Weekly Notes: legal news from ICLR, 22 May 2023
This week’s roundup includes crypto regulation, judicial diversity, new legislation, and arbitral transparency. Plus recent case law and commentary.
New look, new ads
We’ve also launched an exciting new advertising campaign, with posters featuring images from Lincoln’s Inn Library, to promote our AI-drive research tool, Case Genie. You’ll find them up and down the escalators and on the platforms at Chancery Lane (as shown), and in Temple and Blackfriars tube stations.
Later this week, Team ICLR will be off to Canada to attend the conference of the Canadian Association of Law Libraries. For more on this, see our post #CALLACBD2023 — Hamilton, here we come!
Crypto currencies do not have any intrinsic value and the industry promoting them is still a “Wild West”, according to the House of Commons Treasury Committee. They should therefore be regulated as a form of gambling rather than financial services.
In their latest report, Regulating Crypto (HC 615) the committee, which says it has been paying close attention to cryptoassets for many years, says
“unbacked cryptoassets pose significant risks to consumers, given their significant price volatility and associated risk of losses. They can consume very large amounts of energy and are also used by criminals in scams, fraud and money laundering”.
While the benefits that innovations such as distributed ledger technologies may bring to financial services in the future remain unclear, the significant risks to consumers and the environment are real and present. The committee therefore welcomes government plans for regulation, which “should help to foster innovation and maximise any potential benefits of cryptoasset technologies for the UK, while also mitigating risks”. But:
“We are concerned that regulating retail trading and investment activity in unbacked cryptoassets as a financial service will create a ‘halo’ effect that leads consumers to believe that this activity is safer than it is, or protected when it is not. We therefore strongly recommend that the Government regulates retail trading and investment activity in unbacked cryptoassets as gambling rather than as a financial service, consistent with its stated principle of ‘same risk, same regulatory outcome’.”
Like gambling, cryptoasset speculation can be addictive, as well as speculative and financially risky. The committee cite research by the Bank for International Settlements that suggests the market is largely sustained by new entrants, who buy as the price rises, while the fewer large established holders sell, cashing out at the new entrants’ expense. (Which frankly makes it sound a bit like a chain letter. Or blockchain letter, perhaps.)
See also the Out-Law blog: Cryptoassets should be regulated as gambling, say MPs, where Hinesh Shah, senior associate forensic accountant at law firm Pinsent Masons, commented that if cryptoassets were regulated as gambling then firms would likely face increased compliance burdens, but it could also spur market consolidation.
“If crypto firms were regulated similarly to the gambling industry in Britain, they would likely face a significant increase in compliance requirements,” said Shah. “This could include licensing, customer due diligence, and responsible gambling practices. Compliance costs could rise, potentially impacting smaller crypto firms with limited resources. … This could result in a concentration of power and market share among a few dominant crypto firms,” he said.
Earlier this year we reported on the Financial Conduct Authority’s plans for regulation of the marketing of crypto assets — but that did not cover regulation of the services or assets themselves: see Weekly Notes, 13 February 2023.
Arbitration award transparency
In recent years the publication of court judgments has increasingly been seen as an essential aspect of open justice, even where the hearing has been held in private. Since 2014 judges in the family courts and in the Court of Protection have been urged to publish judgments from cases heard in private, with a view to boosting public awareness and knowledge of the work of those courts, and to ensure proper public scrutiny of cases in which draconian and life-changing decisions are often made. Such cases may need to be appropriately anonymised, but the benefit to public legal education is evident.
Transparency of other court and judicial processes has been similarly boosted, for example in the case of reconsiderations of Parole Board decisions over the safety of release of potentially dangerous prisoners, which are now routinely published via BAILII; and in the publication of sentencing remarks from the Crown Court.
Now there has been a suggestion by a former President of the Supreme Court, Lord Neuberger, that the usually confidential and therefore “secret” determinations of arbitration tribunals should likewise be published. Traditionally, commercial arbitration has been seen as a form of alternative dispute resolution which avoids the publicity of litigation, since it is rare for such cases to be anonymised, let alone heard in private, unless a convincing case is made for doing so to protect commercially sensitive information. But many disputes are referred to arbitration because, under international contracts, it is convenient to identify both an applicable law and a neutral forum for the resolution of disputes.
What sometimes happens is that the arbitration itself gives rise to a dispute — on the grounds serious irregularity, error of law, or lack of jurisdiction. Cases are then referred to the High Court under various provisions of the Arbitration Act 1996, and at that point they burst into public view and can usually be reported without being anonymised.
The point raised by Lord Neuberger was that the speed and convenience of arbitration as a method of dispute resolution does not necessarily depend on its confidentiality. Factors such as international enforceability of awards may be more important. Moreover, the publication of arbitration awards might benefit the process: many contain rulings on points of law and publishing them could be helpful. However, if privacy is important to parties, then it should be respected.
See Law Society Gazette, Neuberger: public arbitration awards worth considering
In this context it is interesting to recall the speech of Sir John Thomas, when he was Lord Chief Justice, in the 2016 BAILII lecture entitled Developing commercial law through the courts: rebalancing the relationship between the courts and arbitration, where he said that
“the clear consequence [of the priority given to arbitration] that can be seen today is that far fewer developments of the law are made in areas where the probability is that the case has had to begin in arbitration. As arbitration clauses are widespread in some sectors of economic activity, there has been a serious impediment to the development of the common law by the courts in the UK, particularly though the Commercial Courts in London.”
His point was that the courts were being deprived of cases the resolution of which might contribute towards the development of the common law. Lord Neuberger’s point is more radical: that the awards themselves might contribute to the law.
Diversity boost for recruitment
The Lord Chancellor Alex Chalk KC MP has announced plans to broaden the eligibility criteria for applicants and ensure the judiciary is able to draw on a wealth of experience, by allowing legal executives with seven years’ experience to apply to become recorders and Upper Tribunal judges.
Chartered Institute of Legal Executive lawyers are not required to hold a university degree and gain their legal qualifications while working. They are generally more diverse in terms of gender and social background than other legal professionals and many join the profession mid-career or following a break. Previously, they could only apply for judicial roles overseeing less complex cases in the civil, family and magistrates’ courts and the first-tier tribunal.
According to CILEX Chair Professor Chris Bones:
“Women and ethnic minorities are currently under-represented in our judicial system and we need a judiciary that is representative of the society we live in to promote confidence in the rule of law. As one of the most diverse parts of the legal profession, CILEX is a key solution to accessing talent of greater diversity.”
The change will be effected by a statutory instrument, subject to the approval of Parliament.
Renters (Reform) Bill
The government published new legislation abolishing fixed term assured tenancies and assured shorthold tenancies and making other reforms to the rental property market. The Renters (Reform) Bill was prepared by the Department for Levelling Up, Housing and Communities, under Michael Gove MP, the Minister for Levelling Up.
According to the government guide, the Bill will “bring in a better deal for renters”, including abolishing ‘no fault’ evictions and reforming landlord possession grounds. It will legislate for reforms set out in the private rented sector white paper published in June 2022.
It has been described as “the largest reform to tenancies in England since 1988” — by no lesser an authority than Giles Peaker, solicitor and author of expert commentary on housing law, via the Nearly Legal blog, where he provided his own overview of the new Bill:
- Renters (Reform) Bill — the good, the potentially good and the ugly. Part 1
- Renters (Reform) Bill — overview Part 2
Terrorism (Protection of Premises) Draft Bill
The Terrorism (Protection of Premises) draft Bill would require venue operators to consider the risk of terrorist attacks and to take proportionate and reasonable measures to prepare and protect the public. The draft Bill, also known as Martyn’s law, has been laid before the House for pre-legislative scrutiny by the Home Affairs Committee. The alternative name is a reference to Martyn Hett, who was killed in the Manchester Arena attack, and the government thanked his mother Figen Murray for the “significant contribution she has made through her tireless campaign to introduce the Bill”.
It follows a government’s manifesto commitment to improve public security in the face of ongoing terrorist threats and to create a culture of safety, harnessing private sector resources to drive improvements.
The legislation seeks to improve protective security and organisational preparedness at a wide range of public premises across the UK. Those responsible for certain public premises will be required to consider the threat from terrorism and implement reasonably practicable and proportionate mitigating measures. It will also establish an associated inspection and enforcement regime (ie a regulator), which will seek to educate, advise, and ensure compliance with the requirements of the Bill.
Only certain types of premises will qualify for the duty. Premises with a capacity of 100 to 799 people will owe a “standard duty” while those with a capacity of 800 people or more will owe an “enhanced duty”. The regulator will apply a “reasonably practicable” test to carefully consider what it is reasonable to expect of a specific premise; there will not be a one size fits all approach.
The draft legislation follows a government consultation which received 2,755 replies. The government published its response to the consultation in early 2022.
See also Out-Law News: Sports, entertainment, health and education venues face terrorism ‘protect duty’
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
CRIME — Drugs — Offer to supply: R v Laskowski (Piotr), 12 May 2023  EWCA Crim 494;  WLR(D) 227, CA
EMPLOYMENT — Contract of employment — Incorporation of terms — Variation of terms: Cox v Secretary of State for the Home Department, 19 May 2023  EWCA Civ 551;  WLR(D) 230, CA
EMPLOYMENT — Unfair dismissal — Redundancy: Lovingangels Care Ltd v Mhindurwa, 12 May 2023  EAT 65;  WLR(D) 229, EAT
DEFAMATION — Libel — Serious harm — Costs: Banks v Cadwalladr, 28 Feb 2023  EWCA Civ 219;  WLR(D) 105, CA (Dame Victoria Sharp P, Singh, Warby LJJ); 17 May 2023 Final order, CA
LOCAL GOVERNMENT — Ombudsman — Powers: R (Piffs Elm Ltd) v Commission for Local Administration in England (R (Tewkesbury Borough Council) v Commission for Local Administration in England), 10 May 2023  EWCA Civ 486;  WLR(D) 212, CA
PRACTICE — Pleadings — Amendment: CNM Estates (Tolworth Tower) Ltd v Carvill-Biggs (Practice Note), 05 May 2023  EWCA Civ 480;  WLR(D) 214, CA
REVENUE — Corporation tax — Capital allowances: Revenue and Customs Comrs v SSE Generation Ltd, 17 May 2023  UKSC 17;  WLR(D) 228, SC(E)
REVENUE — Extra-statutory concession — Time limit: R (Murphy) v Revenue and Customs Comrs, 15 May 2023  EWCA Civ 497;  WLR(D) 220, CA
TORT — Cause of action — Conversion: Dalston Projects Ltd v Secretary of State for Transport, 10 May 2023  EWHC 1106 (Admin);  WLR(D) 215, KBD
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Local Government Lawyer: Judge rejects challenge over council’s alcohol detox policy: R (F) v Surrey County Council  EWHC 980 (Admin);  WLR(D) 208, KBD
DAC Beachcroft: ClientEarth v Shell: A reality check for climate activist litigation? ClientEarth v Shell Plc & Ors  EWHC 1137 (Ch), Ch D
Nearly Legal: Suitability duties and reasonable preferences that weren’t unreasonable: R (Jaberi) v Westminster City Council  EWHC 1045 (Admin);  WLR(D) 213, KBD
UK Supreme Court Blog: New Judgment: SSE Generation Ltd v Revenue and Customs Comrs  UKSC 17, SC(E)
Out-Law: UK Supreme Court clarifies law on ‘continuing nuisance: Jalla v Shell International Trading and Shipping Co Ltd  UKSC 16, SC(E)
Out-Law: High Court clarifies effect of change of law during ongoing group litigation orders: Axa Sun Life plc v Inland Revenue Comrs  EWHC 944 (Ch), Ch D
Free Movement: Afghan Scheme does not stray from original policy intention by restricting eligibility: R (GA) v Secretary of State for the Home Department  EWHC 871 (Admin), KBD
Electronic Immigration Network: High Court Considers Cart JR Ouster Clause R (Oceana) v Upper Tribunal (Immigration and Asylum Chamber)  EWHC 791 (Admin), KBD
Law & Religion UK: Door-to-door evangelism and data protection: Jehovah’s Witnesses v Finland (Application no. 31172/19); Legal summary;  ECHR 388, ECtHR
Free Movement: Judicial review of Windrush compensation dismissed on grounds of abuse of process: R (Vanriel) v Adjudicator’s Office  EWHC 925 (Admin);  WLR(D) 207, KBD
Global Freedom of Expression (Columbia University): Ibragimova v. Russia: expands expression: Ibragimova v Russia (Application no. 68537/13), ECtHR
Dates and Deadlines
LLST Walk for justice
With Summer just around the corner (finally), the London Legal Walk is fast approaching, says London Legal Support Trust.
The walk is only 3 weeks away meaning the deadline to register your team is only 2 weeks away! You have until Wednesday 7th June to register your team.
Tweet of the week
in which barrister Nadia Silver brings us courtroom bingo.
Just wondering what happened to “Archbold loudly dropped” (just as opponent asking awkward Q in XX) — as seen in Rumpole.
That’s it for now. Thanks for reading, and thanks for all your toots, tweets, posts and links. Work hard, be kind, take care.
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.