The Model Law Commission: a Big Voice for London students
We review the Model Law Commission Report 2019 and discover the views of intelligent and dedicated school pupils on how the law of the land should be improved. … Continue reading
Last week Big Voice London launched its seventh annual Model Law Commission report. As CEO Victoria Anderson explains,
“The purpose of the Model Law Commission is to provide young people between the ages of 16 and 18 years old with the opportunity to mirror the work of Law Commission, by learning about and expressing their views on issues which exist within certain areas of law and in turn, what reform would be beneficial.”
Big Voice London is a social mobility and legal education charity, which seeks to engage young people from non-traditional backgrounds between the ages of 16 and 18 years old with law and legal policy, with the aim of assisting them in entering the legal profession should they choose to pursue a career in law. It also runs moots and other legal training activities, and encourages practising lawyers to act as mentors to the young people who take part in its projects.
Over a period of three months the A-level students who participate in the Model Law Commission have to learn about the legal topic, do their research, and come up with proposals for solutions just like the actual Law Commission itself. They do not shy away from difficult or controversial topics. The four covered this year are
- Assisted dying
- Surveillance
- Gig economy
- Adverse possession
The launch took place at Portcullis House, where grown up lawmakers have their offices. It was hosted by Steve Baker MP. He began by saying school students should nurture their ambition to study and practise law, whatever their background, and not be put off by anyone who said otherwise. The students themselves then presented their reports. Each report was the work of a team, who took turns to present it. And if the reports are anything to go by, we have a generation of imaginative and forward-thinking new lawyers in the making.
The reports are published in a handsome full colour A4 book with a cover image by Isobel Williams, who will be known to many readers as an occasional artist at the UK Supreme Court. The publication has been sponsored by LexisNexis and the project has the support of a number of law firms and chambers. What follows is a summary of the four teams’ proposals on their chosen legal problem.
Adverse Possession
The Property, Family and Trusts team tackled the doctrine of adverse possession, which they defined as “the occupation of land by a person not legally entitled to it”. If done continuously for a specified period (normally ten or twelve years), and without the owner’s consent, the land becomes theirs.
Attempts to reform the law (eg under the Land Registration Act 2002) have not gone far enough, according to the team:
“Over the past few months, we have constructed multiple reform ideas to adjust and improve the current legislation, based on public feedback and valuable expertise provided by legal professionals. Across this report you will see evidence to validate these reform ideas, that we believe will help to reshape this law positively. We believe adverse possession is in need of reform for two main reasons:
1. it is a draconian law that is flawed and lacks clarity;
2. the current law of adverse possession clashes with the legal maxim that the English courts will not enforce a cause of action which arises from illegal or immoral conduct, which is unfair and unjust.”
They propose, and set out evidence and statistics to support, the following changes:
“1. Ensure that any adverse possession claim which has been made through criminal or fraudulent activity is not allowed to be successful: this is to ensure that the law of adverse possession aligns with the legal maxim explained above;
2. Compensation from the new owner of the land to the original owner of the land if adverse possession has taken place: currently, if adverse possession occurs, the original proprietor loses ownership to the new owner who has adversely possessed the land. Therefore, we believe it to be justifiable to provide the original proprietor with compensation. We suggest that the new proprietor pay 10% to 20% of the land or property value, if they have added value to the land or property, or 30% to 40% of the land or property value if they have not added value or damaged the land to the original proprietor;
3. Change the time period in which a claim for adverse possession can be made from 12 to 20 years: increasing the squatting time from 12 to 20 years will ensure that successful adverse possession claims are fair and reasonable;
4. Ensure that all land is registered land and that landowners have up-to-date contact details: the importance of up-to-date contact details will eliminate the chance that proprietors are not aware of what is happening with their land and have the chance to defend adverse possession claims;
5. Increase people’s awareness of the possibility of adverse possession: educating people through contracts and teaching landowners so that they understand what their rights are and what could happen to their land if it is left unoccupied for long periods of time.”
The Gig Economy
The Commercial and Common Law team tackled the very contemporary issue of the Gig Economy and the protection of workers’ rights. They focused on three areas of reform: the definition employment status, gig workers and zero-hour contracts.
Currently there are three broad categories of people carrying out work for others: employee, worker and self-employed. Both employees and workers have contracts of employment, but a common abuse is for employers to pass their workers off as self-employed. To make the definition of ‘worker’ clearer, the team proposed that this category be split into two levels:
- level 1 workers would have more rights and obligations, work longer hours, and have more security, whilst retaining the flexibility of the ‘worker’ category as compared to employees.
- Level 2 workers would be more casual or irregular, work fewer hours, and be under fewer obligations, eg having the freedom to refuse work under a zero-hour contract.
The team define a zero-hour contract as “a type of contract between an employer and a worker, where the employer is not obliged to provide minimum working hours and the worker is not obliged to accept any work offered.” They point out that
“These contracts offer flexibility to workers who may not want traditional jobs or a set number of hours. The benefits to businesses by employing under these contracts include flexibility, growth and affordability.”
Current regulation prevents employers imposing an exclusivity clause preventing workers under zero-hour contract working elsewhere if the employer has nothing for them. They are also entitled to the minimum wage and annual leave. But the team propose the law be tightened further to prevent exploitation:
“…we believe those who work over a duration of 12 months and regularly complete a minimum of 30 hours a week should be entitled to an enforceable contract and have the choice to become an employee. They would be able to claim a minimum hour contract reflecting the current number of consistent hours already completed or remain on a zero-hour contract. This would give them the opportunity to choose between a consistent income or remain flexible under a zero-hour contract.
“Additionally, employers should only be entitled to dismiss an employee before their 12-month period if there is reasonable cause. This would prevent loopholes within the reform and ensure employers are unable to take advantage of workers under these contracts.”
The use of the expression ‘gig’ is explained as originating as a description of the musical engagements of jazz musicians in the 1920s. As the team observe:
“The gig economy is both temporary and flexible, this is ideal for the average student, who may not potentially bear the expense of bills and therefore need a stable and consistent income. The gig economy does have its benefits including flexible working hours, permitting individuals to perhaps work at a time best suited to them. However, the gig economy undermines traditional full-time employment, which has characteristics of stable hours which aligns with a stable income. In the England and Wales the amount of gig economy works has increased to over 4.7 million workers.”
A change in tax rules aimed at preventing avoidance now treats everyone as being an employed person unless the contrary is proved: see IR35 (2020). The team proposes several reforms “to ensure that laws regarding gig workers are not exploitative to both the workers and employers.” First,
“an amendment to the new IR35, providing three categories for employees, workers and self-employed, to align with the form of employment law. This will ensure those falling within each category are, firstly paying the correct taxes and ensures that the amount of unpaid taxes decreases, and secondly, the taxes being paid afford the correct and appropriate rights.”
The second would be to require companies to publish to HMRC a detailed report of their employees and workers, showing what rights and benefits they have been afforded. Companies found not granting the correct rights to their employees would then be fined or sanctioned.
Other potential reforms would be to provide a definition of a ‘gig worker’ within the Employment Rights Act 1996 and IR35, and to add a “per gig” minimum wage alongside the hourly minimum, to tackle gig work that often takes less than an hour to perform.
Surveillance
The Public Law team tackled another very contemporary problem: mass surveillance and bulk data collection and retention, particularly in relation to the prevention and detection of crime. A key issue is lack of proper oversight of the use of the powers given to or taken by public authorities.
The team proposes a number of things to improve the current legislation. First, they would include provisions from the General Data Protection Regulation (GDPR) in the Investigatory Powers Act 2016, namely
“1. Article 13, [which] states the information that is to be provided when personal data is collected from the data subject… This would result in data subjects being made aware that their communication data has been acquired under powers in the IPA 2016.
2. Article 15, [which] states the right of access by the data subject, … The effect would be that data subjects are able to enquire to public authorities and receive confirmation whether they have used powers under the IPA 2016 to access their data.
3. Article 17, [which] gives the right to erasure… This would result in data subjects being able to require the erasure of their data communication (before the 12 month handling period expires) which have already been collected under powers of the IPA 2016.”
The second proposal is to have a creation of independent select committees and regulatory bodies to review government authorities’ usage of the IPA 2016.
Predictive policing and the gang matrix
The team go on to examine in some detail the use of surveillance data in support of predictive policing (identifying likely trouble areas or persons in advance) and by way of specific example the “notoriously flawed” Gang Violence Matrix used by the police. The team conducted a survey of public attitudes which showed that “there is a belief from the general public that there is a link between the use of surveillance tools and the reduction of street crimes” but also “the majority of respondents believed that the police used their surveillance tools in a discriminatory manner.”
Looking at the way in which the police define what is a gang and who is a member, “it is evident that the police’s aims of tackling ‘gang crime’ may simply lead to over-policing of ethnic minorities, especially as the ‘gang’ label is associated with black men and boys.”
Further risk of prejudice and bias occurs in the use of Automated Facial Recognition software. The team recommend better governance of the use of facial images, including adherence to Principle 7 of the surveillance Code of Practice (established under section 30 of the Protection of Freedom Act 2012):
“the disclosure of images and information should only take place when it is necessary for such a purpose or for law enforcement purposes’ and ‘surveillance camera system images and information should be subject to appropriate security measures to safeguard against unauthorised access and use.”
Assisted Dying
The Criminal Law team considered what they recognise “is a controversial topic with conflicted views on the morals and ethics of the procedure”, namely assisted dying (AD). They focus on possible amendment of the Suicide Act 1961 which continues to criminalise a person found to have encouraged or assisted the suicide or attempted suicide of another person (though any prosecution requires the consent of the Director of Public Prosecutions).
The team distinguish ‘assisted dying’, defined as “helping someone who wants to terminate their life, thus to relieve them from their pain”, from euthanasia, which “goes beyond assistance” as it entails someone (usually a doctor) “actively taking someone’s life on compassionate grounds”.
The current law lacks clarity, as demonstrated in responses to a survey conducted by the team. They consider public views on who, if anyone, should be able to engage in or approve assisting a person to die. They examine the law in other countries, such as the Benelux countries, Canada and Switzerland which have legalised assisted dying in some form. Since 2003 hundreds of Britons have flown to Switzerland and died at the Dignitas or LifeCircle institutions which offer AD to foreign nationals. What if something similar were available in the UK, obviating the need to travel abroad? What should be the safeguards and procedure? Should it be privatised or publicly available?
Having considered these and other issues, the team propose the following four reforms:
“We recommend that the element of ‘compassion’ is introduced into the Suicide Act and a distinction is made between malicious assistance/encouraging and assistance done out of compassion to legalise AD. This is to codify the guidance currently given to prosecutors. It will provide protection to third parties who act in compassion and punish those acting to gain something from the individual’s death. Moreover, ‘assistance’ must be clearly defined and acts, such as paying for a flight for an individual or accompanying an individual to another country to end their life should not be considered as assistance.”
“We recommend that persons who are terminally ill, aged 18, who are residents and/or citizens of the UK ought to be eligible for AD. Their ability to consent should be judged by two independent doctors and potentially a psychiatrist or psychological expert. …”
“We recommend that the actual act of AD take place within a private facility, rather than under the NHS, so that the quality of care is at its highest and under the individual’s control. The fee should be capped at £1,000 and/or provided for by a special grant by the Government.”
“We recommend that conscientiously objecting doctors should register their objection so that health care services do not enlist their help when it comes to assisting a patient to die.”
You can read all the teams’ reports and see all the evidence and graphs relied upon in the published report, which will soon be available via the Big Voice London website.
You can also see earlier years’ reports on its Publications page.