More letters after your name than in it

They're all at it. The College of Law was granted the power to award degrees last year and has now awarded 599 LLB degrees to students who have completed their GDL and BVC or LPC courses. The Inns of Court School of Law allows BVC students to gain an LLM (in Professional Legal Skills) by completing a 15,000-20,000 word dissertation. Now BPP has also gained degree awarding powers. I understand that they will be offering LLB degrees to GDL students and will provide an option for BVC/LPC students to upgrade to an LLM by completing a couple of extra courses. The big question is what value will these qualifications have to the outside world?

This has made me think...

(You know, it's got me thinking)*. Yes, although it has been rather quiet round here lately (leading to a public rebuke), a number of interesting issues have arisen which have led me off of some tangential thoughts. One subject that has exercised me lately has been that of retribution and rehabilitation. The case of Chindamo started me off on this path. I appreciate that the world has moved on since then, but I must plead the defence of being exceptionally busy as I have started a new job and a new course at the same time, leading to me being quite behind the times at the moment. The issue of retribution and rehabilitation is central to why and to what extent we punish criminals for their crimes. Once they have served their time then the retributive component of that punishment must be over. This is why I have no issue with Learco Chindamo's right to stay in the UK upon his future release from prison. The argument could be made that the sentence itself is too short, but that is an entirely different issue. For what it's worth I think that the length of sentence is appropriate given his age, but it is an argument that I could entertain. What I cannot see is what the purpose of expelling him would be, when he is to all intents and purposes a UK national.

One of the most fascinating aspects of studying and working with the law is how it makes you think, challenges your preconceptions and then forces you to acknowledge that you may have been wrong. It's probably true to say that at certain levels the academic study of many subjects does this too, but what I have noticed with law is particularly how my own internal inconsistencies of argument are challenged. This leads me back to Chindamo. I have few difficulties in accepting that upon his release he should be allowed to try and build as normal a life as any other murderer. However, my initial reaction when I first heard that Lee Hughes was to be signed by Oldham Athletic FC was an outbreak of moral outrage. Hughes was a moderately succesful forward (0 goals in 23 Premier League games) whose chairman used to reward his goal scoring feats with gifts of fast cars. This proved to be a particularly bad idea when his Mercedes CL500 was involved in a crash which killed a passenger in another vehicle instantly. Another passenger died over a year later. Hughes went on the run for a day. Publawyer will wisely avoid to suggest that this would allow the Jack Daniels in his bloodstream to dissipate. During his incarceration he somewhat inevitably found religion and is now a 'changed man'. While I feel that the sentence (six years) is atrociously light I also have to accept that I cannot square my gut feelings on this with my thoughts on Chindamo. Unlike Oldham's chairman Simon Blitz I cannot cowardly refuse to pass moral judgement, but I can admit that once his sentence is complete perhaps Hughes does have the right to resume his career. I sometimes naively cling to the ideal the professional sportsmen should act as role models, but they are, at least from one perspective, all businessmen. Of course the other perspective is that football clubs are all institutions with their roots in the local community and should bear this in mind rather than scrambling mindlessly to reach the soul sapping money of the advertisers. Once they lose interest clubs are going to realise that all they have left is the fans.

Hughes has so far only played one game for Oldham, playing all 90 minutes of a 4-1 defeat to Hartlepool. Perhaps his punishment is still ongoing.

There are a couple of interesting current American cases to contrast these with. One is Michael Vick who is unlikely to play professional American Football again after his guilty plea to dog fighting and gambling charges (although note that the NFL's main objection is to the gambling not the animal cruelty), the other is the case of Scott McCausland. McCausland was convicted of piracy and upon his release from prison is only allowed to use a computer with monitoring software installed forcing him to use Windows. Cruel and unusual, anyone?

*10 indie prestige points to the first person to identify this line. Don't just google it, you're only cheating yourselves. Anyway if you do cheat how do you sleep? How do you last the night and keep the dogs at bay?

HR Update

I missed this when it first came out, but courtesy of the Consilio updater here is the latest Joint Committee on Human Rights report. It is 107 pages long so might be one for a lengthy train journey, but the topic (Older People in Healthcare) is vitally important and one of the areas where Human Rights legislation can potentially make a great difference, but which are traditionally ignored in the media hysteria about KFC for perps and convicts getting released when they've finished their sentences.

Spot the Difference

If you've written for the "popular" press in the last week try this little exercise. See if you can spot the difference between this and this. Then try applying your new found knowledge to the Chindamo judgment.

Then you might like to try:
The Chindamo case
Human Rights - once more with feeling
Learco Chindamo and the law

Finally, you might be surprised to discover that it is possible to write a reasonably balanced and (shock horror!) accurate report. Try The Guardian and The Times.

This exercise is available free of charge, even if you are a lowly Secretary of State for Justice or a humble Leader of the Opposition. Not too hard was it?

Nu Looks

Ok, I try to keep the non-law postings brief and to an absolute minimum, so all I've got to say is that I'm in the process of messing around with the site look. Let me know if I hit upon anything you really like or really despise. I check any changes with FF, IE and mobile Opera, but do let me know if it seems to be broken in any browser/OS combination.

If you subscribed to the feed a long time ago it might be worth changing to the feedburner one, it doesn't seem to randomly claim to have a whole load of new postings all the time.

Incidentally, is it just me or are Blogger templates a total pain to try and change? Would I be better off switching to Wordpress? On the subject of templates if you use Google Analytics and then change your template, don't forget to add the tracking code back in again otherwise you end up why absolutely nobody has visited for two weeks, which is what happened to ... err ... somebody I know (puts hands in pockets, walks away whistling).

Pupillage and Postgraduate Qualifications

Slightly off topic for this august web journal, but I have been thinking quite a bit about this post on Simon Myerson's excellent blog. Simon suggests that a Masters degree is generally not much use in gaining a pupillage. Barrister-2-b has also asked whether a Masters degree can boost the chances of getting pupillage. As the last few pupils I have spoken to have all had some sort of postgraduate qualification it seemed to me that this must confer some sort of an advantage, but the opinions of those in the know was mixed.

In the spirit of statistical adventure I donned my favourite anorak and gathered information from 50 sets in the South East, mainly in London, chosen on a random basis (although it seems to be slightly skewed towards Chancery sets and away from Criminal) from the latest Chambers Student Guide, on tenants that they have taken on in the last five years. This has not been done with any degree of scientific rigour so don't be surprised if it seems like cold fusion if you try and recreate these results. I have tried to exclude the Oxford, Cambridge and Dublin 'fake' MAs, although it is possible that some have slipped through. It is equally possible that some qualifications have been under reported on the web. A few websites have not been updated for the most recent batches of tenants, so the information used is for just three or four years. What I haven't been able to do is analyse the type of postgrad qualification in too much detail as many websites don't list these, but merely describe them. So, if for instance, someone is described as having "a Masters from UCL" I can't tell if that is an LLM or an MA in Archaeology of the Eastern Mediterranean and the Middle East, so I have simply recorded it as a postgrad level qualification. The websites of the 50 sets yielded information on a total of 350 barristers. At an average of about 600 new tenants a year, this represents around 11-12% of the total number taken on during this time. Perhaps most importantly, this data is for pupils who were offered tenancy - it does not tell us anything about those who got pupillage, but weren't good (or lucky) enough to continue past a year.

Out of these 350, seven had moved over after practising as a solicitor. I have included them in the pie charts, but left them out of the percentage comparison chart at the bottom. Note how the purple (or the blackcurrant in the pie) which represents those with postgraduate qualifications increases as the value of the pupillage award offered increases and the yellow (or custard) decreases correspondingly. At Chambers offering over £20,000 for a pupillage over half of the recent tenants have a postgraduate qualification.










There is definitely a correlation of sorts in this last graph. I think the slight reversal at £45k could possibly be attributed to the relatively small sample size for that level of pupillage award.

Although as I mentioned above I have not been able to dig into the level of postgraduate qualifications in any great detail, amongst all these qualifications there are:
31 BCLs
40 LLMs
42 MAs
12 MPhils
14 PhDs

What does this mean in terms of the usefulness of a postgraduate qualification in gaining pupillage? It's difficult to be too certain as it's very possible that some of these qualifications have been gained after securing pupillage or even after securing tenancy. None the less, the more that chambers pays its pupils, the greater the likelihood that they will have an extra qualification. As an anecdotal observation, but not one that I recorded data for, it seemed to me going through the websites that at these 'top-end' chambers it was only Oxbridge graduates that were taken on without any postgraduate level qualifications. There are, of course, many non-sinister explanations for this, so I'm not going to jump to the obvious old boys network conclusion.

I'm sure this data needs far more analysis to build an accurate picture, but I hope this adds something to the debate. What I am acutely aware that it does not do, nor do I make any claim that it does, is show causation. The whole thing may also seem blindingly obvious to some, but I think pretty graphs are always good.

Update (1): See Simon Myerson's new post on this topic here.

Update (2): Simon requested a further breakdown of the courses and the institutions offering them. I have gathered information on a further 19 sets bringing us to a grand total of 500 barristers. These extra 150 reflect the general picture given above, but they also offer up a few more examples of different qualifications, so that I now have information on qualifications from 42 different institutions, as follows:
54 Oxford
40 Cambridge
14 KCL
11 Harvard
9 LSE
7 UCL
7 London
6 City
4 NYU
4 Toronto
3 Columbia
3 Pennsylvania
2 College of Europe
2 EUI, Florence
2 McGill
2 Paris

There were a further 26 institutions which only had one representative, such as Birmingham, Bristol, Chicago, Courtauld Institute, Duke Law School, Essex, Georgetown, Konstanz, Middlesex, Newcastle, Nottingham, Open, Belfast, Coventry, Sheffield, Siena, Sorbonne, Virginia, Westminster and Yale.

Among the level of qualifications that I could obtain information on are:
65 LLMs
46 MAs
41 BCLs
20 MPhils
13 PhDs
5 DPhils
5 Diplomas
3 MScs
2 MSts
1 MPP
1 MJur

Among these were the following varied specialisations:
DPhils: Public and Regulatory Law; Modern History; Ancient History; Philosophy
LLMs: Commercial and Corporate Law; Comparative, European and Public Law; Human Rights; Criminal and Public Law; EC Law; French and European Law; International Trade Law; Employment Law; Comparative European and International Legal Studies
MPhils: Medieval History; Political Thought and Intellectual History; International Relations; Historical Studies; Politics; Economics; English Literature; International Development; Philosophy; Theology
MAs: Modern History; Communication Policy Studies; International Economic and Stragetic Studies; Irish Politics; Medical Law and Ethics; 20th C Literature; Irish Politics; Law; Comparative Legal and Constitutional Theory; Arabic and Middle Eastern Studies; Crime, Human Rights and the International Community; Disability Studies; Ethics; Administrative Law; Privacy in English Law; Architectural History; Labour Law; Legal and Political Philosophy
PhDs: Development Education; International Criminal Law; Neuroscience; Urban Consumer Space; Damages and Human Rights; Philosophy; Musicology
Diplomas: EC Competition Law; EC Law; International Human Rights

Judges - they're not all bad

Turns out that when judges aren't making up daft codes, failing to stand down and then coming over all intemperate, getting blackmailed over affairs or smuggling cigarettes and alcohol (way back in the day) they are actually doing an ok job. At least that's what the Annual Report of the Office for Judicial Complaints would have us believe. Dale Simon, Head of the OJC, has been interviewed by The Times about this.

Stockwell II: The Return of the Cover-up

Apparently we're supposed to believe that Ian Blair was totally ignorant about the chaos and misinformation spread by the Met in the aftermath of the shooting of Jean Charles de Menezes at Stockwell station. Either someone's lying or that's a heck of a way to run a police force. Still, hands up who really thought someone would take the blame and get punished? After all it was only Jonathan Foreigner wot got shot.

The full Stockwell Two report is here, a short list of questions and answers is here (note the instructions for the subs at the top of page 2 - very professional).

Elsewhere in the blogipeligo: Geeklayer ¦ Adrian Monck

Inept and Secretive

Well, if you're going to be inept it's probably best to be secretive about it, isn't it? It seems that certain people haven't been secretive enough and the Constitutional Affairs Committee has blown their cover, while saying that the role of the Attorney General is "not sustainable" in its present form. The full report is due next Thursday, by which time we should also have seen Baroness Scotland's consultation paper on the future of her office. Until then I can only speculate about whether it will call for a better grade of ineptitude, one that is even more secretive and thus better at cover-ups.

Head of Legal has already commented several times on possible reforms of the post of Attorney General, for instance Brown's constitutional package, Pat it is indeed, Goldsmith's injunction against BBC and David Pannick and Attorney General, so I won't add anything else until the consultation paper and report are published next week.

Update: By way of a brief update free from any attempt at analysis, here are the consultation document and report as promised, as well as few other vaguely relevant links.

Consultation Press Release
A Consultation on the role of the Attorney General
Constitutional Role of the Attorney General
Times article
The creation of the Ministry of Justice
Scrutiny of Constitutional Reform

Reflections and Musings on YL v Birmingham

Publawyer has been on his holidays with his lovely wife for a little while, so things have been even quieter here than usual (possibly even reaching tumbleweed levels), but between them Nearly Legal and Head of Legal seem to have covered pretty much all the interesting issues while I've been away. Nearly Legal's extensive Blawg review (I counted a bumper crop of 46 links, including one to this humble effort - Thanks NL!) is particularly worth checking. While I've been away I have been thinking a little bit about the recent YL decision. Head of Legal thinks it's quite correct, but I can't agree with that. This is a very important judgment, so this post should be a little bit more detailed and reasoned than normal, possibly with an eye on these guidelines.

Firstly, a bit of background for anyone new to the whole "public authority" debate. Section 6(1) of the Human Rights Act 1998 states that “[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right”, therefore the concept of a “public authority” is crucial to the reach and effectiveness of the Act. “Public authority” has never been adequately defined, but the HRA effectively recognises that there are two different types of public authority – core public authorities and hybrid public authorities, although this terminology is not used in the Act. A core public authority, such as a local authority or the police, must not act in a way which is incompatible with a Convention right, unless one of the section 6(2) exemptions applies (which is essentially when other primary legislation conflicts with Convention rights). A hybrid public authority is one which carries out some “functions of a public nature” (s.6(3)(b)), but is exempted for particular acts if they are private (s.6(5)). The meanings given to “functions of a public nature”, and to a lesser extent section 6(5)’s “private acts”, are key to determining the scope of the HRA. These questions have come before the courts several times, such as in Poplar Housing v Donoghue, Heather v Leonard Cheshire Foundation, Hampshire v Beer and Aston Cantlow and now most recently in YL v Birmingham. The 3:2 majority decision in YL is a clear blow to advocates of an expansionist approach to the HRA or one based on increasing its effectiveness rather than limiting its scope. The House of Lords held that a care home, operated by Southern Cross, providing care and accommodation to the elderly, which had been arranged by the local authority under the National Assistance Act 1948, was not carrying out functions of a public nature. While this has obvious implications for anyone in the same position as Ms YL (possibly as many as 300,000 people according to one BBC report), the effects will also be wider than this. While there is still no single definitive test of what makes a function public in nature the judgment must inevitably restrict the number of functions that can be considered to be so.

Whether this is correct can be examined from two perspectives, both of which are contentious, but one of which is probably clearer than the other.

Policy

Firstly, is this right as a matter of public policy? In other words, regardless of the legal correctness of the decision, is this the way things should be? The better view, as a matter of principle, is surely that Southern Cross is carrying out functions of a public nature and section 6(3)(b) therefore applies, although the section 6(5) exemption may still be relevant in certain circumstances. This conclusion is the only one that gives full effect to the HRA and is based on the simple premise that the provision of care and accommodation to the elderly, whether fully or partly funded by a local authority, is a public function. This is the view laid out in the opinions of Lord Bingham at para 19 and Baroness Hale at 61-72. Therefore, even though Southern Cross is operating as a profit making enterprise, residents placed in one of its homes by a local authority are entitled to the protection of the HRA. It has been suggested that protection for residents like Ms YL is best entrusted to a contractual approach, but this does not give an adequate level of protection for some of the most vulnerable members of society (see Paul Craig, ‘Contracting Out, the Human Rights Act and the Scope of Judicial Review’, Law Quarterly Review, 2002 and Catherine M Donnelly, ‘Leonard Cheshire Again and Beyond: Private Contractors, Contract and S.6(3)(B) of the Human Rights Act’, Public Law, 2005). As a matter of policy this expansionist approach to “public functions” is that preferred by the Joint Committee on Human Rights and seemingly the DCA. It also surely reflects Parliaments intentions in passing the Act in 1998.

Law

Even if we accept that in a perfect world the public good and public policy are best served by Southern Cross being viewed as carrying out functions of a public nature, the second question to be asked of the YL judgment is whether it is correct as a matter of law. As the HRA did not define “functions of a public nature” the courts are effectively being asked to decide what can be considered to be public on a function by function basis, as recognised by Lord Nicholls at para 12 of Aston Cantlow and Lord Bingham at para 5 of YL. Lord Neuberger acknowledges at para 128 that the test applied in any individual case will be constructed to justify a policy based decision. The majority have clearly reached a view on the policy and they don't agree with me. Be that as it may, have they reached the legal decision within the loose framework that the legislation and previous decisions have defined? On the face of it the judgments appear to acknowledge the criticisms of earlier decisions which concentrated too much on the nature of the institution in question. Instead they appear to analyse the function concerned. However, on closer inspection the majority appear to have been too influenced by the nature of Southern Cross as an institution, reflecting their opinions on the policy forces behind this issue. So in all three opinions of the majority it is possible to detect a thread running through them which is concerned with Southern Cross as an institution, and a profit-making institution at that. This is most noticeable in Lord Scott's speech at para 26 and Lord Mance's at para 117, but it runs deeper in the majority's thinking than simply those two paragraphs. That is why Lord Neuberger can list seven factors that suggest Southern Cross was performing a public function (para 154) and still discount them all. While he rightly states that none of these factors are on their own sufficient (at least with the HRA as it currently is), he is, with respect, not giving them sufficient weight when considered together. This is how this judgment has effectively raised the bar for other functions. Despite this it is difficult to say, when no prior definition exists, that they have got this completely wrong. As a matter of law it seems that this function could have quite easily been public or private (or perhaps there's a third category - non-public) and it all comes down to the circularities inherent in a policy-driven definition which is supposed to prove that policy.

It is tempting to draw the conclusion that the majority are basically saying that both interpretations may be valid, but because they don't like one of them the legislation should have been more explicit (as an aside here, notice that Lord Bingham praises the draftsman's wisdom at para 5, while Lord Neuberger criticises the drafting at para 130). In defence of the majority here, that is perhaps not a wholly unreasonable stance to take. Prior to the HRA Ms YL would clearly have had no domestic action against either Southern Cross or Birmingham in defence of her Convention rights. The HRA would clearly give her rights against Birmingham if they were accommodating her, but as the position is not clear with regards to Southern Cross then perhaps the pre-HRA position can be viewed as unaltered. Still, this only works if you don't see care and accommodation for the elderly as a public function.

Solutions?

The problem still remains though - how can this be phrased in the HRA or what else can be changed? This of course is only relevant if you accept my proposition that YL runs counter to the prevailing policy. I have already mentioned my support for the Human Rights Act 1998 (Meaning of Public Authority) Bill and I still believe that this would be a useful clarification to support the underlying policy, but it wouldn't actually have helped Ms YL in this case. The minimum requirement on Birmingham CC under the 1948 Act is simply to arrange her accommodation and they haven't contracted out the arrangement, so unless there is to be an incredibly semantic debate about whether "provision" necessarily includes "arrangement" we probably haven't advanced very far, at least in terms of care homes. Some situations were hinted at in passing in YL which this Bill would affect, so I still believe it has its merits. Beyond that, the Joint Committee on Human Rights has looked into this twice before, in the 7th report of 2003/04 and the 9th report of 2006/07. They considered four possible ways forward:

• Amending legislation
• A contractual approach
• Guidance
• Judicial interpretation

Their preferred solution in 2004 was to allow the interpretation of section 6 to develop in the courts, but that die has been well and truly cast now. This possibility was recognised at para 116 of the 2007 report and the more recent report concluded that new legislation would be necessary. If there is a strong feeling that this particular case is wrong then a simple amendment to the National Assistance Act stating something like "acts carried out in accordance with these sections shall be considered to be functions of a public nature for the purposes of the Human Rights Act". This then causes a knock-on problem in that roughly similar acts which don't have any such statement about them may well be considered not to be public functions precisely because they will be seen to have been excluded and then we're into the problem of having to list every single public function or authority, which is awkward for a concept which Lord Mance rightly regards as not being immutable. This approach has been ruled out by the Joint Committee in terms of listing all public authorities, but they have given some limited support to the possibility of amending specific Acts to state that a particular function is public. My tentative suggestion is a combination of a broader definitional clarification, such as the Chairman's bill, coupled with specific amendments for oddities such as the arrangement of care and accommodation under the National Assistance Act. This may then provide appropriate guidance and framework for the courts to re-examine the concepts and ensure that the original intention of Parliament in 1998 is not frustrated.

Apologies if that wasn't all quite as considered and structured as first promised, it's been a long while in the typing.

There is also a very worthwhile commentary from 1 Crown Office Row here (registration might be needed, I get straight in, but that might be because of cookies).

A few other random links:

• BICL is hosting a seminar on Al Skeini for anyone who is interested.
• Clare Short has shared some thoughts on Gordon Brown's proposed constitutional reforms.
• Constitutional Affairs Select Committee has been very critical of new FOI proposals.
• The Joint Committee of Human Rights has published its 16th report, 'Monitoring the Government's Response to Court Judgments Finding Breaches of Human Rights', and also made the Government's response to the report on Asylum Seekers available.
• The Grand Chamber of the European Court of Human Rights has begun hearing Saadi v Italy.
  
• Finally, researchers might be interested in the Nuffield Foundation's relatively new research initiative on Administrative Justice.