This week’s roundup is a bonfire of the vanities of Westminster and a fireworks display of legal news and commentary, including sexual harassment in the workplace, judicial recruitment and support, artificial intelligence in law, the Bar conference, cases reported via Twitter, and a riff upon a beermat.

Parliament

Billy Bunters and their Bully Banter

A cross-party group has been launched to examine the way allegations of sexual abuse and impropriety are handled in Westminster amid a growing scandal, according to the Independent, as Parliament attempts to cope with a tide of new and historic complaints. The Times reported that the Prime Minister, Theresa May, had been “urged to take control of parliament[’s] sexual harassment row” as various MPs and even Cabinet Ministers were named and denounced for inappropriate behaviour (including in one case a minister calling his secretary “sugar tits” and asking her to buy sex toys). Soon after, the Guardian reported that

Theresa May has insisted that she is determined to take tough action to protect Westminster staff against sexual harassment as MPs in both major parties predicted more sleaze allegations would emerge in the coming days.

As the Observer explained in an editorial over the weekend:

As in Hollywood, our political parties have long operated along cultural norms that not only make the abuse of power possible, but, as the MP Anna Soubry argues, actually offer protection to abusers. Thanks to their contacts and influence, MPs and ministers can wield great influence over aspiring political careers. Each MP acts as their own employer, giving staff little access to independent guidance and support should they experience harassment. Such incidents are often treated as indiscretions to be reported to the whips’ office, to be hoarded as future leverage against rebellious MPs. In a world seen through the lens of tribal party allegiances, coming forward with a complaint is viewed as a sign of disloyalty.

But have we not been here before? Indeed we have. In What have political parties done to tackle sexual harassment in Westminster? Channel 4 News FactCheck reminds us that C4 News investigated sexual harassment in Westminster back in 2014 and the main parties and the speaker all promised to act on the problem. The article examines what they did then and why it doesn’t seem to have had the desired effect.

The latest allegations seem to have been prompted by the #metoo campaign on social media, following the accusations, some of which he appears to have admitted, by film mogul Harvey Weinstein which surfaced some weeks ago. (See, for a catchup on this, The New Yorker: From Aggressive Overtures to Sexual Assault: Harvey Weinstein’s Accusers Tell Their Stories) As with the torrent of child sex abuse allegations which followed the revelations about BBC disc jockey Jimmy Savile (now the subject of a massive public inquiry) people have been encouraged to come forward with incidents apparently bottled up for years or decades, by a sense that the world might now be ready to believe them and take them seriously.

Some of the reported incidents – knee-touching, for example – seem pretty trivial, taken in isolation. The point is that they are not necessarily isolated; rather, they should be seen as part of a pattern of what might be described (in competition law terms) as abuse of a dominant position. The dominant party, usually an older male, is either unconscious of how what he thinks of as fairly trivial or harmless conduct might be perceived or felt by the other party, or else consciously takes advantage of the power he has over them. If no complaint is made, that only encourages him in a sense of entitlement and impunity. It is then that the Billy Bunter types start to impose their Bully Banter, and worse. (Bunter was a fictional schoolboy best known for his gluttony, but in satisfying his excessive appetite he often grabbed what was not his to enjoy, so his name offers an appropriate comparison and not just a handy pun.) (As for “banter”, what does calling a junior female co-worker “sugar-tits” in public say about you, for example?) So it’s important to complain, or put down markers and boundaries; but when your career and promotion are at the whim of the dominant party, it isn’t easy to complaint, and it’s harder still if no one else does. And it’s only when there’s a sense of safety in numbers (hence #metoo) that it all comes out, and this seems to be what’s happened.

The above is not an expert view, but Sean Jones QC, a leading employment lawyer, has helpfully (and expertly) issued what he called a Public Service Thread. It is worth reading in full.

What about the legal professions?

No one can pretend such problems do not exist in other workplaces – including something as obviously hierarchical as the legal professions. As soon as they begin pupillage or training, a young lawyer is to some extent in thrall to their seniors, and this continues up the career ladder.

Although the abuse of a dominant position may be of a sexual nature, this should not be seen in isolation. Bullying takes other forms, as Lucy Reed explains in a carefully considered piece on her Pink Tape blog: Me too – Judicial bullying

Brexit

Impact papers to be disclosed to Parliament

Last week a Labour opposition motion, tabled by the shadow Brexit secretary, Keir Starmer, and  presented by way of an ancient procedure known as an “humble address”, was unanimously passed and accepted by the government. This will require the government to disclose, as it has hitherto resisted doing, 58 studies covering the likely effect of Brexit on various parts of the economy. According to the Guardian,

The Brexit secretary, David Davis, has described the 58 impact studies as containing “excruciating detail” on the likely consequences of different departure scenarios. Of particular interest are those that imagine what would happen if Britain leaves the EU single market without a replacement trade deal and relies instead on World Trade Organisation rules.

Elsewhere, the Guardian reported that

The shadow Brexit secretary, Keir Starmer, has warned that Labour will refer the matter to Bercow over possible contempt if the studies are not passed to the committee before parliament’s one-week recess begins on Tuesday.

Judiciary

Recruitment

A report by the Select Committee on the Constitution, Judicial Appointments: follow up (HL Paper 32) published on  2 November, returned after five years to the topic of its original report dated 2012. They said:

In our 2012 report on Judicial Appointments we explored the appointment of judges in England and Wales and Justices of the Supreme Court, raised concerns about the lack of diversity at the bench, and made a number of recommendations to improve the judicial appointments process. […]

In this follow-up report we draw attention to three broad themes: the reduced attractiveness of judicial office, its impact on recruitment, and continuing concerns about the lack of diversity in the judiciary.

On the whole, the picture is not a happy one. Judges are demoralised and feel unloved. We have reported on this before (see Weekly Notes: 13 March 2017 and in a follow up via Medium.) The new report highlights that

“The dilapidated state of some courts coupled with administrative burdens, under-resourcing of staff and IT shortcomings all need to be addressed.”

These things impact adversely on the attractiveness of the judicial career – as does the current restrictions on retirement age.

More controversially, they recommend re-examining the convention that prevents full time judges, on retirement, returning to legal practice (as opposed to lecturing, blogging and, no doubt for some, endless lunches at the Garrick):

We recognise that the concept of judges returning to practice law is controversial. We invite the Lord Chancellor and the Lord Chief Justice to examine the continuing value of the convention, and in particular, whether it serves to operate as a significant disincentive to applications for full-time judicial appointment.

Not apparently covered in this report, but “floated for discussion” as a “humble suggestion” by Lady Hale, President of the UK Supreme Court, was the idea of involving politicians in the selection of senior judicial appointments. This was roundly  rejected in a poll of barristers conducted by The Times, the results of which were announced on the eve of the Bar Conference on 4 November 2017: Barristers throw out plan to let politicians help choose judges. Andrew Langdon QC, chair of the Bar, said

“The independence of the judiciary will always be guarded fiercely by the Bar. … It is difficult to overstate the importance of our being able to continue to point to the entire absence of political interference in judicial appointments.”

For recap, here is a link to the 2016 report on UK Judicial Attitudes Survey, which Alison Padfield helpfully just flagged up on Twitter during a discussion of this topic.

How has the Judiciary website responded to the crisis?

By publishing a rather charming series of YouTube videos featuring newly appointed or promoted judges, talking about the benefits of their work. The talking heads include Mr Justice Birss (Chancery Division), Mrs Justice Carr (Queen’s Bench Division), Mrs Justice Cheema-Grubb (Queen’s Bench Division), Mr Justice Cobb (Family Division), Mr Justice Garnham (Queen’s Bench Division), Mrs Justice May (Queen’s Bench Division), Mrs Justice Theis (Family Division), Mr Justice Warby (Queen’s Bench Division) and Lord Justice Singh (Court of Appeal). Here is one of them:

Legal professions

AI law: briefing the bots

UK-based legal tech start-up CaseCrunch challenged lawyers to see if they could predict with greater accuracy the outcome of a number of financial product mis-selling claims. On 27 October, the results of the contest were announced. CaseCruncher Alpha scored an accuracy of 86.6%. The lawyers scored an accuracy of 62.3%. In a report by Artifical Lawyer:

Over 100 commercial London lawyers signed up for the competition and made over 750 predictions over the course of a week in an unsupervised environment. The problems were real complaints about PPI mis-selling decided and published by the Financial Ombudsman Service (FOS) under the Freedom Of Information Act.

The main reason for the large winning margin seems to be that the network had a better grasp of the importance of non-legal factors than lawyers.

The report is anxious to underline that:

These results do not mean that machines are generally better at predicting outcomes than human lawyers. These results show that if the question is defined precisely (such as – was this complaint about PPI mis-selling upheld or rejected by the FOS?), machines are able to compete with and sometimes outperform human lawyers.

This experiment also suggests that there may be factors other than legal factors contributing to the outcome of cases. Further research is necessary to establish this proposition beyond the specific parameters of this experiment.

But – albeit in a different context – a note of caution was sounded by an article in The Guardian, Computer says no: why making AIs fair, accountable and transparent is crucial which considers cases in which AI may have arrived at the wrong answer and the difficulties in detecting where AI algorithms may be malfunctioning, because of commercial confidentiality, and the need for greater transparency and accountability. See also, by the same author (the paper’s science editor, Ian Sample) The algorithms that are already changing your life which includes AI used in law enforcement.

Robot rights

Technology and law took another strange turn in Saudi Arabia at the end of last month, when a robot named Sophia moderated a session at the Future Investment Initiative Conference in Riyadh. Sophia also made the news by being the first robot to be granted citizenship, including a passport, by Saudi Arabia. (See Al Arabiya, Saudi Arabia first country to grant robot citizenship.)

Critics of the regime’s human rights record pointed out that the robot, female only in name, now had better rights under Saudi law than a real woman. (Reuters, Saudi women riled by robot with no hijab and more rights than them.)

Conference news

Bar Conference and Young Bar Conference

Among the highlights of this year’s conference, held on 4 November and themed “One Bar: Threats, opportunities & strengths in an age of change”, was an address by Sir Henry Brooke on his work with the Bach Commission on Access to Justice. He received a standing ovation, as he notes with characteristic surprise and humility on his blog, where he subsequently published his address.

You can also read the speech of the chair of the Bar, Andrew Langdon QC. It is a fierce defence of the Bar and the high standards it aims to maintain, while also clear sightedly identifying those areas, such as wellbeing and diversity, where more work is needed. It is also critical of some of the less well conceived aspects of the massive HMCTS Reform programme.

Among other new developments announced at or timed for the conference, the Bar Council launched a new Ethics Code page on its website.

Cases

Storified tweet coverage

Tweets covering two recent hearings have been storified. The first, created by Celia Kitzinger via Coma Research is Salford Royal NHS Foundation Trust v Mrs P [2017] EWCOP 23, before Hayden J, which concerns an application to declare the best interests of a 72 year old woman who, following a fall in December 2016, now lacks the mental capacity to communicate her own wishes and feelings in respect of life sustaining medical treatment. Judgment was given on 30/10/2017 and can be found on BAILII.

The second is by Louise Tickle via the Transparency Project, and concerned HCPC fitness to practise hearing of a social worker subject to judicial findings of serious misconduct earlier in the year.

 

Dates & Deadlines

The Citizen and the State: Poor decision-making and the role of the pro bono Bar

8 South Square, Gray’s Inn, WC1R 5ET. Tue 7 November @ 6:00 pm – 8:00 pm

This event, organised by the Bar Council and chaired by Andrew Langdon QC, Chair of the Bar, will feature Sir Henry Brooke, Sir Ernest Ryder, Nick Easterman, Jonathan Peacock QC and David Woolfe QC.

Booking via Eventbrite

Judicial Assistants Pilot Scheme

The Commercial Court has launched a Commercial Court Judicial Assistant Pilot Scheme in association with the Commercial Bar Association (“COMBAR”). It is intended that the first three Commercial Court Judicial Assistants will start their 6-month placements on 11 January 2018.

The deadline for applications is 5pm on 13 November 2017.

Click here for notice and application form.

And finally…. Brexit

On-a-mat-o’-beer

Tegestologists of the old school will no doubt wince at this dreadful pun on the word onomatopoeia (of which it is not even an example), by way of introduction to the rather bizarre combination of pub culture and erudition represented by Channel 4 News FactCheck’s article  The Wetherspoons beer mat “manifesto”

This examines claims about Brexit published by the pub chain Wetherspoons on a special edition beer mat, in particular the claim that food and drink would be cheaper after Brexit by reason of (potentially) lower tariffs. The article explains why, even if lower tariffs were imposed, the cost of food and drink would probably still go up, for other reasons associated with Brexit.

Next time, the beer mat should read, in the immortal words of the poet W.B. YEAST:

“Brexit – you might think it a short HOP to freedom, but we’ve BARLEY begun and already it’s making us BITTER.”

 

All right, that’s enough of that. Thanks for all your tweets, many of which provide source material for which we are very grateful. We’ll try to plug all our borrowings. If you like the blog, you can sign up below for email alerts.

This post was written by Paul Magrath, ICLR blog editor, and does not necessarily represent the views of ICLR as an organisation.