Weekly Notes: legal news from ICLR — 7 May 2019

We welcome you back to the short new law term, with a roundup of legal news and comment, including courts, open justice, crime and punishment, and family law. And a bit of Brexit, with regret.

Courts

In January 2019 the House of Commons Justice Select Committee launched an inquiry into the HMCTS Reform programme “to consider the progress made with the reforms so far and the implications of planned changes, particularly in relation to access to justice.”

As explained in its Terms of Reference, the inquiry follows on from the July 2018 report of the Public Accounts Committee into Transforming Courts and Tribunals which focussed mainly on the deliverability of the reforms and their financial implications. (See The Progress of Reform — or lack of it. The PAC’s Transforming Courts and Tribunals inquiry report.)

Since late March the Justice committee has been publishing the evidence in batches, and the latest batch, published at the end of April, includes a submission (to which Paul Magrath from ICLR contributed) from the Transparency Project, including observations on the impact on family justice, transparency and access to legal information, which you can read here: Written evidence from The Transparency Project (CTS0021)

There are submissions from Sir Ernest Ryder, Senior President of the Tribunals and Lord Burnett of Maldon, Lord Chief Justice of England and Wales, from professional bodies such as The Law Society of England and Wales, The Bar Council, organisations such as the Housing Law Practitioners Association, Standing Committee for Youth Justice, JUSTICE, The Criminal Bar Association, Family Law Bar Association, Prison Reform Trust, and various individual practitioners, magistrates, journalists and other interested parties, as well as from “the other side” as it were, ie Ministry of Justice and an official response from HMCTS itself.

The Courts and Tribunals (Online Procedure) Bill was introduced to House of Lords and had its first reading on 1 May 2019. It provides, among other matters, for the drafting of Online Procedure Rules (which should be “both simple and simply expressed” — just like the CPR and FPR, which all too often aren’t) by an Online Procedure Rule Committee.

It is not clear whether meetings of the OPRC will take place online or by video conference, like the hearings for whose procedure they make rules, or in person like traditional court hearings. Apart from the usual judges and lawyers on the rule committee, there should be

“two other persons appointed to the Committee by the Lord Chancellor — (i) one of whom must have experience in and knowledge of the lay advice sector, and (ii) one of whom must have IT experience and knowledge relating to end-users’ experience of internet portals.”

On the subject of “end-users’ experience”, Legal Futures reports that Video technology for courts “still has long way to go”, according to Jo Hynes, a PhD researcher at Exeter University exploring the “legal geographies” of immigration bail hearings, who said the technology was not “sufficiently advanced” to guarantee applicants effective hearings.

The announcement of the Bill gave the Ministry of Justice yet another opportunity to publicise the online divorce and small money claims portals (“even more people set to benefit”) which have been available for well over a year now, in the continuing promotion of the HMCTS Reform project which is the subject of the Justice Committee’s inquiry (above).

Open Justice

Following an earlier consultation, Part 39 of the Civil Procedure Rules (CPR) has been amended in some significant ways. First, to bolster the open justice principle, it has tightened up the rules relating to when a hearing may be in private and when anonymity orders may be made.

Secondly, the definition of ‘hearing’ now expressly includes a video link or phone hearing, which means they are subject to the general rule that hearings should be in open court with the public entitled to attend (though how that is to happen in practice remains to be seen, or indeed heard). The rule now makes clear that consent is not a sufficient basis for any derogation from that general open justice principle, and emphasises that private hearings will only be permitted where this is necessary to secure the “proper administration of justice”.

Under CPR 39.2(5), where a court orders that a hearing be in private, or that a party or witness be anonymised, a copy of that order should, generally, be placed on the UK Judiciary website and non-parties may apply to have the orders varied or set aside. To explain the process, the Master of the Rolls, Sir Terence Etherton, has issued Practice Guidance on Publication of Privacy and Anonymity Orders.

By another important change benefiting transparency, CPR 39.9 now assists litigants in person (LIPs) in relation to transcripts of their hearings by providing:

“(5) At any hearing, whether in public or in private, the judge may give appropriate directions to assist a party, in particular one who is or has been or may become unrepresented, for the compilation and sharing of any note or other informal record of the proceedings made by another party or by the court.”

For further commentary on these amendments, see

NB: family courts are subject to different rules under the Family Procedure Rules, rule 27.10 of which provides that most cases should be heard in private (so pretty much the opposite of what happens in general civil courts) though under rule 27.11(f) accredited journalists — and under the pilot scheme in rule 27.11(ff) legal bloggers — can attend such hearings and report them within strict reporting and anonymity restrictions.

Politics

As reported in the final Weekly Notes for last term, the consequence of the Art 50 notice period extension to 31 October 2019 and any failure (which seems likely) to ratify a withdrawal deal by 22 May, is that we will need to participate in this year’s EU Parliamentary Elections. The result of the recent local elections was, however, seemingly anti-Brexit, with both the main pro-Brexit parties losing heavily, although the Tories lost much worse than Labour, and remainer parties like the Lib Dems and Greens doing well and gaining many seats.

Nonetheless, both the Tories and Labour chose (disingenuously) to present this as a generally pro-Brexit electorate expressing their frustration at lack of progress on Brexit by, er, voting for remainer parties. Quite so. Or indeed, quite Catch 22.

The only party that appears to be fully up to speed in preparing for the EU elections is, ironically, but perhaps not all that surprisingly, the Faragist Brexit Party. There has been some confusion as to whether this really is a political party but it seems that it is, and should be able to field candidates and abide by election law just like any other. However they (Farage himself) are being cagey about the identity of one big donor.

Although the Brexit Party will split the Brexit vote with UKIP and the mainstream pro-Leave parties, there is also a risk of splitting the remainer vote, which James Goldblatt, who tweets and blogs as @PegasusCorpInfo, describes as a problem of “disparacy” — a “hitherto non-existent noun” which “reflects the characteristics of heterogeneity, divergence and incompatibility inherent in the adjective ‘disparate’.” He is proposing the promotion of a potential strategy to

(a) cause a sufficiently critical mass of the UK electorate to communicate to the Labour leadership that the party would suffer excessively at the ballot box if it should fail to commit to a Second Referendum, with an option to remain, or facilitate approval of the Withdrawal Agreement;

(b) bearing in mind the D’Hondt System applicable in the electoral regions, to identify and focus the power of remainer votes in each electoral region. Given the current apparent refusal of TIG/Change UK and the Green Party to cooperate with each other or the LibDems, the motivation for this will need to come from recognisable and inspirational public figures: in any event, the message to do so will need to go viral. He proposes a campaign of social media messaging to encourage this approach.

He is not alone in being frustrated at the way things are going:

See also, Alex Andreou, Politics.co.uk The Remain tactic is now simple: Give Labour a bloody nose (also arguing for a strategic approach to remainer voting, aimed at persuading Labour to back a second referendum)

Crime and Punishment

On 4 May 2019 the Ministry of Justice announced that a specialist taskforce to tackle staff corruption in jails, the Counter Corruption Unit, had begun work and would “proactively pursue those suspected of corrupt activity in prison and probation services across England and Wales”. Working closely with law enforcement agencies, the unit’s 29 specialist staff, split into a national team and 5 regional teams, will “investigate and disrupt criminality, and bring more prosecutions against those causing harm behind bars”.

Other new developments on the prison front include:

  • A new Prison Drugs Strategy, launched last month, addressing in particular the growing problem of new psychoactive substances, which Russell Webster comments on here.
  • A reduction in prison violence, reported toward the end of last month, which Russell Webster welcomed cautiously, and which might have saved former prisons minister Rory Stewart’s job (he had offered to resign if violence did not fall) if he had not been whisked to another ministry (Int Dev) in the so-called Huawei Leak reshuffle. (He has yet to be replaced, however.)

On 3 May 2019 the House of Commons Public Accounts Committee published Transforming rehabilitation: progress review (HC 1747) which is highly critical of the privatisation policies introduced under the Lord Chancellorship of Chris Grayling:

In its haste to rush through its reforms at breakneck speed the Ministry of Justice not only failed to deliver its ‘rehabilitation revolution’ but left probation services underfunded, fragile, and lacking the confidence of the courts. Inexcusably, probation services have been left in a worse position than they were in before the Ministry embarked on its reforms.

In particular:

Mismanagement, risk taking and the lack of properly considered planning has badly let down offenders and there has been no noticeable improvement in the support offered to offenders since these reforms were first implemented, and they have failed to reduce reoffending by as much as expected, with the average number of reoffences committed by each reoffender actually increasing.

A few days later, on 7 May, the MOJ published its somewhat blithe update on Probation Reform, full of sunny optimism:

When we get probation right, we have the ability to change lives, rebuild families, prevent victims and create better communities.

The operative word there seems to be “when”. The reform programme follows the decision to end current community rehabilitation company (CRC) contracts early and a consultation last summer seeking “feedback on our proposals to improve the structure and content of probation services”. Things can only get better.

Though it sounds like a game, the chasing of suspects on mopeds by police in cars can be a deadly serious business. The use of ramming techniques to bring down suspects on speeding scooters, known as “tactical contact”, was widely publicised last year, amid fears about the lawfulness of any infliction of injury and the risk of death to suspects themselves or innocent bystanders. Now the Home Secretary, Sajid Javid, eager to be seen to be tough on crime, has announced that he wants a change in the law

“to ensure that highly trained police drivers, chasing suspected criminals on the roads, and driving to the very high standard required by their training, are better protected from the risk of lengthy investigation and potential prosecution”.

The suggestion is that “current laws do not recognise the training that police response drivers undertake and the tactics they may have to employ to respond to emergencies and pursue criminals”. That’s because

“Police drivers are currently held to the same standards as members of the public and have to rely on the discretion of the Independent Office for Police Conduct (IOPC) and the Crown Prosecution Service (CPS) to avoid misconduct investigations and criminal prosecution.”

The proposals follow a broadly supportive public consultation on Police pursuits. The technique of tactical contact operated by the Metropolitan Police appears to have helped reduce moped and scooter-related crime in London.

Just out: the Guardian reports that one Police driver who knocked suspect off moped may face misconduct case (under the existing law).

Quick update on two cases we’ve covered in Weekly Notes.

Julian Assange has been jailed for more than 11 months for the offence of absconding bail — which he did by hiding away in the Ecuadorian embassy for seven years, from which he was forcibly ejected / arrested recently. (See Weekly Notes — 15 April 2019.) Assange took refuge in the embassy after losing his appeal, at every level up to the Supreme Court, against extradition to Sweden for questioning on allegations of sex assault.

John Worboys, the so-called “black-cab rapist” whose Parole Board hearing last year sparked a row that resulted in a review of the way the board operates, now faces fresh criminal charges for allegedly drugging four women with the intention of sexually assaulting them. Two of the charges are for administering a stupefying or overpowering drug with intent to commit rape or indecent assault, and two for administering a substance with intent to commit a sexual offence.

Legal aid

The Legal Aid Agency’s online support team have announced a new webchat service to help with technical issues when using CCMS, CWA or E Forms, such as portal password resets or error messages during assessments and billing.

The Webchat service is available between 9am and 5pm Monday to Friday.

Family law

Tortoise is a new online platform, offering its members a mix of long-form journalism and commentary as well as publishing quarterly magazines and organising regular “ThinkIn” discussion events. The content is designed for people who take news seriously, and think seriously about the issues behind it. There’s a review of it on the Transparency Project blog: What has Tortoise taught us about slow news and ‘wising up’?

A recent ThinkIn was dedicated to the topic of two Tortoise articles by Polly Curtis on child protection and the crisis in the care system. She discusses the high number of children taken into care in the UK, the complex links between poverty and child protection/removal, and the siren calls of those who lure parents away from cooperating with social workers, lawyers and courts and turn them into ‘mums on the run’.

In a recent post on the Child Protection Resource blog, The State versus the family: does the Government no longer trust parents? barrister Sarah Phillimore describes attending the ThinkIn:

What I find most compelling is the intersection of the various narratives. What ‘story’ do we want to tell, and why? Is it about the child who needs ‘rescuing’ from the dangerous home? Is about the mother like Clarissa who sees her children once a year and counts herself ‘lucky’ to do so; she grieves every birthday, every Christmas. Is it about austerity and cuts and lack of services? Is it about distrust and blame and fear?

Its all of these of course. And that has been the challenge for journalists over the years. To take these many and unwielding narratives and from that find a story that the public want to read.

Employment law

The government’s consultation on confidentiality clauses or non-disclosure agreements (NDAs) has now closed. It ran from 4 March to 29 April 2019.

Though they can serve a legitimate purpose in protecting the parties to a settlement of a workplace dispute, “a number of cases have come to light where employers have used confidentiality clauses to prevent victims of workplace harassment or discrimination from speaking out”. The purpose of the consultation was “to better understand how confidentiality clauses and the legal framework around them work in practice” and “to assess what changes are required to ensure individuals are appropriately protected from their misuse”.

Professor Richard Moorhead wrote about the consultation and published his response on his blog, My quick response to BEIS consultation on NDAs

He has previously discussed the ethical aspects of NDAs and the role of legal regulators in preventing their abuse: Law Society’s Practice Note on NDAs: I vote for its withdrawal

Legal professions

Most lawyers are members of one or other of the professional bodies — Inns of Court, Law Society, Cilex etc that represent particular branches of the profession, and some also belong to specialised bodies such as the Criminal Bar Association, Criminal Law Solicitors Association etc. And some of these do make representations to the government over the abysmal rates of pay for legal aid, and help organised “industrial action” type protests or “no-returns” campaigns to support claims for better remuneration.

But the relentless effect of legal aid fee cuts has continued and now there is a suggestion that lawyers doing publicly funded work should join an actual trade union, which would be able to ballot and take collective action that might be more effective.

The Guardian (Barristers, solicitors and paralegals urged to join single trade union) reports:

“Legal Sector Workers United (LSWU), a new branch of the United Voices of the World (UVW) union, has been founded with the aim of bringing together everyone including paralegals, solicitors, barristers, receptionists, interns, personal assistants, administrative staff, cleaners and security guards.

The UVW has already organised walkouts and strikes among cleaners, security staff and receptionists at the Ministry of Justice over demands for the London living wage. The LSWU will oppose what it says is the sector’s “poverty pay” and inequality and will campaign for the restoration of legal aid that was cut under austerity.”

The proposal is the subject of a lively blog by @CrimBarrister: You Don’t Get Me, I’m Part Of The Union

“We all know that the problem with our previous pay negotiations has been twofold. The first is that the criminal Bar has played too nice, too polite, too much as if indulging in a game of Eton Fives where everyone plays by the rules, rather than negotiating with an opponent who is prepared to use every trick in the book, including bare faced fibs, to get what they want. And what the MOJ want is not to give us a penny more.

The second problem has always been that the MOJ will play off the Bar against criminal solicitors, causing the Bar’s negotiators to forget that we still need to be instructed by solicitors to actually get work in the first place — not to mention the support of our instructing solicitors if defence ‘no returns’ is to work. If everyone from both sides joined the LSWU or some similar officially unionised organisation which negotiated on our behalf, we might actually get somewhere.”

But whether lawyers join a new union or their existing representative organisations become more union-like, what is really needed is professional negotiators.

“ In the meantime, we have to forget about trying to gain sympathetic press coverage (it won’t happen) and simply start using tactics which cause as much trouble for the Government as they will do for us, because this is the only language they understand.”

ICLR news

ICLR are looking for law reporters. You need to be a member of the Bar of England and Wales or a solicitor on the Roll of the Law Society of England and Wales, and of a certain cast of mind (one that ponders whether that should read “caste of mind”— you get the picture). You should also be able to read, understand, and then summarise legal arguments and decisions in clear English prose, and recognise a new point of law of professional or educational importance and distinguish it from a routine re-hash of existing principles. Accuracy is paramount. We’re most of us fun and not all of us nuts. If you think you can cut it, write to recruitment@iclr.co.uk

Dates and Deadlines

Grays Inn — 9 May 2019, 6pm

Sir Andrew McFarlane, President of the Family Division and Bencher of Gray’s Inn, will deliver a talk on ‘The Children Act 1989: Thirty Years On’. For booking details, click here.

Edinburgh — Friday 10 to Sunday 12 May 2019

Click here to download the programme, registration form and accommodation details.

Bonavero Institute of Human Rights, Oxford — 10 Jun 2019, 9:45am to 6:00pm

The University of Oxford is hosting a one day conference to mark the 20th anniversary of the Civil Procedure Rules coming into force on Monday 10 June 2019. View the Conference Brochure

Keynote speaker, Sir Terence Etherton, Master of the Rolls, plus a frankly star studded cast of former top judges and academics and practitioners.

And finally…

is from Dominic Regan on legal self promotion:

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.