Weekly Notes: legal news from ICLR — 8 October 2018

This week’s roundup of legal news and commentary includes diversity at law, discrimination in the courts, legal aid research, and Brexit. But we begin with more civil partnerships.

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Family law

The Government has recently announced that civil partnerships will be available to all couples, not just those which are same-sex. The development follows the decision of the UK Supreme Court in R (Steinfeld) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32; [2018] 3 WLR 415 that the Civil Partnership Act 2004 was incompatible with the European Convention on Human Rights.

Interestingly, back in June 2014 (shortly after equal marriage became available) the Department for Culture, Media and Sport published a Review of civil partnerships following a consultation. It concluded that, while most respondents opposed the closure of civil partnerships to new gay couples, or even the abolition of civil partnerships altogether, “Over three-quarters were against opening up civil partnership to opposite sex couples.”

The report concluded with the words “ Given the lack of consensus on the way forward, the Government will not be making any changes.” However, there now seems a clear indication that, whether or not there is popular support for the move, there is a legal justification. And for the second time this year, a decision of the Supreme Court is forcing the government to undertake family law reform.

The move may also benefit unmarried but cohabiting couples, according to Conor Monaghan writing on the UK Human Rights Blog:

“Concerns have previously been raised about the precarious state of cohabiting couples, many of whom incorrectly believe they possess similar rights to married couples. Widening access to civil partnerships may go some way to solving this issue.”

He adds that the Scottish government has now launched a consultation on whether heterosexual couples ought to be able to enter into civil partnerships. (This seems, frankly, a waste of time and money given the UK Supreme Court’s decision. Unless of course they conclude that the simplest thing would be to abolish civil partnerships altogether — forcing a couple from, say, Gretna Green who want one to elope to England for the purpose.)

Legal system

Black History Month seems a suitable moment to consider the questions of diversity in the legal profession, and how racial factors affect those caught up in the justice system.

In terms of the former, MaameYaa Kwafo-Akoto, a senior associate in Allen & Overy’s banking practice and founding member of their BAME committee, asks When it comes to racial diversity, have we been asking the right questions? Writing in The Lawyer, she suggests that the question we should be asking is not “What can law firms do to help black lawyers?” but rather

“why aren’t we harnessing the best talent in the market, regardless of race? We should be challenging ourselves to look beyond the preconceptions of what a lawyer should look like, and beyond the status quo. I don’t think we really know what we’re missing. There are outstanding black lawyers out there... Lawyers who bring a unique view point and a different skill set to the table, advantages that anyone from a ‘different’ background would bring.”

This chimes with a comment that one has often heard: that recruiters all too often look in the mirror for their ideal candidate — for clones of themselves and their cultural background — instead of finding someone whose different background and life experience would enrich the organisation and, frankly, make it fitter to survive. (If you only look for someone to ‘fit in’, you’ll never find someone who really ‘stands out’.)

Diversity in the legal and other professions is nevertheless improving, albeit more slowly the higher you go in seniority. Last week, for the first time, we had a majority of female justices in the UK Supreme Court.

Other countries have got there first though, as Eoin O’Dell, on his blog, Cearta.ie, observes:

“There was some chatter online yesterday about the fact that the UK Supreme Court sat for the first time with a 3–2 female-male majority. The Supreme Court of New Zealand had done so last year. Despite the complement of female justices over the last 20 years, the Supreme Court of Canada doesn’t seem to have had a female majority panel yet. And there haven’t been sufficient female justices on the High Court of Australia for it to have happened there. Against that backdrop, I thought I’d find out if and when the Irish Supreme Court had first sat with female majority panels, and this is what I found.

The first majority female panel in the Irish Supreme Court happened more than EIGHTEEN years ago.”

At an evening co-hosted with First 100 Years, four current or former female chief justices — Australia’s Susan Kiefel, Britain’s Baroness Hale, Canada’s Beverley McLachlin and Ghana’s Georgina Wood — talked about their lives and careers to a packed house at Gray’s Inn, as Dana Denis-Smith reports in the October 2018 edition of Counsel Magazine.

The fact that such women are regarded as pioneers is an indication of how rare such appointments still are and how far judicial diversity still has to travel in the 21st century. But appointments at the top can only come from a pool of suitable talent at lower levels, and this seems to be what the Judicial Appointments Commission is attempting to achieve with its latest initiative. On 4 October the Judicial Diversity Committee launched a “support programme for those interested in applying to the Deputy High Court Judge selection exercise”. The Judicial Support Scheme is explained as follows:

As this is a diversity initiative, places are being limited to candidates from groups that are not yet fully represented in the High Court, in particular women, BAME candidates, solicitors, legal academics, employed lawyers and those from a less advantaged background.

What will the scheme offer?

Work shadowing (Nov 2018-Jan 2018). The opportunity to shadow a High Court judge for up to two days to give candidates an insight into the judge’s work (in and out of court), ask questions about the role and decide whether a High Court appointment is really for them.

Workshop: date to be confirmed A one-day workshop will offer guidance on how to prepare for the selection exercise. It will also provide tips and advice on presenting evidence against the Judicial Appointments Commission’s qualities and abilities to suit the distinct stages of the selection process.

The programme is intended to help candidates make a stronger application to the Deputy High Court Judge selection exercise; but once they have completed the programme, they will have to compete on merit with the other applicants for the exercise.

Last month marked the first anniversary of David Lammy MP’s comprehensive Review into the the experience of Black, Asian and Minority Ethnic people in the criminal justice system. It made numerous recommendations, some of them radical. Writing in The Lawyer, ICLR’s Paul Magrath examines what has happened in the year since its publication in September 2017. He concludes:

A year is perhaps too soon to see the effect of so comprehensive a survey as the Lammy Review. The government has responded and while some of its comments on the recommendations may have seemed slightly complacent, there have been definite and visible developments in response to some recommendations, and assurances of further research on others.

As well as the official and unofficial discrimination in the legal system, people of BAME background also face the constant drip-feed of media discrimination, particularly in the tabloid press. Writing in The Conversation, republished in Inforrm’s blog, David Wright and Gavin Brookes discuss how “the right-wing press demonises people living in the UK just because their first language isn’t English” and how, thereby, it has “weaponised the ability to speak English”. Analysing a collection of more than 2,500 articles concerned with the topic of speaking English, published in right-wing British newspapers between 2011 and 2016, they note how:

“Immigrants with first languages other than English were frequently represented as criminals and financial burdens on the country, threatening the cultural fabric of the UK. They were also represented as being poised to displace native English speakers from their dominant position in society.”

Legal Aid

Jon Robins of the Justice Gap and Dr Daniel Newman of Cardiff University, supported by the City law firm Ashurst, are collaborating on a project to examine the front-line effects of the legal aid cuts introduced five years ago under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) (which came into force on 1 April 2013). In a new series of posts on The Justice Gap, they combine academic and journalistic research “to better understand the experience of people as they go through our justice system” in the legal aid desert left by the LASPO cuts.

As part of this project, they are also crowdsourcing stories from lawyers on the front line of the justice system, working in these areas. They are inviting contributions from anyone who thinks they have a story to tell that can help them to paint a picture of civil justice today.

Lawyers can complete the survey here.

(There is a second survey for non lawyers asking for peoples’ experience of the justice system, see here.)

Brexit

“In these circumstances, ascertaining the legal principles that apply to the use of article 50 and its consequences are a matter of great practical importance; to suggest otherwise appears to me to be manifestly absurd. The present situation should be contrasted with the position before article 50 was invoked, when the consequences of that act and the possibility of revoking it were truly hypothetical. Furthermore, many of the consequences of the article 50 declaration will become material as soon as the two-year time limit specified in that declaration comes into effect, on 29 March 2019. After that, the possibility of revocation will plainly be hypothetical.”

So stated Lord Drummond Young (at para 59), sitting with Lord Carloway, the Lord President, and Lord Menzies, in the Inner House of the Court of Session in Scotland, concurring in their unanimous decision, in Wightman v Secretary of State for Exiting the European Union [2018] CSIH 62 at [3], to refer to the Court of Justice of the European Union 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”.

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.

See also: Prof Kenneth Armstrong, via the Verfassungsblog, discussing the subject matter of the referral: Can An Article 50 Withdrawal Notice be Revoked? The CJEU is Asked to Decide

If Art 50 can be revoked, Brexit can be stopped. But should it be?

In his latest post, David Allen Green on the Jack of Kent blog says the fact of Brexit, the date of exit, is a fixed point in an otherwise uncertain world. In A “Burma Brexit” — why Remainers should allow the Brexit mandate to be discharged he says that any idea of reversing the referendum result is unrealistic. That doesn’t mean it will be easy.

“The UK has got itself into a bit of a problem.

The irresistible force of political legitimacy and the immoveable object of policy reality.

What if anything can and should be done?”

What he proposes is that the UK should agree with the EU27 “to convert the transition period into a permanent association agreement”. Such an arrangement could keep the UK in the EU’s customs area and could allow the UK to be in substance, if not in form, part of the single market. But it would require a positive attitude that many remainers lack and an attention to detail that most leavers disdain, so… (*Big sigh*)

But the point is, victory of a sort could be snatched from the jaws of what would otherwise be humiliating retreat. He compares this to the way the British made the best of their withdrawal from Burma during World War II.

ICLR News

Last week Team ICLR was in Luxembourg for the 37th Annual Course of the International Association of Law Libraries. We shall be reporting on this on our blog in due course.

Dates and deadlines

The London Legal Support Trust is organising a fundraising walk along the Thames on October 27th 2018.

Led by Lord Justice Gross (walking) and Lord Justice Haddon-Cave (running) #WalktheThames will raise funds for much needed legal advice. You can either walk or run a full marathon, starting at Norton Rose Fulbright’s offices near London Bridge at 8.30 am, or a half marathon starting in Putney at mid-day. So you can choose both your speed and distance. (Or, presumably, mix it up and run the first bit before walking the second?) Full details via LLST http://www.londonlegalsupporttrust.org.uk/our-events/walk-the-thames-2018/

Law (and injustice) from around the world

Last month 20 international lawyers and human rights experts, from six countries, were in Colombia for an intense week undertaking a fact-finding mission and advocating for the protection of human rights lawyers and defenders. The International Caravana Juristas is an initiative of professional solidarity on the part of the legal profession in support of justice, rule of law and the defence of human rights in Colombia.

Since the signing of the Peace Agreement in November 2016, hundreds of human rights defenders have been assassinated and the UN has called for decisive action to stem the tide of violence enveloping many regions. Colombian’s official state Ombudsman has reported that a human rights defender is killed every three days. The 2018 presidential election was highly polarised and divisions across society have deepened in the past two years, since the last delegation of the International Caravana of Jurists.

You can read more about it here:

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.

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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.

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