Weekly Notes: legal news from ICLR – 12 September 2014
Posted on 12th Sep 2014 in Weekly Notes
This week’s selection of legal stories from home and abroad includes the legal consequences of a Scottish schism, the half-life (or half-death) of privacy, and the effect of legal aid cuts and new court fees on access to justice. Plus a bumper roundup of global tales of law and injustice.
UPDATED: 15 September 2014.
Some other recent commentary of interest:
- September issue of Internet Newsletter for Lawyers
- Judicial consideration: a reporter’s guide to good law
The gathering strength of Yes vote predictions in recent polls seems to have taken even the Scottish independence movement by surprise, let alone the panicky No-sayers. But if Yes prevails, what might the legal and constitutional consequences be?
Scotland is already a different jurisdiction for criminal and some civil law purposes; but there are numerous statutes and treaties whose effect may need to be modified. The ramifications vary from the enormous (EU membership, currency etc) to the relatively trivial (country dialling codes, car number plates).
And then there’s the question of the weather (see picture). With Scotland excluded, the annual rainfall figures for what remains of the UK will apparently plummet. (Image via Scotiana.)
Two recent articles (among no doubt many) have been looking at these matters.
- Joshua Rozenberg, in The Guardian, Nine legal questions if Scotland votes yes
- And, rather more comprehensively, someone called Peter on The Blog That @PME2014 wrote, An Independent Scotland
See also: report of House of Lords Select Committee on the Constitution, on Scottish Independence: constitutional implications of the referendum (PDF)
More specifically, what about the health service? The Institute for Fiscal Studies wondered: The Scottish NHS – more financially secure outside the UK?
Of perhaps more parochial interest, research by Legal Cheek demonstrates that newly qualified lawyers in Scotland are paid better than their counterparts south of Hadrian’s Wall. (What have the Romans ever done for us? Er … )
Legal aid and access to justice
On the subject of legal aid cuts generally, the Guardian this week published this excellent infographic showing how spending has shrunk in certain key areas.
Legal Voice offered its own commentary on this in its Justice Watch blog.
Dramatic drop in employment claims
One of the harshest changes brought into effect last year was the imposition of new charges of up to £1,250 fees for employment tribunal claims. This has resulted in a 70 per cent drop in the number of claims, including sex discrimination claims (down by two thirds) according to figures released this week.
Justice minister Shailesh Vara welcomed the news with the usual bit about “hardworking taxpayers”, apparently unaware of the irony that hardworking employees might sometimes have a legitimate claim against hardgrinding employers (though, of course, every case must depend on its own facts). In response, the shadow Business Secretary Chuka Umunna said the fees had erected a barrier to justice and pledged, if in office, to overhaul the tribunal system and make it both free and more efficient. We shall see. Or not, as the case may be.
Report: The Independent.
Cuts in fees for criminal legal aid were the subject of judicial review proceedings heard this week.
The case brought by the London Criminal Courts Solicitors’ Association and the Criminal Law Solicitors’ Association contends that the decision of the defendant Chris Grayling, the Lord Chancellor and Secretary of State for Justice, (a) to reduce by 17.5% the fees payable in criminal court fees and (b) to reduce the number of duty soloicitor contracts from 1,600 to 525, was unlawful. The effect is likely to be that hundreds of law firms will have to close. But it is not the merits of the decision that are under the spotlight, so much as the process adopted by the Lord Chancellor, in breach of procedural fairness. In particular, he failed to disclose relevant reports relied upon in his decision making process to interested parties who opposed the decision, thus blighting the consultation process which he purported to conduct.
Report: The Guardian
To get a fuller picture of the claim, here’s a link to the claimants’ skeleton argument.
Now it seems the MOJ has found some more money for criminal legal aid work: there’s even talk of a U-turn, according to the Gazette, which reports that the MOJ will reintroduce fees for “cracked” trials that collapse because the prosecution decide not to proceed.
Access to justice campaign
Underlining the need to respond to the current crisis, the Law Society has launched its Access to Justice Campaign, according to the Gazette.
The campaign’s key goals include raising public awareness of the help still available, and persuading policymakers to make changes to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Chancery Lane will also support solicitors in making their products and services more accessible.
Among the effects of the legal aid cuts has been a surge in the number of Litigants in Person, particularly in the family courts, and (spotting a gap in the market) professional McKenzie Friends, the subjects of two more posts by Legal Voice:
- Justice Committee: Family courts struggle with surge in unrepresented litigants
- McKenzie Friends: A legitimate alternative post-LASPO?
Is privacy dead (or does it just smell funny)?
No week seems to pass without someone declaring the death of privacy – from hackers, from surveillance, or from social media apps that you thought would make your life easier, or more fun; and yet strenuous efforts are constantly being made to reassert it.
Paul Bernal, author of Internet Privacy Rights, writes here about The Resurrection of Privacy. If privacy has died (and it probably has), then it is not because we (ie users generally) intended it to do so, we merely allowed it to happen, through ignorance, laziness or simple unawareness. Thanks to Edward Snowden, we now know that covert government surveillance has gone much farther than we ever suspected it had or would go. Thanks to the “terror mandate”, it’s not likely to be drawn back anytime soon, either.
Yet it’s not just governments. Commercial organisations like Facebook and Google have systematically undermined our privacy rights, working either for their own interests (to monetise our preferences), or in cooperation with governments. Where the Stasi relied on citizen informants, today’s spook agencies need only harness the existing power and algorithms of internet businesses.
If a resurrection of privacy is possible (and Bernal thinks it is) then it will be through users’ interactions with these commercial organisations, on a wiser and more wary basis, and taking better advantage of such encryption and privacy options as are increasingly available.
There’s also an interesting discussion about all this on Keep Calm Talk Law in Chris Bridges’ piece, How Long Until Privacy Prevails?
Uses and abuses of investigatory powers
Nevertheless, the government agencies are not going to give up their powers easily. One of the most obvious examples of the lack of appetite to control government snooping was the relatively easy passage through Parliament (in just 8 days) of the Data Retention and Investigatory Powers Act 2014 (DRIP) under which contains sweeping and virtually untrammelled powers to retain personal data against a range of vague and supposedly imminent risks, ranging from paedophiles to terrorism.
See Julia Powles comment at the time: UK’s Drip law: cynical, misleading and an affront to democracy
We now have a copy of the letter sent by the Home Secretary, Theresa May MP, to Dr Hywel Francis MP, Chair of the Joint Committee on Human Rights, answering his comments on the legislation.
The letter asserts that DRIP built on the protections already afforded by an earlier piece of legislation, known as RIPA (the Regulation of Investigatory Powers Act 2000). But that piece of legislation has been in trouble recently over allegations, discussed by David Allen Green in his FT Blog, that the Metropolitan Police and others may be using the Act’s procedures, designed to protect society against terrorists et al, as a way of short-cutting to handy evidence for use in criminal trials, without much in the way of supervision.
See his recent piece, Are the UK police using RIPA to get around legal privilege?
Privacy and the Right to be Forgotten
On the subject (much discussed in various recent posts on this blog and elsewhere) of the Right to be Forgotten (by Google) – or at any rate the duty on Google to remove references to “inadequate, irrelevant, no longer relevant, or excessive” information about a person, pursuant to the decision of the European Court of Justice in Google Spain SL v Agencia Española de Protección de Datos (Case C-131/12);  3 WLR 659) – it seems Google itself, having initially complied by setting up a procedure enabling applicants to apply for index information to be removed, have been dragging their feet and complaining about having to act as a court or arbitrator of takedown requests.
See for example, this report in the Guardian of the response of the Spanish editor of Huffington Post on the subject, in which it states that
Google revealed on Tuesday that it had received 120,000 requests from individuals to remove certain links from the results of searches for their name.
Hold that thought. Now, Google has been taking a “roadshow” on the, er, road in various European cities, explaining its difficulty in coping with the onerous demands of the European Court’s ruling, as reported (with some inaccuracies) by Bloomberg in this clip.
However, Bloomberg rightly points out the enormous (greater than in the United States) market share Google enjoys in Europe, around 90 per cent of the search engine market, and they are “taking their battle to the court of public opinion”. And the media seem to be buying it, perhaps because they have an interest in NOT having content removed, which they would like to exploit themselves. Hence all their cries about “censorship”.
See also, Julia Powles, in the Guardian; Google’s grand European tour aims to map out the future of data ethics
As she points out, to put the “Right to be Forgotten” into context, that figure of 120,000 of takedown requests received so far based on personal privacy pales into grain-of-sand insignificance next to the 31 million per month takedown requests for copyright reasons. No one is howling “censorship” about them, now, are they?
Source: Google, Transparency Report.
Is legislation less readable?
Are statutes less readable than they were a hundred years ago?
According to Mathias Siems, of Siemslegal blog, they are. He found that the Gunning Fog Index, which is mainly based on the length of words and sentences, when applied to statutes passed a hundred years ago and compared with results for those passed now, demonstrated a readability quotient somewhat lower for our contemporary legislation than for that passed in the past.
As it happens, some of us at ICLR have been engaging with the National Archives legislation team (who manage the legislation.gov.uk website) in a Good Law project designed, inter alia, to remedy any such problem. One of its aims is to produce a resource designed to assist in the drafting of legislation. This will be achieved in part by mining the data of the entire Statute Book, past and present, and cross-checking it for amendments in later statutes, and judicial consideration in case law, with a view to producing wordings that withstand the tests of time and the judiciary – or, in other words, which are self-evidently clear about their purpose and effect.
This week’s slightly silly story…
… is also rather shocking.
Cite relevant case law, or else: Judge orders self-represented litigant to be given electric shock
Washington Post reports that Judge Robert Nalley, becoming impatient with the submissions of a self-representing defendant, Delvon L King, in a gun possession case, ordered a deputy sheriff to administer a shock to King via a remote-controlled black box (the Stun-Cuff) strapped to the defendant’s ankle.
The judge said that King was apparently being rude and “citing case law that did not apply to his case”.
A subsequent investigation by the Charles County Sheriff’s Office concluded that Judge Nalley and the deputy sheriff concerned had not acted improperly in resorting to the use of electric force. But Paul B de Wolfe, the state’s public defender, has called for Judge Nalley to be removed from the bench.
The Stun-Cuff looks like this (left).
Find out more about the Stun-Cuff via the Corrections website (whence we derived that image).
Law and injustice around the world
Argentina’s Congress has passed a bill designed to defy a US court ruling that pushed the country into default in July.
According to the BBC
It relates to a protracted dispute with hedge funds demanding payment of $1.3bn (£766m) on bonds they hold from a default 13 years ago. The hedge funds had won a ruling in the US preventing Argentina distributing interest payments to all bondholders. The court barred some banks from making payments on $29bn of bonds. But the bill is designed to side-step this. It would allow Argentina to make payments locally or in jurisdictions beyond the reach of the US courts.
Basically the problem seems to be that some bondholders (US hedge funds, also referred to less respectfully as Vulture Funds) are holding out for full payment of Argentine debts (even if acquired at less than face value), while other creditors are agreeing or have agreed to accept losses following restructuring arrangements. But:
The US courts have blocked payments to other bondholders who agreed a separate deal with Argentina, until agreement with the “hold-outs” is reached.
Human rights campaigner put on trial
Yang Maodong, a human rights activist better known by his pen name Guo Feixiong, who is accused of assembling a crowd to disrupt public order, is shortly to be put on trial in southern China, according to the New York Times.
The NYT report explains:
For a decade, Mr. Yang has been well known in Guangdong as an advocate and adviser of citizens protesting land confiscations, home demolitions, police abuses and other grievances against officialdom. He and other rights activists in Guangzhou also rallied around demands that the Communist Party disclose officials’ wealth as part of promises to fight corruption that Mr. Xi [Jinping] made when he assumed power in November 2012.
But since last year, Mr. Xi has overseen a concerted drive against organized dissent, and many of Mr. Yang’s allies have already been imprisoned, including Xu Zhiyong, a law lecturer in Beijing who helped organize a so-called New Citizens Movement to demand expanded rights and greater government accountability. The police in Guangzhou detained Mr. Yang last month.
Meanwhile, the crackdown on democracy in Hong Kong continues.
The pro-democracy Occupy movement has been pushing for the right to elect a leader not necessarily nominated by the mainland government. But in a recent meeting with Hong Kong’s lawmakers, Zhang Xiaoming, the head of China’s Liaison Office in Hong Kong,made clear his leadership’s position:
“The fact that you are allowed to stay alive, already shows the country’s inclusiveness.”
Full report: Reuters.
Wife’s dancing cited in evidence against activist
In a move that would be comic if it weren’t scarily menacing, prosecutors at the retrial in Cairo of the prominent blogger Alaa Abdel-Fattah, on charges of protesting and beating a police officer, presented a home video of his wife belly-dancing as evidence against him.
His defence lawyer, Taher Abul-Nasr, told the court the video had been taken from a computer seized from the defendant’s home without a search warrant, and said the material was irrelevant and defamatory. Most of the other evidence consisted of television images of protests and police chasing civilians, with no scenes of Mr Abdel-Fattah or any other defendant, being shown.
Full report: New York Times
Mr Abdel-Fattah was previously sentenced to 15 years imprisonment. He has a history of activism, and was first detained in 2006 for protesting in favour of an independent judiciary. Today he heads a law centre, specialising in cases of torture and human rights violations.
For more background, see LRB blog
Continued raids on NGOs
The authorites in Hungary seem to be cracking down on NGOs who administer foreign donor money for civil society organisations in the country.
According to Human Rights Watch, this week police officers raided the offices of two non governmental organisations in Budapest, Ökotárs and Demnet, confiscating laptops in pursuit of what they categorised as “misappropriation and unauthorized financial activity” committed by “an unknown perpetrator.” The raids follow a spate of surprise financial inspections on NGOs in May, amid accusations that foreign governments sucha s Norway were interfering in Hungary’s internal politics by funding organisations ultimately linked to political opponents of the existing (apparently authoritarian) regime. In July, Prime Minister Viktor Orban, after securing a new term in April, went so far as to declare that he wanted to put an end to liberal democracy in Hungary.
British woman arrested for watching men play volleyball
In another development that would be comic if it weren’t scarily menacing (see Egypt above), a 25-year-old British woman, Ghoncheh Ghavami, has spent almost three months in an Iranian prison, after attempting to watch a men’s volleyball match, in defiance of a ban on female spectators at male sporting events.
Amnesty International are now suggesting that Ms Ghavami may be charged with “spreading propaganda against the state”. Apparently it’s not the first time she’s protested against the ban on watching male sports.
Full report: The Times.
In a separate case, which also bears witness to Iran’s failure to live up to the promise of its new new president, Hassan Rouhani, to modernise, this week six young Iranians went on trial in Tehran for offences against morality after posting a video online of themselves dancing to the hit pop songHappy. (For more on this, see Weekly Notes – 30 May)
Capital punishment resumed after six year gap
After observing a six-year ‘informal’ moratorium on capital punishments, Pakistan is all set to hang a death row prisoner on September 18, amid outcry by human rights activists demanding abolition of the death penalty, according to Z-news India.
A court in Rawalpindi has ordered the authorities concerned to execute a death row prisoner, Shoaib Sarwar, on September 18. He was sentenced in July 1998 for a murder committed in 1996. The Human Rights Commission of Pakistan (HRCP) has expressed grave concern over the scheduled hanging, the first since 2008.
The HRCP said:
“We wish to remind the government that the reasons that have caused the stay of executions since 2008 have not changed. These include the well-documented deficiencies of the law, flaws in administration of justice and investigation methods and chronic corruption.
“In view of these factors, capital punishment allows for a high probability of miscarriages of justice, which is wholly unacceptable in a civilised society, particularly because the punishment is irreversible,” HRCP said.
On Thursday, Oscar Pistorius was found not guilty of murder, premeditated or otherwise, but there remained a question about a lesser charge of culpable homicide (negligence manslaughter). Then, Friday, he was found guilty of culpable homicide.
For a really helpful analysis of the law relating to this lesser offence, and how it differs from English notions of manslaughter, see Joseph Switalski on Keep Calm Talk Law, The Pistorius Verdict Explained
For more general comment with gender issues discussed, Sarah Ditum in the New Statesman, Oscar Pistorius is not guilty of murdering Reeva Steenkamp, the woman he killed.
The trial was broadcast and tweeted to bits. So a point of interest to commentators was the extent to which that may have influenced the course of the trial. There were no jurors to be bamboozled by the histrionic (sometimes) antics of counsel, but could it have had an effect on the judge and her two assessors? Was this the ideal forum of open justice or a bear pit of prejudicial acrimony? The social media aspect is discussed here by Catherine Baksi in the Gazette, Courts, TV and Twitter – the perfect combination?
UPDATE: further comments, from Felicity Gerry QC on The Justice Gap, Oscar Pistorius verdict: was it a miscarriage of justice?
A nicer picture of Scotland, home of the brave (including my grandmother).
Image from Premier Cottages.