Trump is right: stories will dry up if the press can’t use anonymous sources

Judith Townend, University of Sussex and Richard Danbury, De Montfort University

Donald Trump has declared war on anonymous sources and wants to ban their use by journalists. In a speech at the Conservative Political Action Conference (CPAC) on February 24, he said: “You will see stories dry up like you have never seen before.” The Conversation

He’s right. If such a restriction is imposed then stories would dry up. He is very wrong to demand it though. Such a restriction on journalism would have devastating effects for democracy and the flow of information in the public interest, as courts have repeatedly recognised.

But in his first few weeks as president, Trump has shown himself to be no friend to press freedom. Hours after his CPAC speech, the White House barred several news organisations, including the Guardian, the New York Times, Politico, CNN, BuzzFeed, the BBC, the Daily Mail and others from an off-camera press briefing, or “gaggle” conducted by press secretary Sean Spicer. Additionally, he announced that he will not attend the White House correspondents’ dinner in April. Building relationships with the press is not a priority for this new administration.

Banning the use of confidential sources denies a core principle reflected in media ethics codes from around the world and flies in the face of the First Amendment to the United States constitution and rights to free speech. Protecting journalists’ confidential sources is deemed essential to freedom of expression, public interest journalism and holding power to account. It is held as sacred, to be interpreted rigidly – even in the face of criminal prosecution.

The principle is deep-rooted and recognised in the jurisprudence of the European Court of Human Rights (which has found against the UK on this issue, on more than one occasion), formal commitments by the Committee of Ministers of the Council of Europe, the United Nations Human Rights Council and the European parliament.

But successfully protecting a confidential source has always required a careful balance. Protections exist in law but they must be skilfully navigated and practical steps taken to maintain confidential communication between journalist and source. This careful balance was never easy to achieve, but it is becoming increasingly difficult, as we show in our recent report “Protecting Whistleblowers and Sources in a Digital Age” – the result of a research initiative supported by Guardian News and Media, publisher of the Guardian and the Observer newspapers.

Our research presents the views and experiences of 25 investigative journalists, specialist lawyers, academics and representatives from NGOs, shared at a meeting hosted by the Institute of Advanced Legal Studies in September 2016.

We identify that a powerful combination of legal and technological threats now jeopardise source confidentiality. A journalist may assure a source of anonymity but that promise is not an easy one to keep unless the source has taken precautions when making contact from the very beginning of their communication.

Even for a source such as former NSA contractor Edward Snowden, well versed in encryption and security techniques, maintaining confidential channels of communication was tricky when he decided to leak documents revealing the nature and scale of the NSA’s international surveillance programmes in 2013. Most sources may not take important precautions, nor wish to disclose their identity, as Snowden eventually did. They won’t necessarily have the technical ability of Snowden, the mind-set of Deep Throat, nor necessarily even think of themselves as a source or a whistleblower.

Blowing the whistle

In tandem, legal threats abound. The government has claimed, during the passage of the Investigatory Powers Bill in 2015-16 and in response to our report, that it has strengthened protections for whistleblowers in legislation, but we remain unconvinced.

The Investigatory Powers Act was an opportunity to create a robust and independent process for authorising the state’s interception of journalistic material. In the event, despite the introduction of a judicial approval stage, journalists and their sources are left vulnerable with no requirement for notification to the affected party – and protections that fall short of their equivalent in the Police and Criminal Evidence Act (PACE) 1984.

More recently, the Digital Economy Bill 2016-17 posed a new threat. In its original form, Part V introduces new criminal offences for disclosure of public authority and government data with no specified protection for public interest journalism.

Thanks to the intervention of the National Union of Journalists, the Media Lawyers’ Association and the News Media Association, the government has introduced an amendment which offers a defence for public interest journalism.

Nonetheless, there is still a question mark about the effectiveness of this defence and the extent to which it will protect journalists and their confidential sources. How will it be interpreted by the courts?

It is a thorny legal problem about what should be considered as “journalism”, and so it is difficult to predict who – or what activity – will benefit from this defence. Additionally, even if journalists are better protected in law, we must not neglect the question of whether sources and whistleblowers are adequately protected.

In the public interest

The latest issue to garner attention is the Law Commission’s new consultation on the protection of official data. Preliminary proposals on reform to the law on official secrets and espionage have been severely criticised by a number of media organisations and civil society organisations.

The Law Commission has indicated that these are merely proposals – and they, to a large extent, are an attempt to codify and update existing laws, but these points do not alleviate our concern about their effect on whistleblowing and source protection.

A consolidating act that replicates the deficiencies of already existing law would be no improvement on the existing law – and the absence of a public interest defence in actions that relate to whistleblowing of officially secret material is a significant omission.

And as Trump’s comments at CPAC indicate, a larger sociopolitical threat looms. The new president takes an unprecedented approach to his dealings with the media and his use of social media. Events – such as the disclosures leading to the resignation of US national security adviser Michael Flynn – highlight the value and importance to democratic debate of whistleblowing in the public interest.

This demonstrates quite how important it is that journalists who receive such material are able to protect their sources. If this were not the case, the public would not see material that helps provide a clearer and accurate picture of important contemporary events – particularly vital when the US administration continues to express such overt hostility to the mass media.

Judith Townend, Lecturer in media and information law, University of Sussex and Richard Danbury, Principal Lecturer in Investigative Journalism, De Montfort University

This article was originally published on The Conversation. Read the original article.

What does open justice actually mean?

Judith Townend
Judith Townend

The notion that justice must be seen to be done needs little introduction to either a lay or legal audience,  but its familiarity belies an underlying complexity. See, for example,  PNM v Times Newspapers, to be heard by the Supreme Court this week.

The court will hear an appeal against the Court of Appeal’s decision to allow reporting of information about a person named in open court, but not charged with any offence, nor a witness or party to the case, in which seven people were convicted of serious sexual offences – including rape and conspiracy to rape children, trafficking and child prostitution.

As Hugh Tomlinson QC notes in a preview on the Inforrm blog, it’s a ‘difficult’ case, ‘which is likely to produce a definitive restatement of the principles which apply when a party is seeking to derogate from the principles of open justice’.

Plans to modernise the courts system throw up new problems for open justice and privacy rights, which I’m not wholly confident are being fully considered in the context of digital technology and competing individual and organisational interests (I hope I’m wrong).

All this is something I’ve written about for the Justice Gap’s new issue of Proof Magazine, which offers a wide range of (and more expert than me) perspectives on access to courts, and includes a new charter for open justice, focusing on access to information in criminal trials, led by the Centre for Criminal Appeals.

My article is uploaded here and a version appears below:

Justice Must Be Seen To Be Done … But What Does That Mean?

It was something of a shock to the handful of people writing about the Court of Protection when a ‘Transparency Pilot’ was announced in November 2015. Lucy Series, an academic researcher who studies the Court, remarked on a ‘dramatic shift in policy’ and the ‘radical approach’ taken.

That was not to say that some opening up of the Court, which hears cases relating to individuals’ mental capacity and welfare, was not welcome. Its followers were simply taken aback: the pilot did not merely allow accredited press access, as is the case in the family courts, but opened cases to public view, albeit with strict reporting restrictions.

Since the pilot appeared to have been launched with no public consultation, what was the prompt? The press release alludes to transparency, ensuring wider understanding, and seeing justice being done. It is the latter sentiment that is deeply embedded in legal practice. Even people with little legal knowledge are likely to have heard that frequently repeated trope, that justice must be seen to be done. It runs deep in British culture, found in crime dramas and tabloid newspapers, not only in the law reports.

The open justice principle is often rationalised in various ways: to allow scrutiny of proceedings to ensure proper judicial conduct and a fair trial, to enhance public confidence, to deter future offences, and to inform the public about matters in the public interest. Some justifications are more persuasive than others; evidence to support the deterrence argument is weak in civil and criminal contexts, and especially in unusual cases where a repeat crime by the offenders or others is highly unlikely.

In truth, very few people sit in the public gallery. Instead, we rely on proxies to report courts for us, most usually, the press. Regular court reporters are dwindling in number too, however. Their physical absence does not make the right of access redundant: many would argue it is the possibility that the press or public might attend court that is part of an open justice approach. Nonetheless access could be improved, with better digital communication of proceedings, including explanation to the public of what is taking place.

Too often, the dissemination of courts data is an after-thought. Take a revealing interaction at a Public Inquiry in 2012 considering the death of Azelle Rodney, who was found to have been unlawfully shot by police. The Inquiry chair, Sir Christopher Holland, asked the Inquiry counsel about what had been, and what would be, uploaded to the website.  Holland commented that it had ‘never occurred’ to him that a particular exhibit would be ‘public and go on a website’.

Though the digital publication of materials during this Inquiry and others is to be commended, the exchange suggested a lack of a policy and prior discussion about how digital materials should be handled. Furthermore, public access may require the intervention of media organisations, which cannot be guaranteed if a case is not deemed newsworthy.

A more recent example is the confusion that followed the trial of Ben Butler for the murder of his six year old daughter, Ellie.  After Butler’s conviction in 2016, relevant judgments in the family court were made public but it proved impossible for non-accredited journalists to check the terms of the reporting restrictions without making a potentially expensive application to the court, as the barrister Lucy Reed documented on her blog.

The issue does not just concern public facing data, it affects internal practice as well. In February 2016 the Court of Appeal judges considering the continuation of reporting restrictions in the Incedal trials (see Ian Cobain in Proof) expressed consternation that they were not able to consider closed judgments that may have been relevant to their decision because no records of such judgments were kept.

The open justice principle is often spoken about as if it is a universal. In reality, it is not. At the practical level, practice greatly varies between courts. Certain courts conduct the majority of their work in private. These courts include the Investigatory Powers Tribunal (IPT) and the Special Immigration Appeals Commission (SIAC). Until recently, the public and press were excluded from family proceedings, but accredited media representatives are now presumptively permitted in to most, but not all, types of hearings.

Even within courts that are by rule open to public visitors, there is great variance in the handling of restrictions and accessibility. It is much easier to access copies of court listings, ie. a list of the cases being heard in a given week, at some local crown and magistrates’ courts than others.

At the theoretical level, open justice is also understood variously, as is evident in many early decisions on reporting access and restrictions, some overturned at appeal. In 2016, Mr Justice Globe was not persuaded by the ‘deterrence’ argument in naming two teenage girls found guilty of the murder of Angela Wrightson; in contrast, in 2014, Mr Justice Coulson considered that naming a 15 year old convicted of the murder of his teacher Ann Maguire ‘had a clear deterrent effect’.

By observing these discrepancies, I am not making the case for the universal application of open justice. Rather, that principles of openness should be fairly and consistently applied in different sorts of courts, based on clearly written and publicised guidance for physical and digital dissemination of material. Open justice can take different forms in different contexts, but it is crucial that underlying procedure is transparent, even if some information is legitimately withheld.

This guidance must be based on public consultation and ideally, independent research, which secures the views of all types of court users, especially in relation to rehabilitation, privacy and data protection in online environments. In the Court of Protection this could include ‘P’, the usually anonymised individual at the centre of cases, whose voice is rarely heard. As Julie Doughty and Paul Magrath recently argued, ‘the vital piece in the picture is whether P and their families have a sense of intrusion’.[viii]

This exercise would also help detach media interests from other interests. It can interrogate whether it is necessary to reveal the names of participants in particular cases and why. Journalists have argued that such specific detail allows them to make the story engaging, and more importantly, tell it in a humanising way that aids public understanding of the whole case background. Less credible are arguments that centre on the financial viability of newspapers, especially when pitted against the rights of individuals in the family courts and Court of Protection who are concerned about press intrusion.

Any consultation must also consider notification of the media and members of the public about forthcoming court proceedings, reporting restrictions, and court results.  The current system is astonishingly ad hoc and over reliant on third parties to seek out information. A commercial service run by the Press Association is used for notifying the media of some types of injunction applications but not all, and not all media organisations are subscribers.

Perhaps most crucially, the way in which information is restricted must be more systematically monitored. Very little to no data exists on this. During a media frenzy over privacy injunctions in 2011 it became apparent that nobody knew exactly how many super injunction type orders had been granted. In response, a new practice direction was issued instructing judges to notify the Ministry of Justice of relevant cases, and since then some data has been published. However, this practice direction has lapsed, making record keeping even more haphazard.

At a time when the government is investing over £700 million in courts modernisation, there is a great opportunity for improving public scrutiny and understanding of the courts. At the same time, the judiciary and courts service need to properly consider how personal data generated in the courts process should be digitised and disseminated through global media platforms.

Judith Townend is a lecturer and researcher based at the University of Sussex and a member of the Transparency Project core group. This blog post is based on an article that first appeared in Proof Magazine, Issue 2, January 2017.

The Erratic Present, and Unpredictable Future, of the Legal System under Trump

Nick Beard
Nick Beard

It would be foolish not to begin this blog with a note that President-elect Donald Trump has often been proved to be erratic and difficult to predict.  Accordingly, any forecasts of his decisions while in government should be judged with a healthy scepticism and a caveat that during his presidential campaign, Donald Trump has changed his position on several issues likely to be adjudicated during his presidency – abortion rights, funding by wealthy corporations, marriage equality and free access of the press.

Throughout the campaign, the prerogative of the next president to elect at least one member of the Supreme Court was widely discussed.  While President Obama appointed Merrick Garland to fill the vacancy left by the death of Antonin Scalia, the Senate has successfully prevented the hearing to confirm Garland to this position and seems unlikely to continue to block this appointment until the end of Obama’s term.  It was often touted as a major reason that Americans affiliated with a political party and uncomfortable with their party’s nominee should still vote for them.  President Clinton or Trump would provide the nominee to fill Scalia’s seat and with only one justice currently under the age of 60, any slots made available by retirement of a justice over the next four to eight years.

Donald Trump has released a list of potential justices he would consider elevating to the Supreme Court: all 11 were appointed by Republican politicians, all 11 are white and 8 of the 11 are men.  Interestingly, he had previously cited his sister, Maryanne Trump Barry (considered to be a broad defender of abortion rights) as a possible Supreme Court nominee.  This is particularly significant, as Trump has identified abortion as one of the most pressing current topics facing the Supreme Court.  The leading case, Roe v. Wade, which allows women the right to privacy in order to access a termination in the first trimester of their pregnancy, has been restricted by Planned Parenthood v. Casey, to allow restrictions to be placed on abortion access, as long as these restrictions do not place an undue burden on the woman.  This was reinforced in the recent Whole Woman’s Health v. Hellerstedt case (in a 5-3 decision determined after Scalia’s death), where the majority of the Court argued that the onerous restrictions on abortion clinics were not intended to safeguard women’s health, but to make abortion access more difficult.  Proponents of abortion rights are concerned that a change in the make up of the Court would allow abortion access to be steadily chiselled away through increasing unrealistic requirements for women’s health centres.

Another Supreme Court case which was discussed widely during the 2016 election was Citizens United v. FEC.  The 2010 case, decided 5 to 4, has prevented the Federal Elections Commission from limiting the amount of money which could be raised and spent as part of presidential campaigns, leading to the accusation that candidates were indebted to wealthy donors and their agendas .  Donald Trump, throughout his campaign, bemoaned the role of financial lobbying in presidential election.  As part of his populace platform, he often cited the corrupting influence of large campaign donations and claimed that due to his large personal fortune, he would be able to self-fund the majority of his campaign.  Trump did, however, receive large individual and corporate donations and despite promises to “drain the swamp” of money in Washington,  has already hired former lobbyists to aid his transition team, as well as hiring a recent president of Citizens United (the lobby group which brought the relevant court case) to serve within his campaign.  This would indicate that while Trump has been publicly critical of the decision, he has made no tangible policy proposals for campaign finance reform.

Donald Trump will definitely have the task of appointing one judge to the Supreme Court and depending on future retirement of justices, up to four vacancies.  His position on constitutional law seems to be uneven and erratic, without thoughtful contributions as to the role of the judiciary.  Perhaps as he assumes the role of the President, his exposure to the original American concept of judicial review and the importance of judicial oversight of congressional and executive action will increase – but as always with Donald Trump, who can guess?

Nick Beard is a PhD Student and Scholar at the School of Law, University of Sussex

Access to information should not be an after-thought in plans for ‘transforming our justice system’

Judith Townend
Judith Townend

Cross posted with permission from The Transparency Project

On 15th September 2016 the Ministry of Justice opened its consultation into “Transforming Our Justice System”. The 36 page document, accompanied by a statement by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals, sets out a “vision” for a radical overhaul and major financial investment in courts and tribunals in England and Wales. The plans for reform include more use of case officers for routine tasks, more decisions made “on the papers” (where a judge can consider representations without a physical hearing), more virtual hearings, and more cases resolved out of court.

The consultation document concentrated on some specific areas of reform including its “assisted digital” strategy (to help users access services), and online conviction and statutory fixed fine plans. The latter would allow for certain routine, low-level summary, non-imprisonable offences with no identifiable victim to be resolved entirely online, whereby a defendant would enter their plea to an online system. If that’s a guilty plea they would be able to view the penalty, accept the conviction and penalty, and pay their fine.

Responses were sought on online convictions and the “assisted digital” strategy by 10th November (extended after an administrative error). It is likely that many of the responses will focus on the access to justice issues and the risks of an online plea system; research by the charity Transform Justice, for example, indicates that “many unrepresented defendants do not understand whether they are guilty or innocent in legal terms – whether they have a valid defence – and certainly don’t understand the full implications of each option”.

However, there’s another major issue which is overlooked in the consultation, that of access to courts and tribunals by members of the public who are not necessarily directly involved with proceedings — this includes members of the media, NGOs and universities, but also ordinary people who wish to observe proceedings and access the information to which they are legitimately entitled.

Although the consultation document contains a pledge that the judiciary and government will “continue to ensure open justice”, access to proceedings and materials is not explored in any detail in relation to the specific reforms outlines on online convictions and “assisted digital”. It states the “principle of open justice will be upheld and the public will still be able to see and hear real-time hearings, whilst we continue to protect the privacy of the vulnerable” (p.5). This sentence points to a very important tension in complex digital environments, and one that needs overt recognition and detailed consideration when designing new access systems for online court procedures in both civil and criminal contexts.

There is mention of “transparency” in the joint statement (p.10) but only in relation to general data about proceedings (i.e. statistics) rather than with regard to access to proceedings. The Impact Assessment on Online Convictions mentions that “Listings and results would be published” (p.5, para 23) with no indication of whether this means to the open web (indefinitely?), or in a physical courtroom. If they intend to publish the full listings for all these summary only non-imprisonable offences to the open web, it is very important that the judiciary and MoJ consider the legal and societal implication of this — it is not something that has previously been done so systematically by the court.

Given that many major criminal convictions are unreported by the media owing to a lack of resource or interest, we could end up in a strange situation where there is greater access via online search for far less serious offences and this must be considered in the context of issues such as equal opportunities and potential barriers to work, as well as open justice and transparency. The MoJ, HMCTS and Judiciary should investigate a range of technological options for sharing data from courts and tribunals and should open these proposals to scrutiny through stakeholder research and official consultation.

In the annual University of Sussex Draper Lecture 2016 in London this week (8 November), Lord Justice Fulford (a summary of which may be found here) said that one option being considered was to provide viewing centres in public buildings, but these were early days and they were still looking for imaginative solutions. It would seem perverse, given the overall agenda of the reforms, for the courts not to consider digital access options that do not require physical travel to court.  

On behalf of the Transparency Project I have written a submission to the consultation, raising our overall concern about the lack of attention given to open justice and access to information in these initial documents. Our submission urges the Ministry of Justice and Judiciary to provide more detail on their specific plans for physical and digital access to virtual proceedings and to open these plans to further consultation. Too often, public access to courts information is an afterthought, which leads to mistakes such as the inadvertent release of sensitive and confidential data, or insufficient information and access being made available.

Judith Townend is a lecturer in media and information law at the University of Sussex and a member of the Transparency Project Core Group.

Hurrah for the judges and the rule of law

Sue Millns
Sue Millns

The judgment of the High Court of 3 November 2016 about the process that should be followed to enable the UK to leave the EU raises profound questions of constitutional significance for the United Kingdom.

At the centre of the case is the legal question of whether or not the government is entitled to trigger Article 50 of the Treaty on European Union (the exit provision under EU law) solely by the exercise of the Crown’s prerogative powers (meaning that this is purely an executive decision which can be made by the Prime Minister) or whether reference must be had to Parliament (the democratically elected, legislative body).

High Court judges wearing traditional red and white robes - photo courtesy of FruitMonkey (CC BY-SA 3.0)High Court judges wearing their traditional red and white robes. Photo © FruitMonkey (CC BY-SA 3.0)

The government, in suggesting that it could use the prerogative to put in motion the procedure contained in Article 50, relied on the suggestion that the conduct of international relations, including the making and unmaking of treaties (as is the case here), is a matter that falls within the Crown’s prerogative powers.

The judges have a duty to uphold the Constitution and to ensure that the system of constitutional checks and balances is respected.

The Unwritten Constitution

Putting politics to one side for a moment, which is exactly what independent judicial authority is required to do, the legal question is tricky to resolve because the United Kingdom, unlike most states, does not have a written Constitution.

We have an unwritten system of constitutional arrangements, conventions, doctrines, some parliamentary legislation (like the European Communities Act of 1972) and case law (decisions of the judges). We do not therefore have an easily accessible text which sets out the rules of the constitutional game. Instead we are left to follow principles derived from an array of sources which have amassed over time with varying degrees of force and authority.

Resolving the thorny legal question at the heart of this dispute is exactly what the three judges of the High Court had to do in their landmark decision of 3 November.

At the heart of the legal problem lies the question of the extent of the Crown’s powers under the royal prerogative. The prerogative, which is a key aspect of the UK’s unwritten constitutional arrangements, refers to those residuary (arbitrary) powers which continue to remain with the Crown (or executive) despite the sovereignty of Parliament (which was confirmed in statute by the 1689 Bill of Rights following the Glorious Revolution).

The Crown (i.e government or executive power) cannot override legislation enacted by Parliament simply through its use of the prerogative.

The government argued that it could legitimately use the prerogative to give notice under Article 50 of its intention to begin the process of leaving the EU. This process would have the effect of taking away, or putting an end to, rights derived from EU law and incorporated into domestic UK law by the 1972 European Communities Act once the process was completed.

A photo of the High Court building in LondonThe Royal Courts of Justice in London, where the High Court judges made their ruling. Photo © sjiong (CC BY-SA 2.0)

What the judges of the High Court found, however, was that the government’s argument was not supported by the constitutional law of the UK.  The most fundamental rule of the UK’s constitution is the principle of parliamentary sovereignty or legislative supremacy. This means that Parliament is the supreme law-making body in the country and that it can make or unmake any law it chooses.

The Crown (ie government or executive power) cannot override legislation enacted by Parliament simply through its use of the prerogative. That would be precisely the effect were the Crown to trigger Article 50 without reference to Parliament.

The completion of the Article 50 withdrawal process would result in the loss of rights for individuals. However, what Parliament has given (through the 1972 Act) can only be taken away by Parliament. It should escape no one that the desire of those supporting Brexit – that the UK parliament should have its sovereignty better respected – is precisely the outcome of the High Court’s decision.

Respect for the Rule of Law

Much of the media commentary surrounding the decision of the High Court has been about the lack of accountability of the judges in the face of the majority victory in the referendum for leaving the EU (51.9% against 48.1%).

Who are the judges to fly in the face of the wishes of the majority who voted for Brexit? The answer to this question is that the judges, far from being the ‘enemies of the people’ as the popular press would have us believe, are the independent authority whose task it is to uphold the rule of law in the midst of a political storm.

For centuries governments and executive authorities have attempted to usurp individual rights and freedoms through the use of regulatory powers.

The judges have a duty to uphold the Constitution and to ensure that the system of constitutional checks and balances is respected. The judges are there to provide independent judicial review of executive action to ensure precisely that the executive/Crown/Prime Minister act within their powers and do not act unlawfully or against the wishes of a sovereign Parliament. The judges are the guarantors of individual rights and liberties and it is absolutely their role to defend the Constitution, to defend the rule of law, against the arbitrary and unaccountable use of executive power.

For centuries governments and executive authorities have attempted to usurp individual rights and freedoms through the use of regulatory powers and judicial review of executive action is exactly the legal tool required in order to ensure that the use of executive power is not arbitrary, unlawful or ultra vires. This is precisely the role of the judges and the purpose of a Constitution (written or otherwise) and for that we should all be thankful.

How curious then that the Lord Chancellor and justice secretary, Liz Truss, should be so underwhelming in her endorsement of the principle of judicial independence and so lacklustre in her defence of the judiciary in the face of hostile media attacks. The Bar Council of England and Wales has lost no time in pointing out the absence of leadership shown by the Lord Chancellor and has rightly expressed concern about the rule of law being undermined in the name of press freedom.

A photo of Liz Truss, current Home Secretary, standing at a podiumLord Chancellor and Justice Secretary Liz Truss was criticised for her lukewarm response to criticism of the judiciary following the ruling of 3 November. Photo © Policy Exchange (CC BY 2.0)

Not surprisingly, the government is appealing against the judgment of the High Court with a decision expected in December. This will enable the Justices of the Supreme Court (exceptionally all of them) to consider the strength of legal argument on both sides and a further, ironic, twist in the story could then be a preliminary reference to the EU’s Court of Justice in Luxembourg for its interpretation on the matter.

What is clear is that this profoundly important judgment of the High Court will resonate for years to come and that resonance comes not so much from the political consequences of the decision, but from its statement about the boundaries and the limits of executive power.

 

Professor Susan Millns is Head of the Department of Law in the School of Law, Politics and Sociology at the University of Sussex.

 

Uber – a (temporary?) victory for common sense over law

Amir Paz-Fuchs
Amir Paz-Fuchs

As a late-October treat, the Employment Tribunal (ET) found that Uber drivers are, in fact, well, Uber drivers. This is less tongue in cheek than what it may seem; for a significant part of the ET’s was more common sense than law. In fact, as the ET went through the case law, it seemed that it was stacked against the claimants. Thus, you have a caddie in a golf club who was paid through the club, which was reimbursed by patrons for whom he provided services; and there is case of a lap dancer who was paid in ‘heavenly money’; and there was even a straightforward precedent of taxi drivers, whose position was (unsurprisingly) very similar to that of Uber drivers. In all these cases, the Courts denied the claimants any employment status, including the low-tiered status of ‘worker’, which would guarantee rights to minimum wage, working time protection and (where relevant) whistleblowing protection, for example, all of which were claimed in this case.

But there’s more law, and more bad news. As may be expected, the contract that existed sought to cover all the bases. The drivers were, initially, referred to as Uber’s ‘partners’ (a striking resemblance to a similar practice maintained by the scourge of workers – Walmart; in a delightful twist – it has just been announced that a collaboration will be tested between the two companies). Later on, in a confusing shift, revised documents referred to drivers as ‘customers’ while those previously known as customers were now ‘users’. And, needless to say, all documents denied any form of employment relationship between Uber and the drivers. Indeed, documentation (and arguments) suggested that not only is there no such relationship, but that Uber itself is not a transportation company at all! It is simply a software company, that developed an app! We return to this point below. But it’s not only the formal documentation. Uber’s lawyers made sure that where they could, the common law tests would point to drivers being self-employed. Thus, the Business Reality test, which asks where the risks lie, point directly where the company wanted it to point. The driver is to supply the vehicle, must meet all the expenses, fund their licences, treat themselves as self-employed for tax purposes, and are not provided with a uniform.

So much for what the company could do. What it couldn’t change, however, was the reality. Uber chose drivers through an interview process. In advertising itself, it referred to the high quality of, you guessed it, ‘Uber drivers’, to the high standard of used as ‘Ubers’ and to its customers as ‘Uber passengers’. How does Uber maintain the high standard of drivers? By encouraging users to rate their experience, initiating ‘quality interventions’ when those are sub-par, and eventually ‘disengaging’ drivers who do not manage to maintain the necessary ratings.

And while Uber vehemently denied exercising any ‘control’ over the drivers, the app suggests the route, which the driver is expected to follow. In addition, while Uber maintained that the driver is a self-employed business, working on its own (and, indeed, purchasing a service from Uber!), he was not allowed to contact the client following the ride, and in particular, was strictly prohibited from giving the client his phone number, as that would be considered solicitation, and thus a breach of the agreement with Uber. Similarly, drivers owed Uber duties of confidentiality, and were obliged not to speak negatively about Uber.

What did the tribunal make of all this? It managed to distinguish some of the cases where the claimant was not an ‘integral’, but rather an ‘ancillary’, part of the business (caddie at golf club, lap dancer at night club). It simply ignored the business reality test. And it regarded the all important (for some) ‘mutuality of obligations’ test as not-so-important after all, if claimants seek to establish worker, as opposed to employee, status.

But in the main, the most striking thread of the ET’s reasoning is its resort to common sense over legal conceptualisation, legal documents and legal masquerade. It cites with agreement Elias J (as he was then) in Kalwak (reversed by the Court of Appeal), who warned about ‘armies of lawyers’ who simply place clauses in employment contracts to make them appear different from what they truly are. And it went further, expressing, perhaps, no less than indignation. The passages are worthy of quoting at length:

[87] “We are struck by the remarkable lengths to which Uber has gone to compel agreement with its (or perhaps we should say its lawyers’) description of itself and its analysis of the legal relationship between the two companies, the drivers and passengers. Any organisation (a) running an enterprise at the heart of which is the function of carrying people in motor cars from where they are to where they want to be …. But (c) requiring drivers and passengers to agree, as a matter of contract, that it does not provide transportation services and (d) resorting in its documentation to fictions, twisted language, and even brand new terminology merits, we think, a degree of scepticism.

It quotes, in agreement, a similar case decided by the North California District Court (11th March 2015), also rejecting the assertion that Uber is ‘merely’ a technology company, stating succinctly:

Uber does not simply sell software; It sells rides. Uber is no more a ‘technology company’ than Yellow Cab is a ‘technology company’ because it uses CB radios to dispatch cabs.

And the ET continues:

[90] ‘The notion that Uber in London is simply a mosaic of 30,000 small businesses linked by a common ‘platform’ is to our minds faintly ridiculous. In each case, the ‘business’ consists of a man with a car seeking to make a living by driving it.

Words to live by, and so rare.

What are the implications of the case? Despite the loud headlines, suggesting that it will affect not only 30,000 drivers in London and 40,000 across the UK, but the gig economy overall, it is worth reiterating that Uber drivers were only guaranteed worker’s rights, which are far more limited than employee’s rights (for example, they have no right for compensation for unfair dismissal). Moreover, Uber immediately wrote to its drivers that it will appeal the decision. Indeed, it continued its ignominious tactics by writing to the drivers that the decision applies only to the two drivers who submitted the challenge, and therefore there is no change in the driver’s ‘partnership with Uber’. This is obviously misleading, to say the least, but to what extent can the decision apply to the gig economy as whole? Other developments, such as the HMRC investigation into the status of Hermes drivers, suggest that authorities are finally awakening to the precarious reality of workers in this brave new world. But for the time being, we can take comfort in what is, at the very least, a temporary victory for commons sense.

Sussex Clinical Legal Education Launch

Amir Paz-Fuchs
Amir Paz-Fuchs

Below is the text of my talk at the Sussex Clinical Legal Education Launch Event, which took place 5th October, 2016, at the Old Courthouse, in Brighton.

 

I would like to say a few words to introduce, from our perspective, what we’re doing, and why we’re doing it. Sussex Clinical Legal Education is both a practical endeavour and a new way to think about teaching law. It is practical, because it is about exposing students to the difficulties that litigants face when seeking to access justice

In The Rule of Law, Lord Bingham wrote that the “denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law”. The increase in court and tribunal fees, on the one hand, and cuts to legal aid, on the other, are, to borrow the phrase from none other than the President of the Law Society, “a huge setback for justice in the UK” that will deter people from appealing adverse decisions.

But it is also an important development in the way we teach law. The Association of American Law Schools wrote, almost 25 years ago, that

Clinical education is first and foremost a method of teaching. Among the principal aspects of that method are these features: students are confronted with problem situations of the sort that lawyers confront in practice; the students deal with the problem in role; the students are required to interact with others in attempts to identify and solve the problem; and, perhaps most critically, the student performance is subjected to intensive critical review.’

Indeed, the way we see it, this is a start of a revolution in the way we think about teaching law, about our commitments to the community, and about our engagement with the legal profession in Brighton and the region.

So what are doing now? From the beginning of this academic year, we’ve started a new Clinical Legal Education module. Students on the module take part in lectures on access to justice and the role of clinical legal education as a group, but each student is also involved in one of five projects, or clinics. If you look through the brochure, or on our website, you will find some details, but very briefly, they are:

First, Citizens Advice – an exciting collaboration with Central and South Sussex Citizens Advice, led by Bonnie.  Students received training with Citizens Advice, and have already been meeting with clients as part of the gateway service. We’ll be looking towards collaborating with other Citizens Advice Branches in the near future.

Second, CLOCK – in this project, led by Lara and Marica, students sit in the Court to assist litigants in person with forms, arranging court papers, suspending evictions and small claims, and finding legal advice.

Third, Employment Law Clinic – Ioannis and myself oversee students who offer free legal advice in areas of employment law. In doing so, students are supervised by external solicitors from one of four law firms that have already expressed their willingness to assist us: DMH Stallard, Fortis Law, Healys and Martin Searle.

Fourth, Family Law Clinic – here students meet with clients and offer free legal advice, supervised by a solicitor who is also a member of staff – John Jupp, in areas including family disputes, divorce, separation, children issues, co-habitation and financial matters.

Fifth, and finally, the Housing and Welfare Law project involves collaboration with two housing charities – the Brighton Housing Trust and JustLife. Alex and Lucy supervise the students, who engage with people in temporary accommodation, who have difficulties accessing benefits, and/or who are not sure what rights they have.

So as you can see, Sussex Clinical Legal Education already involves a wide range of models: students in courts, students in charities, students in the communities, students on campus. Students giving legal advice and students facilitating access to professional, legal advice.

It involves an inside-out, and an outside-in, process. Inside out – in the way we teach, what we do in classrooms, but also managing the enthusiasm from quite a few members of staff who have stepped up with ideas to develop programmes and clinics in their field of interest. These already include environmental law, creative industries, and criminal justice, for example. But it is also outside-in, by which I mean responding to approaches and needs from the community, and in particular – from our new-found friends and partners. Here we find that there is a dire, and unsurprising, need for assistance in areas of asylum and migration, which we will try and respond to.

So this is a good opportunity as any to thank project leads for the incredible amount of work they have put in for the past two years of planning; to John Jupp, John Child and Carly Brownbridge for their crucial role in steering the project; to Andrew Sanders and Sue Millns, and formerly – to Stephen Schute and Heather Keating, for their support and financial commitment on wbehalf of the school; and finally, but crucially, to our partners, in the community and in the profession: without your support we could never have gotten off the ground, and as a result of  your enthusiasm we know that this only the beginning.

So clinical legal education is very much about the profession, and about the community. But it is also very much about students. Law students. Our law students. There have been quite a few studies, here and abroad that show that many students come to law school for altruistic, rather than self-interested, reasons. They want to make the world a better place, address injustices and pursue social justice. They leave law school, however, in a very different mindset, concerned mainly about, well, making money. To what extent have they just ‘grown up’, and to what extent has the law school played a role in this change of heart? Whatever the answer you give, it is clearly the case that clinical legal education helps keep the passion alive, showing students that, equipped with the power of the law, one can truly do good, and improve lives. And this is true, of course, not only in their student lives. For lawyers are gatekeepers to the realm of law – they, we, you, construct the law and also have a role in deciding how high are the walls between lay members of the community and a true understanding of their rights. This is, after all, a great deal of what access to justice is about.

Can you please join me in thanking them, and our speakers – Robert Bourns, Joe Miller and Prof Adam Tickell, for helping make this a very memorable evening.

 

Amir Paz-Fuchs is Director of Sussex Clinical Legal Education.