Weekly Notes: legal news from ICLR — 15 October 2018

Judiciary

Pay and morale

The Daily Mail has reported, with its customary judicophobia, that “Judges [are] set for thumping £60,000 pay rises while hardworking Britons are forced to watch every penny”.

Leaving aside the defamatory implication that judges are not hardworking, the article appears to be based on accurate (undenied, at any rate) information from a leaked cabinet letter about recommendations in a Senior Salaries Review Board (SSRB) report on judicial pay. This suggests that some judges, namely High Court judges, so not all judges, might get 32% pay rise IF (and it’s a big IF) the SSRB recommendations were accepted in full. Circuit judges would get a rather smaller (22%) rise and some other rearrangements of the judicial pay structure would be made.

The justifications for the pay hike were reported to be the need to combat low judicial morale and to help overcome the crisis in judicial recruitment, and also to make up for past and continuing pension cuts. It’s the culmination of a process that began in October 2016, when the Lord Chancellor of the day (or the few months), Liz Truss MP, wrote to the chair of the SSRB to commission a Major Review of the judicial salary structure. Following calls for evidence and consultations, the chair of the Review, Sharon Witherspoon, wrote to judges on 1 October with a final update. She said

I am pleased to let you know that, as agreed with the Lord Chancellor, we submitted our final report to government on 28 September. I should explain that, as is customary, it is planned that our report will be published alongside the government response. The timing of publication is, therefore, a matter for government and not the SSRB.

It seems that the government might have decided to soften the impact of its response, or at any rate to test the public mood, before formal publication alongside the SSRB report. (No question of informing the judges themselves until after the public have found out about it, of course.) That said, leaking to the Mail is not really a way of testing the public mood, since that mood will inevitably be polluted by the way the story is presented. The Sun headline “NO JUSTICE: Fury as judges set for huge £60,000 pay hikes while nurses and teachers get just three per cent bump” was little better. No doubt it could have cited court ushers and listing officers as being equally hard done by, but nurses and teachers have more PBI-recognition.

Setting aside the tabloid hoo-hah, are the pay rises justified?

Judges have been complaining for years that their pay and pensions have, in real terms, fallen dramatically in recent years, so (as with many such salary reviews) the solution is more about restoring losses at the senior end of the public sector, than boosting pay in the way that happens when supply fails to meet demand (or greed) in the private sector.

In fact, it would probably be a lot cheaper for the government just to boost judicial pay than it would be to remedy all the problems in the justice system that have given rise to low judicial morale (lack of support, lack of facilities, overburdened lists and mounting involvement in admin and managerial roles).

One commentator certainly thinks the rises could be misplaced: Matthew Scott posting as Barrister Blogger points out that with the criminal bar dying by a thousand cuts and other publicly funded areas of practice likewise underfunded, the supply of good quality judicial candidates in future is likely to dry up or be confined to the ranks of those independently wealthy enough to survive at the Bar.

As for the Daily Mail, while its article snarks about giving “wealthy judges” a big rise, its outgoing editor Paul Dacre was reportedly paid a £1.45m in salary last year, following a 50% pay rise, along with a £856,000 payout from company’s long-term investment plan and other benefits, according to the Guardian. Meanwhile the average pay of Mail staffers is £36,000, according to the data transparency org, PayScale.

Immigration

Report calls for more transparency over figures

A report by the Social Market Foundation (noted in the Free Movement newsletter) reveals the true extent of the UK government’s control over immigration and makes the case for greater political honesty about that control. The SMF report, by Jonathan Thomas, is titled Take Back Control. (PDF)

Announcing the report, they say:

“The impression given to the UK public has been of an immigration system that is out of control. […] But the Government can — and does — exercise far greater control over immigration than is commonly perceived. All the evidence actually points to the fact that overall the UK exercises extremely effective control over immigration.”

“Greater transparency could significantly address the feelings of distrust and suspicion and perhaps start to address the concern that the Government is not doing enough to control immigration.”

“Promises to “take back control” would at last be subjected to meaningful scrutiny. […] Being more transparent about the true extent and nature of the UK’s control of immigration would not only allow a more informed and balanced debate, but being more transparent about the often stark realities of the means of that control, but also the practical limits to it, would potentially create a real space to debate the actual, lived experience of immigration control.”

“Only when we have more open and honest acknowledgement of the extent of the Government’s control over immigration will we truly be able to have a fully informed and honest debate about the immigration policy that we want outside the EU.”

Download the PDF:

Legal professions

Barristerial garb

Middle Temple library have a fascinating exhibition about legal costume down the ages. The exhibition features materials from the Middle Temple Library and Middle Temple Archive as well as artefacts loaned from the Royal Courts of Justice.

See their blog post, Legal Fashion Exhibition, for more details:

Bar disciplinary proceedings: standard of proof

The Bar Standards Board has announced that all new disciplinary hearings against barristers will be conducted according to the civil standard of proof (ie on a balance of probabilities) rather than, as previously, the criminal standard (beyond reasonable doubt). The BSB made the change following an earlier consultation and it has now been approved by the Legal Services Board (the ‘uber regulator’ of legal professional regulators). Accordingly, the Bar Tribunals and Adjudication Service plans to apply the civil standard to alleged breaches of the Code occurring after 31 March 2019. Earlier complaints will continue to be processed and heard by reference to the higher, criminal standard.

The Times Law Brief observed that

“A lowering of the standard of proof for barristers will increase pressure on the Solicitors Disciplinary Tribunal (SDT) to follow suit for hearings involving lawyers at the larger branch of the legal profession.”

That would accord with the LSB’s intentions, according to is Chief Executive, Neil Buckley:

“The LSB thematic review of disciplinary processes in 2014 set out that that consistent use of the civil standard of proof across the legal services regulators was best regulatory practice. This move is a welcome further step towards achieving that objective.”

Discrimination

Cake decorator not obliged to ‘support gay marriage’

The refusal by the Christian owners of a bakery to supply to a gay customer a cake decorated with a message to which they profoundly objected on religious grounds did not constitute unlawful discrimination on grounds of the customer’s sexual orientation or political beliefs; rather, the bakers had the right, under their own freedom of expression, not to be required to express a sentiment with which they disagreed.

In Lee v Ashers Baking Co Ltd [2018] UKSC 49 the UK Supreme Court, on a devolution reference by the Attorney General for Northern Ireland, and an appeal against the decision of the Northern Ireland Court of Appeal, held that neither the Equality Act (Sexual Orientation) Regulations (NI) 2006 nor the Fair Employment and Treatment (NI) Order 1988 imposed civil liability on the appellants for refusing to express a political opinion contrary to their religious beliefs.

The UK Supreme Court blog explained the judgment as follows:

“The Court considered that the objection of the appellants was to the message on the cake, not to the respondent’s actual or perceived sexual orientation, and the message was not indissociable from the sexual orientation of the customer, as support for gay marriage was not a proxy for any particular sexual orientation. The Court held that the rights to freedom of thought, conscience and religion (ECHR, art 9) and to freedom of expression (ECHR, art 10) were engaged but that this meant that, whilst the appellants could not refuse to provide their products to the respondent because he was a gay man or because he supported gay marriage, this was different from obliging them to supply a cake iced with a message with which they profoundly disagreed and as justification had not been shown, their refusal was permissible.”

The distinction between a public business refusing to serve a gay customer on religious grounds (as happened in the bed and breakfast case, Black v Wilkinson [2013] EWCA Civ 820; [2013] 1 WLR 2490) and and agreeing to serve the gay customer but refusing to express a particular message for him on religious grounds has proved too subtle for some commentators, but it demonstrates how the balance of different human rights can be more complicated than at first appears.

Previously, the focus seems to have been more on the public-facing nature of the Ashers business, rather than the personal beliefs of the two McArthurs who ran it, with the view being taken that, if you conduct business in the public sphere, you must abide by public rules of conduct. If you take the benefit, so to speak, you must also take the burden. Some commentators have therefore suggested that, whilst the freedom of expression argument might apply to Mr and Mrs McArthur, it should not apply to the separate legal entity of their company. (The case which establishes the principle of separate corporate legal identity is Salomon v A Salomon & Co Ltd [1897] AC 22.)

There is useful background in the case comment on RightsInfo and also an article by the gay rights campaigner Peter Tatchell, explaining how the decision is a “Victory for freedom of expression”. He says:

As well as meaning that Ashers cannot be legally forced to aid the promotion of same-sex marriage, it also means that gay bakers cannot be compelled by law to decorate cakes with anti-gay marriage slogans.

In the light of this ruling, businesses can now lawfully refuse a customer’s request to emblazon a political message if they have a conscientious objection to it. This includes the right to refuse messages that are sexist, xenophobic or anti-gay, which is a good thing. […]

Discrimination against LGBT people is wrong. But in a free society, people should be able to discriminate against ideas that they disagree with.

We have previously written about this case in Weekly Notes — 31 October 2016.

Law (and injustice) from around the world

Canada

“We’ed underestimated”: Problems meeting high demand following legalisation of cannabis

Metro reports that “Canada doesn’t have enough weed for when cannabis becomes legal on Wednesday”. Researchers from the University of Waterloo and the C.D. Howe Institute have apparently said that suppliers will only be able to fulfil between 30–60% of demand when the centuries-old prohibition is lifted. Canada will become only the second country in the world to legalise cannabis on 17 October, following Uruguay, which led the way in December 2013.

The change in the law was effected by the somewhat cumbersomely named “an Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts” (Statutes of Canada 2018, ch 16) which received the Royal Assent on 21 June this year. (CanLII link.)

Might the same Queen sign a similar enactment into law in the UK? As we reported at the time, the prospect of legalising cannabis in the UK was raised by the Liberal Democrats in their manifesto for the 2017 general election. Hitherto, all we have seen is some relaxation on the prohibition in relation to the use of cannabis oil for medical purposes.

That’s it for now. Our thanks to all who flagged up stories, via their blogs and on Twitter. Look out for news of the imminent launch of ICLR’s new Blog and Knowledge pages, hopefully very soon.

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. Comments welcome on Twitter @TheICLR.

Image : The Legal Service for Wales at Llandaff Cathedral. 13 October 2013, by FruitMonkey (Wikimedia Commons).

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