Weekly Notes: legal news from ICLR — 22 July 2019

This week’s roundup of legal news and commentary includes the probable loss of yet another Lord Chancellor through the revolving door of Justice; plus courts reform and security, a crackdown on non-disclosure agreements, legal professions and information.

Politics

Not because we want him to, because for perhaps the first time in a decade we have a Lord Chancellor of whom we can feel reasonable proud and a sense that he is ON OUR SIDE. Not because we want to see the back of him, therefore, but because he has indicated he will not work alongside, or under, the man most likely to success Theresa May as Prime Minister. As the latest UK Human Rights Blog roundup puts it:

“The week ahead will, barring some extreme political drama, give us a new Prime Minister, and with it, the inevitable cabinet reshuffle. Some ministers have already made clear they believe they are unlikely to remain in post after the new PM’s appointment on Wednesday, in particular the Chancellor Phillip Hammond, and the Secretary of State for Justice David Gauke.”

David Gauke has not solved all the problems facing the justice system since he took over in January 2018 — the sixth in just six years to pass through the revolving door of the Ministry of Justice and the fourth in a period of just 18 months — but he has probably done better than any of his predecessors. Under his tenure we have seen at last the long awaited LASPO review, the abandonment of the catastrophic privatisation of probation services, the improvements in prison conditions, the revision of the discount rate for personal injury damages and a number of other reforms, many of which were, it is fair to point out, the work of others, but nevertheless delivered under his leadership. Most recently, he has ushered in a more progressive approach to rehabilitation, as we reported last week and has tried to scrap the short sentences which clog up the prisons with no particular punitive or reformatory benefit. He has also overseen a difficult negotiation over the improvement in legal aid fees for criminal practitioners — a longstanding grievance that remains to be fully resolved by whoever succeeds him — and what promises to be an improvement in the way judges are paid. Finally, he has called for an evidence-led approach to tackling crime and the causes of reoffending. Given that he has been in office only a year and a half, this is not a bad legacy.

Earlier this month, Gauke spoke at the Lord Mayor’s banquet in London, at a dinner . It was his second such speech, a fact on which he reflected somewhat ironically: “I am the first Lord Chancellor in a while to have served long enough to deliver two of these speeches.” Aware that he will certainly not give a third, indeed may not serve more that another three weeks, he left something of a warning to his predecessor about the “dangerous gulf” that the forces of populism had opened between the people and the institutions that serve them. In this atmosphere,

“Those grappling with complex problems are not viewed as public servants but as engaged in a conspiracy to seek to frustrate the will of the public. They are ‘enemies of the people’. In deploying this sort of language, we go to war with truth; we pour poison into our national conversation.”

He went on to praise the judiciary for its

“intellectual rigour, careful consideration of the arguments, and a serious-minded determination to each decision based on what is right and not necessarily what is superficially popular”,

adding, rather pointedly: “I am not sure that all politicians have the same reputation.”

Reflecting on his own legacy, he said: “We must face facts. I have made that my guiding principle in office.” Let’s hope his successor — whoever it be, and however long they last in the post before that metaphorical door revolves again — adopts a similarly courageous approach.

Employment law

The government has announced a “crackdown” on the abuse of non-disclosure agreements in the workplace. On 21 July 2019 business minister Kelly Tolhurst announced plans for

“new legislation which will, for the first time, prohibit NDAs being used to prevent individuals from disclosing information to the police, regulated health and care professionals, or legal professionals, such as a doctor, lawyer, or social worker.”

In fact, non-disclosure agreements or confidentiality clauses cannot prevent a person reporting a crime to the police, but the new legislation appears to be aimed as much at ensuring people understand the existing limits as to extending them. However there is no doubt that NDAs are widely abused to silence complainants and potential whistleblowers, as well as obstructing the ability of the press (who refer to them robustly as “gagging orders”) to report the underlying abuse. Moreover, the new law will make explicit the need to ensure that employees get independent legal advice on the effect of such clauses before signing them — unlike the case of the undercover reporter from the Financial Times who broke the Presidents’ Club scandal (see Weekly Notes, 29 January 2018). Madison Marriage reported that

“Hostesses were told to wear ‘black sexy shoes’, ‘black underwear’ and not to tell their boyfriends that it was a male-only event. According to the FT: Upon arrival at the Dorchester, the first task given to the hostesses was to sign a five-page non-disclosure agreement about the event. Hostesses were not given a chance to read its contents, or take a copy with them after signing.’ ”

The scandal, shortly followed by another one concerning the conduct of charity workers exploiting the local populations during disaster relief operations, added to concerns about safeguarding, charity governance, and the sort of abuses publicised by the #MeToo sexual harassment complainants, all which had also involved the abuse of NDAs.

Another benefit of legislation dealing with NDAs might be a reduction in the temptation of impetuous members of the House of Lords deciding to take the law into their own hands on this issue: see, for example, Parliamentary privilege and the rule of law, by David Burrows.

Courts

HM Courts and Tribunals Service has now published an evaluation plan for assessing the Flexible Operating Hours pilot due to begin on 2 September in two court centres. Under the pilots there will be late sittings (4:30pm to 7pm) involving both civil and family work at Manchester Civil Justice Centre and early (8am to 10:30am) and late sittings involving civil work (eg housing and small claims) at the County Court at Brentford. They were announced last month (see Weekly Notes, 24 June 2019) but on 19 July HMCTS added PDF links to their evaluation plan and a summary. The latter explains that

“The over-arching purpose of the evaluation is to provide independent research evidence as to whether or not the pilot has been successful, and in which ways. Potential benefits and dis-benefits of the project, and where possible, an estimate of costs, will be drawn out from a combination of research approaches. The evaluation will assess the impact of the pilots on eight domains of public user and professional experience and the utilisation of court rooms themselves, namely: • Efficiency of court room utilisation • Access to justice • Quality of justice • Speed of justice • Public user experience • Professional experience • Equality and diversity • Costs to users, professionals and the public.”

Following an invitation to tender (ITT) exercise, the contract to evaluate the pilots was awarded to a consortium of consultancy companies consisting of IFF Research and Frontier Economics teams. We await the results with interest and in the expectation that it will be robust, independent and comprehensive. (Although HMCTS talks about delivering a justice system designed around its users, it needs to recognise, for all sorts of reasons, that the system must also work for those who work in the system.)

The professional users’ access scheme, which enables barristers to pass through court security without the delay and inconvenience, and in many reported instances confiscations of harmless items and humiliation, is being extended to more courts.

Registration for the national scheme has begun with the Bar Council, which has developed an award-winning secure smartphone application for its members to use as identity for the scheme. Barristers can scan a barcode to enable entry without further security checks, other than random screenings, which will apply to approximately 10 per cent of court users.

There are also plans to extend it to solicitors (not before time).

The need for tight security at the courts is reinforced regularly by statistics released by HMCTS about the number of knives and other dangerous objects routinely confiscated from persons (not generally speaking members of the legal professions) entering the courts. The latest reiteration of this comes from a Freedom of Information request publicised by the BBC: Rise in knives and blades found at London family courts

The Law Society Gazette reports that HMCTS staff spent 30,000 hours dealing with court IT chaos. This refers to the “backlogs created by January’s courts IT meltdown”. Trials were delayed, jurors were unable to enrol and practitioners were prevented from confirming attendance that enabled them to get paid.

HMCTS published its annual report last week: we will have a look at this next week.

Legal professions

The Bar Standards Board (BSB) has updated its policy on the publication of disciplinary findings against barristers, according to a recent announcement. BSB’s current policy is limited to publication on its own website whereas the updated policy covers publication by all means including on the Bar Register and on request. The lengths of time for which such findings are made publicly available have also been revised.

“This update will help to ensure that the BSB continues to meet the requirements of data protection legislation and seeks to strike the right balance between public protection and the impact on the profession of publication.”

Legal Information

The Middle Temple Library Blog have produced an introductory guide to searching for case law and other material on the new Westlaw UK, to which existing Westlaw subscribers are being migrated. Many users still have access to the old site (familiar but slow). The aim of the blog post is to introduce users to the different ways in which the functions for searching, displaying results and opening content behave on the new site. There are copious illustrations, which is very helpful. These show how the “look and feel” of the site is more like that other Thomson Reuters legal product, Practical Law (formerly PLC).

NB: Westlaw UK still carries all of ICLR’s full text case reports, including The Law Reports (from 1865 onwards — currently AC, QB, Ch and Fam series), the Weekly Law Reports (WLR), Industrial Cases Reports (ICR), Business Law Reports (Bus LR) and Public and Third Sector Reports (PTSR). So, as it happens, do LexisNexis in the UK. But for additional ICLR content, such as our daily case summaries (WLR (D)), our “index cards” (which cover a massive range of other cases, reported and unreported, and link to BAILII and other services) and our own judgment transcripts and PDFs, ICLR.3 offers a convenient and focused search and display of content. For more info, or to sign up for a free trial, go to our Products page.

Commentary catchup

Lost voices in the process of courts digitisation, in which Judith Townend questions whether sufficient research or consultation is being done to measure the impact of court reforms on “quieter, less articulate or unrepresented voices” such as litigants in person, witnesses and victims, and the general public, whose access to information is often subordinated to that of more prominent stakeholders, such as the media. (Also posted on the Transparency Project blog.)

The Times, IPSO and the Mystery of the Systematic Breaches Sanction — Paul Wragg wonders why IPSO hasn’t used its full powers to regulate a persistent offender against the Editors’ Code requirement of accuracy.

Trends in criminal justice spending, staffing and populations 2008–2009 to 2017–2018 examines the real terms spending and staffing trends across the three criminal justice jurisdictions of the UK.

Nothing else will do…? in which Annie Bertram (author of Surviving Safeguarding) celebrates a recent family law case in which a judge challenged the routine assumptions about a family’s inability to care for a child and effectively sent the local authority away to do its homework properly.

Criminal defence in an age of austerity: Zealous advocate or cog in a machine? a guest blog by Jonathan Black which appears as the afterword to Transform Justice’s new report on criminal defence.

Dates and Deadlines

Online survey via Bar Talk newsletter

The Equality and Human Rights Commission (EHRC) launched a Criminal Justice System Inquiry in March 2019 to improve access to justice by ensuring anyone accused of a crime is able to participate effectively in the criminal justice process. This inquiry is looking at whether people with mental health conditions, cognitive impairments and neuro-diverse conditions including autism and ADHD are experiencing discrimination and being put at risk of miscarriages of justice due to a lack of support. [Respond to the survey]

And finally…

is from Katie Gollop and dug up some grave replies about bodysnatchers and the like.

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.

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.