procedure [under the 1950 Act] to focus on dispute resolution rather than the development of law. Its effect was to reduce the scope for appeals. The 1996 Act was better but the threshold for intervention by the courts was still too restrictive. The diet of cases going to the courts had been reduced and a great source of development of the law had been truncated. The inclusion of and reliance upon an arbitration clause was now the default position.
No doubt for the vast swathe of cases arbitration was still better. But undoubtedly some cases were better decided in court. It was in the interests of business and of London as a centre for litigation that we should develop our commercial law.
UPDATE: the lecture is now available from the Judiciary website here (PDF).
Justice Innovation Programme Lecture
Lord Neuberger of Abbotsbury, President of the UK Supreme Court, gave the Justice Innovation Programme Lecture for the Northern Ireland Assembly Committee for Justice in Belfast on 7 March, the text of which has now been made available on the Supreme Court’s website (PDF). In it, he addressed (inter alia) what he called ‘the vexed question of access to justice in an age of austerity’ and the need to make the best use of streamlined procedure and digital innovation to achieve this.
But he began by describing the creation and role of the UK Supreme Court, notably in correcting judge-made law where it had gone wrong, or bringing it up to date with modern conditions, before addressing the question of whether the UK presently has a constitution (which in turn depended what one meant by that term). In answer to his perceived critics, he said this (paras 14-15):
“14. I have been criticised in some quarters for saying that the UK does not have a constitution. The short answer to that point is, as it is with so many arguments, that it depends what you mean by a constitution. On any view, the UK does not have a coherent or embedded constitution; it has some constitutional conventions and some quasi-constitutional statutes, and they are conventions and statutes which can be changed or repealed by Parliament. People often refer to Magna Carta and the 1688/9 Bill of Rights as being part of our constitution, but, over the years, almost all the provisions of Magna Carta have been repealed and all the provisions of the Bill of Rights have been repealed or amended, by a simple majority in Parliament.
15. Because we have parliamentary sovereignty and no embedded constitution, the judges have no power to overturn parliamentary legislation (save to the extent that parliament gives them that right). The UK is very unusual in having no formal constitution: only New Zealand and Israel are in the same position among democratic countries. So, whenever people in the UK read about “unelected judges” thwarting the will of democratically elected parliament, they should remember that, unlike countries such as the USA or Germany, we do not have a judiciary like they have, judges who can (and not infrequently do) quash laws approved by both democratically elected houses and a democratically elected president.”
He described the present climate on issues such as human rights and the European Union as “feverish” and declined to get involved too deeply save to observe that
“it is clear that human rights are going to remain part of our constitutional set-up, whether through the European Convention on Human Rights or through a British Bill of Rights – or indeed both.”
As for the UKSC, it “does what it says on the tin” – people knew where it was and that it contained “top judges” – but his Lordship quailed at the prospect of them achieving the same level of notoriety as US Supreme Court justices.
The UK Supreme Court was, he said, a modernising court. It was more open and transparent than its predecessor. People visited it and it had now become a tourist attraction, with guided tours which had earned a very decent 4.5 star rating on TripAdvisor.
He had some good advice in respect of IT projects, which ambitious procurement managers would do well to heed: First, “get an off-the-shelf system” rather than a “bespoke” solution. The court had begun with the latter and it had not been a good experience. The second time round, they found something much better. Secondly, be prepared to adapt your current working practices: “the notion that IT always has to be designed to fit working practices, and working practices should never be adjusted to fit with IT is wrong”, he said. (Again, I think all of us may be able to think of examples, where long usage and time honoured tradition – “but we’ve always done it that way!” – make a nonsense of what might otherwise be a perfectly logical system.)
FA Mann Lecture
“On Liberty” was the subject of the 39th FA Mann Lecture, given by Shami Chakrabarti at Middle Temple Hall on 7 March. We don’t have access to a copy of the lecture but will provide a link and summary as and when we do. In the meantime, we simply note that Shami Chakrabarti, a barrister and member of Middle Temple, has announced that she will be stepping down as director of Liberty after more than twelve years. She joined in 2001 and was appointed director in 2003. She will remain in post until a successor has been chosen. Until I read this article in The Guardian about her and her role, I had no idea that the founding president of Liberty was EM Forster, who apparently called defending civil liberties ‘the fight that is never done’. I suspect Shami Chakrabarti has not done yet and will continue the fight in other way, other places, after she leaves. (Now where is the the text to that lecture?)
The National Audit Office has issued a progress review on confiscation orders, which are the principal way the state seeks to deprive criminals of the fruits of their iniquity. The plan is to put into effect the notion that “crime does not pay”. But a previous review by the NAO, in December 2013, found that it was the system of confiscation orders that did not pay, since “the process was not working well enough and did not provide value for money”. Since then, the Committee of Public Accounts in 2014 held a hearing and published its own report, which
similarly concluded that the various bodies involved in confiscation orders had failed to put an effective system in place, that not enough confiscation orders were being imposed, and that not enough was being done to enforce orders once they had been imposed.”
So the question is, have things got better? Some progress has, apparently, been made, but according to the NAO “the system has not been transformed”. Sanctions for non-payment have been strengthened, there has been a 16% increase in confiscated income in two years (amounting to £22m more) but “many of the fundamental weaknesses in the system identified two years ago remain”. And the total debt remaining to be collected from confiscation orders already made is still a STAGGERING £1.61bn.[Image via Lewis Nedas Law, Confiscation Update.]
Legal Voice conference
A report on the Legal Voice conference and workshops, which took place at Freshfields Bruckhaus Deringer’s offices on 1 March, was posted last week by Jon Robins. The report was written up by Catherine Baksi, Fiona Bawden and Jon himself. It covers workshops on such topics as the use of social media, funding (including crowd funding) for legal advice and services, and using volunteers and students to provide free assistance.
You can read it here (Legal Voice).
Judicial Assistant diaries
Last week we had our first public glimpses into the somewhat rarefied world of the Supreme Court by way of a day’s worth of tweets from one of the current batch of judicial assistants (JAs) working there. (See Weekly Notes – 4 March.)
This week was the turn of his colleague Jacob Turner, who wrote two posts on the UK Supreme Court blog, A week in the life of a judicial assistant (parts 1 and 2).
The purpose was at least in part to let potential applicants for the annually renewed posts know what it might involve, and perhaps to drum up a bit more business in the way of applications, which close later this month.
BSB advice on sexual harassment
The Bar Standards Board has issued advice on “What you should do when an allegation of sexual harassment has been made against a member of chambers, a member of chambers’ staff or against any other person whose conduct chambers may have some responsibility for or influence over (including instructing solicitors).”
Read the advice (PDF)
Dates and Deadlines
LawWorks and Attorney General Student Awards
Nominations are now open for these awards, with a closing date of 20th March. The awards celebrate the best pro bono activities undertaken by law students and law schools in the following categories:
- Best contribution by an individual student;
- Best contribution by a law school (undergraduate and postgraduate);
- Best contribution by a team of students; and
- Best new pro bono activity.
The awards include the Access to Justice Foundation award for an educational body or student who has made a significant contribution to promoting access to justice.
The winners of the LawWorks and Bar Pro Bono Unit Law School Challenge will also be presented with an award at the event on 28 April.
Details via Law Works
“Justice denied? The experience of unrepresented defendants in the criminal courts”
Launch of research, led by Transform Justice and conducted with the help of the Institute for Criminal Policy research, and with support from the Criminal Bar Association, which explores the numbers of people representing themselves in criminal proceedings, the reasons why, and their court experience when they get there. There will be presentations from speakers including
- Penelope Gibbs, Director of Transform Justice
- Mark Fenhalls, Chair of the Criminal Bar Association
- District Judge Tam Ikram
- Gillian Hunter, Senior Research Fellow at the Institute for Criminal Policy Research
Tuesday 26 April 2016
The Bingham Room, Gray’s Inn
Law (and injustice) from around the world
Sharing economy law
A bill, said to be the first of its kind in Europe, has been proposed in Italy which tries to provide an overall legal framework to acknowledge and foster those “disruptive” or “collaborative-based business models” which are generally categorised as forming the “sharing economy”.
The full title of the bill is “Regulation on the digital platforms for the sharing of goods and services and provisions for the promotion of the sharing economy” – which is a bit of a mouthful. In the Bill, “Sharing economy” is defined as an “economic system generated by the optimization and shared allocation of space, time, goods and services through digital platforms”.
For more on this, avoiding the risk of my misleading you out of ignorance, please read a more expert view via The IP Kat blog
Freedom of press under threat
At the start of the month, Turkey’s biggest daily newspaper, Zaman, owned by Feza media group, which had been supportive of a prominent Muslim cleric Fethullah Gülen, who was critical of the government of President Erdogan, was seized and its editor in chief removed. “Appointed trustees” then took over the management of the paper and on 6 March its first edition under the new management appeared, with an editorial line marvellously supportive of the government.
“In less than 48 hours, the new admin turned seized Zaman into a propaganda piece of the regime in Turkey,” Sevgi Akarcesme, the editor-in chief of Today’s Zaman, an English-language sister publication, tweeted.
Since then, a number of bodies have protested. According to the Guardian, the New York-based Committee to Protect Journalists (CPJ) has written to President Erdogan and prime minister Ahmet Davutoğlu, complaining that press freedom in “under siege … with increasing numbers of journalists in jail, violence against journalists on the rise, and critical news outlets officially harassed or obstructed”, and registering its “dismay” at the takeover of the Feza media group.
Human Rights Watch has also complained, its senior Turkey researcher, Emma Sinclair-Webb saying:
“The Istanbul court’s decision to appoint trustees to run Zaman newspaper and other media is nothing but a veiled move by the president to eradicate opposition media and scrutiny of government policies”.
Meanwhile, Reporters Without Borders (RSF) has urged the EU to
“show all the necessary firmness in response to the attacks on media freedom in Turkey There can be no question of resuming EU accession talks while Ankara visibly tramples on basic European values. If the EU continues to yield to blackmail regarding migrants, it will give the impression of abandoning the principles on which it was founded.
But with the EU wanting Turkey to play along with its ambitious plan to swap refugees who have made it to Greece back to Turkey, in exchange for an equal number that have remained in Turkish refugee camps without making the perilous crossing to the isle of Lesbos, the fate of journalists and press freedom is likely to get less prominence in the minds of EU negotiators.
That’s it for now. My thanks to all who led me to stories, mostly my followees on Twitter.
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.