Weekly Notes: legal news from ICLR — 1 October 2018

We welcome our readers back for the start of a new legal year and the resumption of our weekly roundup of legal news and commentary.

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To mark the first anniversary of the launch of our legal information platform ICLR.3, we have been redesigning the blog pages and will soon be launching an exciting new Knowledge section with information about case law, legislation, the legal system and a growing glossary of legal terminology. Watch this space.

Legal professions

The Michaelmas Term begins Monday 1 October and ends on Friday 21 December 2018

Hilary term 2019 runs from Friday 11 January to Wednesday 17 April 2019.

Easter term runs from Tuesday 30 April to Friday 24 May 2019.

Trinity term begins Tuesday 4 June and ends on Wednesday 31 July 2019.

Most new pupillages start today. We wish all pupils the best possible experience of their training and the best of luck for their legal careers.

The Pupillage Fair run by the Bar Council in association with King’s College London is at Bush House in London on 27 October 2918 and is free to attend. For details, see Eventbrite.

Sponsorship. As you may know, ICLR has a sponsorship programme to assist pupils engaged in a mainly publicly funded law set of chambers, for whom the pay may not be quite as munificent as in some of the more commercial private law sets.

Congratulations to Daniel Wand, winner of the ICLR Pupillage Award 2018.

The Bar Standards Board (BSB) has launched a consultation to seek views about its proposed new rules to improve transparency standards for clients of the Bar.

After a period of consultation last year in response to the Competition and Markets Authority’s (CMA’s) market study of legal services, the BSB published its revised approach to improving transparency for consumers of barristers’ services in February 2018. The new transparency standards relate to information about

  • the areas of law in which barristers practise,
  • the legal services provided by barristers,
  • what those services cost and
  • a client’s right to redress.

The deadline for responses to the consultation is Friday 14 December 2018. Following our consideration of responses to this consultation and approval by the Legal Services Board (LSB), the new rules will come into force by May 2019.

Courts

After months of complaints about excessive and seemingly random security restrictions for lawyers entering court buildings, a scheme was launched by the Ministry of Justice over the long vacation to allow suitably accredited legal professionals to gain fast-track search-free entry to courts. The scheme announced in August was being piloted by HM Courts & Tribunals Service (HMCTS) in five courts, with registration beginning in August and fast-track entry from September.

The Bar Council has led the development of an app for its members to use as ID, through the MyBar portal, and Law Society members will benefit from the pilot, using approved photo ID.

While tightened security procedures introduced during the last year will continue, the ‘Professional Entry Scheme’ intends to ease queues to get into court buildings and allow easier and swifter access for legal professionals who come to court regularly. However, there was some annoyance from professionals that they might have to pay a fee to take advantage of the service, as the Law Society Gazette reported (Courts ID scheme hit by fees controversy ahead of pilot):

A Bar Council spokesperson confirmed to the Gazette that members will not have to pay a fee during the pilot. However, the spokesperson said: ‘Depending on the outcome of the pilot and any subsequent national rollout by HMCTS of the scheme, the Bar Council will need to charge a fee to cover the costs involved in developing the app that enables thousands of barristers to have the appropriate ID system for fast-track court entry. The priority is to make sure barristers can access the courts through a system that works effectively.’

Welcoming the pilot, Andrew Walker QC, Chair of the Bar, said:

“Barristers across the country have been telling us about lengthy delays and sometimes intrusive, unnecessary or excessive security measures being imposed on them when trying to enter to court buildings. We were hearing stories of barristers being forced to prove their drinks were not dangerous, having essential electronic devices confiscated, and having their private belongings searched in public. They are there to do their job, playing a key role in the administration of justice. They do not deserve to have that job made more difficult, or to have their time wasted. We made the Bar’s views clear to HMCTS, and took up the challenge of trying to find a solution. To HMCTS’s credit, they have worked with us to try to find a way forward that has the support of the judges, and does not jeopardise the need for tight security in our courts.”

If any readers have experience of the pilot scheme, we would like to hear how it has been going.

Family law

Following representations by the Transparency Project, the Family Procedure Rule Committee have set up a pilot scheme to permit legal bloggers into family court hearings. The pilot launches today, 1 October and runs for 9 months until 30 June 2019. It will allow practising lawyers, academic lawyers and those under the umbrella of an an educational charity (like the Transparency Project) to attend family case hearings in private to which, under the rules, only accredited media representatives currently have any right of access (other than the parties and any professionals involved).

Access is also currently permitted on a discretionary basis for researchers, academics et al, but what the pilot will allow is legally qualified commentators and researchers to attend, unless any reasoned objection from a party is upheld by the court, and to write about it subject to any reporting restrictions.

For more information, see the Transparency Project blog.

Practice Direction 36J (via Justice website).

Data protection

Jon Baines on the Mishcon de Reya website writes about the first formal enforcement action issued under the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA18), which nearly slipped under the radar, so little fanfare accompanied this triumph of effective regulation. He explains:

The action in question was an Enforcement Notice of the Information Commissioner, served under section 149 of DPA18, on AggregateIQ Data Services Ltd (“AIQ”) requiring it to

‘cease processing any personal data of UK or EU citizens obtained from UK political organisations or otherwise for the purposes of data analytics, political campaigning or any other advertising purposes’

One could be forgiven, however, for overlooking the Notice. It is not, for some reason, listed on the Commissioner’s “Enforcement action” page (which is stated to include “the latest…enforcement notices”). Rather, it was attached as an annex to the Commissioner’s report into its “Investigation into the use of data analytics in political campaigns”.

This may not be the last we hear of this case (quite apart from the fact that the data controller in question is for various reasons quite ‘newsworthy’). Apparently, “it is understood that AIQ have exercised their right of appeal to the First-tier Tribunal, under section 162(1)© of DPA18.” If so, some actual reportable case law might be generated and we’ll be able to index it on this platform.

Judiciary

Hard not to be smug about our relatively discreet judicial appointments process, when you look at the US Supreme Court nomination hearings across the pond. Whatever the virtues of Judge Brett M. Kavanaugh as a jurist, it is going to be hard for him to look any litigant in the face without wondering what they think of him after all the alleged mud that has been flung his way up on Capitol Hill, and that through which his accusers have been hauled.

But perhaps we shouldn’t be too smug. How transparent is our own system? We may have come a long way from the ‘tap of the shoulder’ days, but how much of what the Judicial Appointments Commission does is accessible to public scrutiny?

Interesting to look at its website. Note that on selection day, properly dressed and suitably nervous, candidates may face something called “situational questioning” which “involves asking you what you would do in a specific situation, based on challenging, real-life scenarios. It may include a role play”. It may include dealing with litigants in person and McKenzie Friends. But is any of this done in public? Or are the decisions (the reasoning behind them) published? It doesn’t appear so. Should they be? For the most senior (appellate level) courts, in the interests of transparency and open justice, perhaps they should be.

That’s not to say we should involve politicians, or partisan questioning, or public voting, all of which seem to compromise the judicial independence on which the separation of powers depends. The Lord Chief Justice, Lord Burnett has recently said the judiciary should reach out more to the public, engage with the media, support public legal education. Perhaps public appointment sessions would enable ordinary people to engage more with who the judiciary are and what they do, and find out more about what makes them tick. You can’t just rely on TV documentaries or feature films based on novels by Ian McEwan, however much they may help.

Will the Kavanaugh episode damage the Supreme Court? It isn’t over yet, but on the Constitution Daily blog Lyle Denniston, who has written about the Supreme Court since 1958, looks at the current contentious nomination process in the context of the Court’s long-term institutional strength.

Laurence H. Tribe, professor of constitutional law at Harvard Law School, comments on Kavanaugh in the New York Times that:

“His intemperate personal attacks on members of the Senate Judiciary Committee and his partisan tirades against what he derided as a conspiracy of liberal political enemies guilty of a “calculated and orchestrated political hit” do more than simply display a strikingly injudicious temperament.”

Law (and injustice) from around the world

The Indian Supreme Court has finally issued a judgment interpreting the law in such a way as to decriminalise homosexual acts. Section 377 of the Indian Penal Code 1860 (IPC), which dates from the British colonial era, provides:

“377. Unnatural offences.

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

It was that unscientific phrase “against the order of nature”, which previously allowed a prohibitive interpretation based on religious or cultural opposition to homosexuality, that in a more progressive and diverse era allowed the court to hold, on 6 September 2018, that sexual orientation is natural and people have no control over it. According to the Supreme Court said that consensual sex between adults in a private space, which was not harmful to women or children, could not be denied as it was a matter of individual choice.

The judgment is worth reading in full. It is full of citations from philosophy and other disciplines as well as legal writing and precedent.

Source: The Times of India

SC Judgment (now indexed on ICLR.3): Navtej Singh Johar & ors v Union of India 2018 SCC Online SC 1350.

That’s it for this week. Thanks for reading. Watch this space for updates.

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.

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The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

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