Weekly Notes: legal news from ICLR — 12 November 2018
This week’s roundup includes diversity and adversity in the legal professions, court reform, open justice, legal aid, Brexit bombshells, and the devil of a copyright claim.
Levelling the Playing Field
Spark 21 is the charity behind the First 100 Years project that works to celebrate, inform and inspire future generations of women lawyers. Its fourth conference took place on 7 November at Simmons & Simmons in London, aiming to tackle
“issues such as how we ensure women reach senior positions in the field, how to achieve pay equality and what ways we can improve accessibility for women and people from minority backgrounds through alternative routes to qualification”.
Among other leading figures from both inside and outside the legal professions, a keynote speech on diversity in the legal profession was given by David Gauke LC, who began by saying:
“As we lead into the centenary of the Sex Disqualification (Removal) Act 1919 — which took the first steps in breaking down the barriers to the involvement of women in civic life, including in practising the law — I think it is important that we consider what ‘celebrating the past to the shape the future for women in law’ really means. It is an opportunity for each of us to re-examine and renew our commitment to a strong, equal and diverse legal profession.”
He went on to discuss how equal entry at the junior end of the profession does not always translate, or hasn’t yet translated, into sufficient diversity at the top — among senior law firm partners, for example, and the senior judiciary. He concluded by saying he was “committing myself anew to doing everything I can to support it in that endeavour.”
Despite the best intentions, diversity in the legal profession struggles, sometimes, to combat inherent prejudice, as our next piece shows…
The customer is always white
The only female Afghan-born barrister practising in England and Wales revealed last week that she had been asked by a solicitor to return her brief (and the fee, despite her having already worked on the case) because the client wanted “a white male barrister”, reported Legal Futures. Here’s what Rehana Popal tweeted:
The response on legal Twitter was immediate and overwhelmingly supportive, with many suggesting that the solicitors who acceded to such a client’s request were in breach of the Equality Act 2010 and the SRA code of conduct and should be reported and/or boycotted. (In any event, the solicitor having instructed the barrister, must presumably be contractually bound to pay fees for the work already done.)
But if a customer wants a particular barrister, however absurd their prejudice, should they not be allowed to choose? Up to a point. A client can prefer a particular barrister, by reason of their individual attributes and professional reputation; but not by reference to generic characteristics of the sort protected by the Equality Act, such as race, skin colour, gender etc. The distinction is not a difficult one, and a good solicitor ought to be able to explain it to the client, and a good chambers clerk to the solicitor.
The problem is certainly nothing new, however, and was probably more widespread in the past. In his autobiographical guest post on the Secret Barrister blog, Reflections from my years at the independent Bar, Mukul Chawla QC recalls how, before he’d even got his tenancy, he was sent in at the last minute to act for one of the defendants in a multi-hander at Inner London Crown Court. His client was less than welcoming:
My client’s first words to me in the corridor outside court and in the hearing of my prosecutor and a number of my co-defending counsel were “I don’t want no fucking Paki defending me.” I gulped and explained that I was all he was going to get.
Despite his client’s ingratitude, Chawla managed to get him off.
In the event, after two weeks my client was acquitted (I still suspect that the Jury felt sorry for him because of his representation) and because the Judge had heard of my difficulties with my client, he insisted on telling my client how fortunate he was in being represented by me. Two senior members of my chambers were in court waiting to be called on and heard the Judge’s comments. My client didn’t wait to say thank you.
Progress of Reform
HMCTS have been holding regular events to update court users and get feedback on its massive ongoing Reform project. The latest such event, which took place at Westminster University in London last week, was focused on family law. Among the major developments on display were the online divorce application portal, a public family law portal for local authorities to file applications and upload evidence, and an online probate application system.
There is a review of the event on the Transparency Project blog.
You can download and view the Family reform event slides.
There is also a video of the event itself.
See also the recently issued Reform Update — Autumn 2018, second in what will be a regular series of bulletins on progress of the project.
On 3 November 2018 the University of the West of England in Bristol hosted a workshop organised by journalist Louise Tickle as part of her project to investigate opening up the family courts and recalibrate the balance between privacy and scrutiny. Tickle is a member of the Transparency Project and one of the other members, Sarah Phillimore, wrote up the event on her Child Protection Resource blog, Why its time to open up the Family Courts.
I have often wondered why the lawyers are so absent from the parents’ narratives on social media. I am now beginning to understand exactly why. What was telling from many of the parents at the workshop was that the lack of public scrutiny meant that no one really understood the system they were entering, they felt powerless to engage with or even challenge their own lawyer and the power imbalance was thus magnified.
Litigants in person
Ignorance of what goes on in the family courts, and of what litigants can expect should they find themselves caught in a case there, is all the more problematic given how often the latter group are forced to represent themselves. Continuing her widely praised coverage in Buzzfeed News of legal aid cuts and their consequences, she describes the experience of such people in the family courts, in cases concerning the future of their children.
This Is How Parents Cope In Court With No Lawyer When Access To Their Kids Is At Stake is not a comfortable read. One father says he finds the whole process baffling. “It’s hard to understand what they’re saying and the laws. You’re in at the deep end. You don’t know what’s what.”
New research from the family solicitors’ association Resolution shows that
the number of people family lawyers are having to turn away because they can’t afford to pay and do not qualify for legal aid has increased fourfold since 2014. […] The majority of cases turned away — 82% — were for child arrangement orders, the survey of more than 240 family lawyers found.
Dugan explains how the legislation (the notorious Legal Aid, Sentencing and Punishment of Offenders Act 2012) distinguishes between public law cases (which can attract legal aid) and private disputes which don’t:
While parents on low incomes can get legal aid if there is an application for their child to be taken into state care, there is no access to a lawyer in fights over who the child lives with and whether they can see both parents. The situation means that a parent can be blocked from seeing a child entirely with no right to a lawyer to fight their corner.
NCA looks into Leave vote funding
The Electoral Commission has referred Mr Arron Banks, Better for the Country and others to the National Crime Agency for investigation of the suspected offences committed in relation to the funding of parts of the Leave campaign in the Brexit referendum. A statement by the Electoral Commission earlier this month said:
Following its investigation into funding for the 2016 EU referendum, the Electoral Commission has referred: Better for the Country, the organisation that ran the Leave.EU referendum campaign; Arron Banks; Leave.EU; Elizabeth Bilney; and other associated companies and individuals. The National Crime Agency has now launched a criminal investigation.
The investigation focused on £2m reported to have been loaned to Better for the Country by Arron Banks and his group of insurance companies and a further £6m reported to have been given to the organisation, on behalf of Leave.EU, by Arron Banks alone.
The NCA has in turn issued a statement saying, inter alia,
“While electoral law offences would not routinely fall within the NCA’s remit, the nature of the necessary inquiries and the potential for offences to have been committed other than under electoral law lead us to consider an NCA investigation appropriate in this instance. This is now a live investigation, and we are unable to discuss any operational detail.”
For more on this, and links to background reading and commentary, see Obiter J’s Law and Lawyers blog, National Crime Agency investigation ~ Brexit ~ Leave funding
The critical issue, cited there, is whether any of this can affect the Article 50 notification, on which see Ewan McGaughey at LSE Brexit blog — Fraud unravels everything: Brexit is voidable and Article 50 can be revoked.
Article 50 reference to ECJ to proceed
The Court of Session in Scotland has refused the government’s application for permission to appeal to the UK Supreme Court against its decision to refer to the European Court of Justice the question “whether the [Article 50] notification can be revoked in advance of the expiry of the two year period; with the effect that the UK would remain in the EU” : Wightman v Secretary of State for Exiting the European Union  CSIH 62.
As we reported in Weekly Notes — 8 October 2018, the case was brought by a number of petitioners including Members of the Scottish and European Parliaments and Jo Maugham QC, director of the Good Law Project, which supported the Withdraw our Notification petition through a crowdfunded appeal via CrowdJustice.
At a permission hearing last week, Lord Carloway, Scotland’s most senior judge, rejected the arguments put by the Advocate General for Scotland, Lord Keen QC, on behalf of the UK government, saying that if the ECJ was required to await the decision of the supreme court, then there would be “little prospect” of the hearing taking place in advance of the Commons “meaningful vote” on Brexit, rendering the entire exercise “academic”.
They think it’s all Dover. It is now. (Or maybe it isn’t?)
Meanwhile, back at Shambles HQ, aka the Westminster Government, one minister (the one in charge of Brexit, actually) admitted he hadn’t realised how significant the trade route through Dover to Calais, via the shortest distance between two markets, might be.
Speaking at an event on Brexit and the tech industry last week, Dominic Raab said:
“I hadn’t quite understood the full extent of this, but if you look at the UK and if you look at how we trade in goods, we are particularly reliant on the Dover-Calais crossing.”
Global trade without the globe, it seems. Or the Atlas. Or Google or Wikipedia or a fairly helpful book published a few months after the Referendum result, entitled Brexit: What the Hell Happens Now? by Ian Dunt. Which could have told him how catastrophic a no-deal Brexit would be in terms of the flow of goods across the channel. It’s hard not to laugh, or indeed cry.
Another man threw in his ministerial towel, such was his disgust at the Suez-pudding being made of the Brexit negotiations and the expected national humiliation. Jo Johnson, brother of the more famous Boris — on different sides in the referendum but now “united in fraternal dismay” (interesting choice of words) — said that Britain was “on the brink of the greatest crisis” since World War Two. In a post on Medium, Why I cannot support the Government’s proposed Brexit deal, he said that what was on offer now wasn’t “anything like what was promised”.
To present the nation with a choice between two deeply unattractive outcomes, vassalage and chaos, is a failure of British statecraft on a scale unseen since the Suez crisis.
JoJo (as he is sometimes referred to, in contradistinction to BoJo) now supports a People’s Vote, telling the BBC:
“My view is that this is so different from what was billed that it would be an absolute travesty if we do not go back to the people and ask them if they actually do want to exit the EU on this extraordinarily hopeless basis.”
Cabinet ministers have been invited this week to read the UK’s draft withdrawal deal with the EU. The Prime Minister Theresa May has said the withdrawal deal is 95% done — but there is no agreement yet on how to guarantee that there would be no hard border between Northern Ireland and the Republic of Ireland.
Second referendum: further reading
Shona Jolly QC in Prospect Magazine: The thing about the “will of the people” is that it changes
Ninad Bhagwat on Calm Talk Law: Constitution and Convention — What’s Stopping a Second Brexit Referendum?
A body calling itself The Satanic Temple have commenced an action for “copyright infringement, false designation of original, false description; and forbidden dilution” against Netflix and others over the TV series “Chilling Adventures of Sabrina”, because of its misuse of a graven image, according to World IP Review.
The horror show about Sabrina Spellman, a half-mortal half-witch, features a monument of Baphomet, an androgynous horned deity with a goat-like head and human body associated with Satanism and the occult. In its claim, the plaintiff (United Federation of Churches LLC d/b/a The Satanic Temple) asserts that defendants Netflix and Warner Bros have infringed its copyright in a 2.7 metre bronze sculpture of Baphomet situated in Detroit, Michigan, by using what is alleged to be a replica. In the show, the Baphomet monument is prominently used as “the central focal point of the school associated with evil, cannibalism and possibly murder”. Such an association injured The Satanic Temple’s business, the group said.
Whoever their counsel is when it comes to court, he’ll have to play devil’s advocate. For the avoidance of doubt, Satanic Temple isn’t one of the Inns of Court, although — dan, dan, dan… (Brown) — according to the entry in Wikipedia:
The name Baphomet first appeared in trial transcripts for the Inquisition of the Knights Templar starting in 1307. It first came into popular English usage in the 19th century during debate and speculation on the reasons for the suppression of the Templars.
We await the judgment with interest. No doubt it will be reported in the Wicca Law Reports.
Happy 20th Birthday to the HRA
The Human Rights Act 1998 received the Royal Assent on 9 November that year, so last week it celebrated it’s 20th anniversary. There are some, mainly domestic conservatives and overseas tyrants, who would like to see it killed off before it gets any older, but for the rest of us the only thing we want to see snuffed out are the candles on its birthday cake.
RightsInfo have done a nice little YouTube video to mark the occasion:
See also this article there about its birth: Reflecting On The Human Rights Act 1998 And ‘Bringing Rights Home’
Dates and Deadlines
Survive and Thrive
15 November 2018, Middle Temple
Titled ‘How to future-proof your skills in the digital age’, this session looks at
- The latest disruptive technological tools and platforms aimed at the legal community that are focused on improving organisation, time management, networking and wellbeing.
- The technological disruption that has already started to impact the legal community and is now enabling the general public to assume the role of the lawyer.
- The technology-enabled demands that will be placed on barristers by their clients in the future and how we can start to plan for these now.
Click here for booking details.
Allegations of domestic abuse in family courts
22 November, Gresham College, Holborn, London
The Transparency Project is facilitating this event to mark the publication of its new guidance note, How Do Family Courts Deal With Cases About Children Where There Might Be Domestic Abuse?
The event will be chaired by journalist and Transparency Project member Louise Tickle, and the panel will include Mr Justice Keehan QC, Sam King QC, Sarah Parsons (CAFCASS), Bob Greig (Only Dads / Only Mums), Dr Freda Gardner (Psychologist), Olive Craig (Legal Officer, Rights of Women).
Booking via Eventbrite.
24 November 2018, De Vere Grand Connaught Rooms, London
This year’s conference celebrates equality, diversity and inclusivity at the Bar, the development and diversification of practice, and barristers’ career progression in their life-stages, acknowledging how far we have come — and how much further we must go to remain a resilient profession. Speakers include David Gauke MP, Lord Chancellor; Geoffrey Cox QC MP, Attorney General; Baroness Chakrabarti, Shadow Attorney General of England & Wales; Lord Sumption OBE, Justice of the Supreme Court; Lord Justice Hickinbottom; Judge Molyneux, Circuit Judge at the Central Criminal Court.
Click here to book.
Tweet of the week
has a remembrance theme, from Frank Cranmer of the Law and Religion UK blog.
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.