This week’s roundup of legal news and comment includes charity regulation, media support, the law on trolling and intimidation, and the parole board. [Updated 15.02.18]

Charities

Regulation, reputational risk and safeguarding obligations

The revelations in the media over the last week about Oxfam’s failure properly to investigate and deal with allegations of sexual misconduct by staff on location in Haiti and Chad during disaster relief operations have once again raised the issue of charity regulation and transparency. Nor does it now appear that the incidents in question, first reported in The Times, were isolated. There are suggestions that the ‘industry’ (if you can call it that) is riddled with such problems, which have characteristically been kept secret to protect the reputation of organisations which depend critically on public donation and goodwill. According to The Times,

Matt Hancock, the [Secretary of State for Digital Culture Media and Sport] who is responsible for charity regulation, said: “These allegations are deeply shocking and Oxfam must now provide the Charity Commission with all the evidence they hold of events that happened in Haiti as a matter of urgency. The reported historic behaviour of senior aid workers is abhorrent and completely unacceptable. Charities must ensure that they have the highest standards of transparency and safeguarding procedures in place to protect vulnerable people and maintain the trust of the public.”

But there’s now a question about whether the Charity Commission, as the third sector’s independent regulator, has itself been sufficiently active and transparent on this problem.

In an interview on Channel 4 News, Helen Evans, who worked for Oxfam as its global head of safeguarding from 2012 to 2015, said she had repeatedly asked for more resources to investigate abuse while working for Oxfam, before blowing the whistle to the Charity Commission in June 2015. But she was ‘extremely disappointed’ by the commission’s failure to meet with her or ask for any further information about her concerns not only in relation to sexual exploitation and abuse on location but also in relation to children aged 14+ volunteering in UK shops who were being put at risk due to failures to run DBS checks on shop staff. The commission’s response was only to assert that Oxfam’s position on DBS checking at the time was legal.

Nor was any action taken after Evans wrote to her MP who in turn wrote to several government departments, including the Department for International Development, Home Office and Children’s Commissioner. It was only after the press picked up the story that the Charity Commission became more responsive. The result was its ‘Oxfam: case report’ published in December 2017.

As we reported not long ago in relation to the Presidents Club sexual abuse scandal (see Weekly Notes – 29 January 2018), charity trustees have a duty to make assessments of ‘reputational risk’ arising from their organisation’s activities and that includes the question of adequate safeguarding. Failures of safeguarding have an obvious downward effect on any organisation’s reputation, but in the case of a charity it can be critical not only to achieving its charitable objectives but to its very survival. The suggestion that the Oxfam scandal is not isolated but merely an example of an endemic problem could make this yet another example of what trusts lawyer Barbara Rich has called ‘toxic philanthropy’. 

Following its report on Oxfam last December, the commission updated its Safeguarding Strategy. This states that:

Trustees should proactively safeguard and promote the well-being and welfare of their charity’s beneficiaries and take reasonable steps to protect these beneficiaries, and others who come into contact with their charity, from harm…

The Commission requires charities to report serious incidents, including ‘harm to your charity’s work, beneficiaries or reputation’ from, inter alia, safeguarding incidents.

‘If a serious incident takes place, you need to report what happened and explain how you are dealing with it, even if you have reported it to the police, donors or another regulator.’

The strategy document also deals with the corresponding duties of other agencies, such as the Department for Education and other government departments, the Care Quality Commission, the Local Government Ombudsman and the Care and Social Services Inspectorate. But that part of it seems wholly focused on domestic safeguarding, which is strange given the number of charities which operate abroad. Thus it doesn’t mention the Department for International Development (DFID), for example, whose current secretary of state, Penny Mordaunt, has threatened to withdraw government funding from Oxfam following what she called a failure of ‘moral leadership’.

The Charity Commission has also updated its Regulatory and Risk Framework (no doubt in the wake of the Presidents Club scandal, but interestingly just days before the Oxfam scandal broke). This describes the commission’s own approach as ‘proactive’ and ‘risk-led regulation’. It also stresses the importance of trusteeship, saying ‘trustees should have appropriate processes in place for identifying and assessing risks, and deciding how to deal with them’ and urging them to report any serious incident to the commission.

The commission has now opened a statutory inquiry into Oxfam, and is planning a summit meeting with DFID and key international aid charities on safeguarding in the coming weeks.

 

Media

Government plan to promote good journalism

The fatal lure of fake news is being blamed, in part, on a decline in the staid satisfactions of traditional journalism. Lack of reliable news is a threat to democracy. What can the government do to help?

The Government is launching a review into whether state intervention is necessary to preserve national and local newspapers and combat the baleful effects of fake news and clickbait. Theresa May promised the review when giving a speech in Manchester on 6 February 2018 to mark the centenary of the Representation of the People Act 1918, under which women (or some of them) were first given the vote. According to the Department for Digital Culture Media and Sport announcement,

The review will investigate the overall health of the news media, looking at the range of news available and how the press is adapting to the new digital market – including the role and impact of online platforms such as Facebook and Google, and the digital advertising supply chain. […]

As well as identifying challenges, the review will make recommendations on what industry and government action can be taken, with a final report expected later this year.

Click here for the terms of reference.

The News Media Association welcomed the announcement, not surprisingly. As with the  Local News Partnership, under which the BBC helps fund 150 ‘local democracy reporters’ whose copy can then by syndicated among participant publishers and broadcasters, the scheme could basically amount to a veiled form of subsidy, whose main beneficiaries are likely to be the big publishers – who in the meantime continue to sack professional old-school reporters, and instead devote much of their column inches to recycling the very social media content they blame for their own decline.

Or as Steven Barnett puts it in an article in The Conversation (Why Theresa May’s plan to save local journalism could end up benefiting media moguls):

‘There are two ways of looking at the newPress Review announced by Theresa May, the UK prime minister: a genuine attempt to inject some badly needed funds into the failing business model of journalism, or another backhander to the mainstream corporate press to keep them sweet. Depressingly, history suggests the latter.’

He concludes:

‘Given the ferocious propaganda battle that those same press barons have fought in the post-Leveson era against any measures that might make them more accountable – and given that every one of her five prime ministerial predecessors at some point surrendered to their concerted and self-interested lobbying – we should not be surprised if the main beneficiaries of this review will yet again be the likes of Rupert Murdoch and the other big beast of Fleet Street.’

It seems that some forms of state interference are to be tolerated or even welcomed, whereas others, such as the attempt to impose more stringent regulation post-Leveson, by way of a genuinely compliant approved regulator, are not.

The announcement of the review follows earlier proposals for better provincial court reporting discussed at a seminar held last month and more fully reported on the Transparency Project blog: Crisis in Our Courts – and How to Solve it. That, too, seemed to involve getting money from somewhere else to prop up the ailing newspaper industry.

UPDATE

Further commentary on this development has now been published on Inforrm’s blog, written by Julian Petley, Professor of Journalism at Brunel University:

Press Sustainability Review: A Total Sham, Part 1

Press Sustainability Review: A Total Sham, Part 2

See also Roy Greenslade, in The Guardian, Is May’s press inquiry just a way of putting Leveson 2 on the back burner? 

Parole Board

Judicial review to proceed over Worboys release

On 7 February the Divisional Court (presided over by Sir Brian Leveson, President of the Queen’s Bench Division, sitting with Mr Justice Garnham), gave  permission for a claim by DSD and NBV, two victims of the notorious serial rapist John Worboys (now going under the name John Radford) against the Parole Board’s controversial decision to release him early on licence (see Weekly Notes – 22 January 2018). Worboys’ release will be further postponed now, pending the full hearing of the judicial review claim, set to commence on 13 March.

The court had been beset with issues over failing video links (about which Leveson P had complained grumpily, prompting lawyers more familiar with the courts’ daily techfails to roll their eyes) which meant that Worboys (unrepresented at this hearing) was eventually invited to attend in person; and in consequence was able to take advantage of ad hoc (quasi dock brief) legal advice from a solicitor who happened to be in the public gallery, as Joshua Rozenberg, live tweeting the case, noted:

For more analysis of the case, see:

Joshua Rozenberg, Law Soc Gazette, Lifting the lid on Worboys

Paul Magrath, Lawyer 2B, After the Warboys case, should the Parole Board be more open about its decisions?

Owen Bowcott, The Guardian, Court allows challenge to Worboys release 

Justice Committee evidence session

Meanwhile, on the same day, the House of Commons Justice Committee held a one-off evidence session to examine the implications of the case of John Worboys, the transparency of Parole Board decisions, and how best to involve and support the victims involved. They heard from:

  • Professor Nick Hardwick, Chair, Parole Board for England and Wales
  • Martin Jones, CEO, Parole Board for England and Wales
  • Baroness Newlove, Victims’ Commissioner for England and Wales
  • Sonia Crozier, Executive Director, National Probation Service in England
  • Justin Russell, Director General, Prisons, Offender and Youth Justice Policy, Ministry of Justice
  • Dame Glenys Stacey, Chief Inspector, HMI Probation

They discussed a range of issues, including:

  • The Parole Board’s decision-making process
  • Victims’ involvement in the parole process
  • The transparency of Parole Board decisions
  • The Victim Contact Scheme

You can re-watch the session on parliamentlive.tv. (A transcript of the session is expected to be published shortly.)

The committee has also published a letter from Baroness Newlove, the Victims’ Commissioner, and a written submission from NicK Hardwick.

UPDATE

Criminal law

Trolling and intimidation

The government has asked the Law Commission to review the laws around offensive communications and assess whether they provide the right protection to victims online. This independent review of the law will look at existing laws and how they apply to online communications. The results are expected to be published within 6 months.

In October 2017 the Government launched its Internet Safety Strategy green paper, pledging to make the UK the safest place in the world to be online. It is the first part of the Digital Charter – a rolling programme of work to agree norms and rules for the online world and put them into practice. This review appears to be part of the process of ensuring those obligations can be met.

The official announcement from the Law Commission coincided with statements by a number of politicians, including the Prime Minister in her speech in Manchester (mentioned above) and Amber Rudd on the radio, both essentially calling for an overhaul of the criminal law in the name of tackling “intimidation and aggression” on the internet, on the premises that “what is illegal offline should also be illegal online”. But A comprehensive list of intimidatory acts that are illegal offline but legal online in a blog post by the Secret Barrister contained a sum total of zero items, making the sarcastic point that the government appeared to be engaging in a public relations exercise or proposing yet more ‘sign-posting’ legislation of the type satirised by David Allen Green as the Something Must Be Done Act. He, too, appeared to think the law did not require updating.

Conservative Party Chairman Brandon Lewis said part of the aim was “bringing intimidation into electoral law.” So one of its purposes might be to specifically target acts of intimidation against politicians – such as the abuse suffered by many candidates, predominantly women and ethnic minorities, in the 2016 general election. For more on this, see Saxon Norgard, on RightsInfo, PM to Announce New Law Outlawing Intimidation. 

Dates & Deadlines

A Theory of Justice: The Musical!

A Philosophy professor travels through time in pursuit of love and a grand liberal theory of justice, meeting a colourful cast of singing philosophers across history. Following a successful Edinburgh Fringe run, A Theory of Justice gets a semi-staged workshop from award-winning director Josh Seymour (Adding Machine).

Arts Theatre, Great Newport St, London: Monday 19 February at 3pm & 7.30pm

Tickets: £7.50 (£5 concessions)

BIALL Quiz

Tickets are now available for the annual British and Irish Association of Law Librarians Quiz in aid of the Wallace Breem Fund and Cogwheel Trust International, to be held at the Penderel’s Oak pub (Holborn, London) on Wednesday, 14th March. They are priced at £12 each for BIALL members and £18 for non-members. The price includes a meal and two drinks. Maximum team size is 6. If you can’t get a team together but would still like to take part, we can fix you up on the night. Booking closes on 7 March.  Tickets can be purchased via Eventbrite https://biall.org.uk/biall-quiz-2018/

Golding Essay Prize 2018

The Competition Law Association (CLA) is offering a prize of £1,000 to be awarded for an essay submitted by a student, trainee solicitor, pupil barrister, devil barrister (from Scotland) or trainee patent and trade mark attorney on the following topic:

Was the Supreme Court right in Actavis v Eli Lilly [2017] UKSC 48 to introduce a doctrine of equivalents when determining infringement of patents in the UK?

The essay shall be of a maximum length of 5,000 words (inclusive of footnotes) and the closing date for submission of entries is 28 February 2018. Entries should be formatted on A4 in at least 11 point font and 1.5 spacing with footnotes at the bottom of the page, and submitted in electronic form to the CLA secretary, Sharon Horwitz at sharon.horwitz@cma.gsi.gov.uk

Click here for further details. 

Other reads and roundups

Mark Elliott, Stephen Tierney and Alison Young, on Public Law for Everyone: Human Rights Post-Brexit: The Need for Legislation?

Mental Capacity Law and Policy, Deprivation of liberty in the hospital setting – new guidance note

Ben Amunwa, The Justice Gap, Home Office discriminated against mentally ill detainee in breach of duty to make reasonable adjustments

Anna Tylor, letter to the Guardian, Disability equality on juries a sham

Legal Futures, LeO rules out investigating complaints about unregulated providers using lawyers’ money

Transparency Project, Family Court Reporting Watch roundup

Law (and injustice) from around the world

Bermuda

https://twitter.com/pjm1kbw/status/961554334646448128

According to the linked Guardian news story,

Bermuda’s governor has signed into law a bill reversing the right of gay couples to marry, despite a supreme court ruling last year authorising same-sex marriage. […] “The act is intended to strike a fair balance between two currently irreconcilable groups in Bermuda, by restating that marriage must be between a male and a female while at the same time recognising and protecting the rights of same-sex couples,” said Brown, whose ruling Progressive Labour party proposed the repeal.

Same-sex couples will now have the option only of a registered domestic partnership, after Bermuda’s Senate and House of Assembly passed the legislation by wide margins in December and a majority of voters opposed same-sex marriage in a referendum.

 

and finally … Tweet of the Week

on the one thing not being mentioned as cabinet ministers continue to disagree over the options for future ‘alignment’ and trading with the rest of the EU.

That’s it for now. Apologies for the late publication, owing to factors beyond our control. Thanks to all our readers, and special thanks to those who flagged up stories via their blogs or on Twitter.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.