Law Review: Judges will not be cowed by government, time to rein in the law schools? and an ‘arse from elbow’ guide

Labour government Home Secretaries spend a great deal of time expressing disappointment with the judiciary – largely because because their department and those for whom they are responsible do not comply with the law.  The latest opportunity for a Home Secretary to express disappointment came last week when the Court of Appeal decided to reinstate a judge’s criticism of MI5 in a landmark torture ruling.

While The Lawyer focuses on:  “The Lord Chief Justice Igor Judge has rejected claims that Brick Court’s Jonathan Sumption QC had attempted to interfere with a draft judgment by requesting that a paragraph of the Binyam Mohamed torture ruling be redacted.@ The Times dealt with the rather more meaty issue of why the judges refused to bow to government pressure.

The Times reports: “Today, in the interests of “open justice”, Lord Neuberger and two other top judges decided to reinstate the paragraph, albeit subtly rewritten to make the criticism more narrowly focused on the Binyam Mohamed case. To prevent a continuing censorship row, they also decided to publish the original draft text….The decision brought calls from groups such as Amnesty International, Liberty and Reprieve for a full public inquiry into allegations that UK spy agencies colluded in torture during George W Bush’s “War on Terror”. Ministers were furious. Alan Johnson, the Home Secretary, said that he was deeply disappointed by the court’s decision to “criticise the Security Service in this way”.

The government has every right to express disappointment with a particular judgment – although in doing so with an audience prepared to read the judgment of the Court of Appeal it cuts little ice.  It may well appeal, however, in an election year, to voters who are already whipped into a frenzy by coverage in The Sun about ‘killing burglars’ and judges who are ‘too soft’. Unfortunately, the wider public does not read law reports and may, therefore, not fully appreciate why the senior judiciary is at odds with the government on this and other civil liberty issues. The judgment of the Court of Appeal makes interesting reading.

An extract from Lord Nueberger MR judgment:

In these circumstances, the final version of paragraphs 168 to 170 in my judgment of 10th February 2010 is as follows:
“168. Fourthly, it is also germane that the Security Services had made it clear in March 2005, through a report from the Intelligence and Security Committee, that “they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services’ general ethics, methodology and training” (paragraph 9 of the first judgment), indeed they “denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government” (paragraph 44(ii) of the fourth judgment). Yet, in this case, that does not seem to have been true: as the evidence showed, some Security Services officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials. I have in mind in particular witness B, but the evidence in this case suggests that it is likely that there were others. The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by Security Services personnel. Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning the mistreatment of Mr Mohamed can be relied on, especially when the issue is whether contemporaneous communications to the Security Services about such mistreatment should be revealed publicly. Not only is there some reason for distrusting such a statement, given that it is based on Security Services’ advice and information, because of previous, albeit general, assurances in 2005, but also the Security Services have an interest in the suppression of such information.
169. My concern on this point is mitigated by the fact that the certificates appear to be supported by communications from the US, most pertinently the CIA letter and what was recorded as having been said by the Secretary of State. The US Government, like any other Government, plainly has an interest in ensuring that it controls the flow of any information which it provides to the SyS on a confidential basis, and the fact that it (and other Governments) may well be motivated in this case by embarrassment is not the point: one is concerned with hard facts, not moral judgements.

170. My conclusion on this half of the balancing exercise is this. While there are strong reasons for scepticism, I accept that the Foreign Secretary genuinely believes, and has some grounds for believing, what he has stated in the three certificates, namely that the flow of information from foreign Government intelligence services to the SyS could be curtailed if the redacted paragraphs are published, because that publication would be regarded by those Governments as an unjustifiable breach of the control principle. The normal reasons for deferring to his views on such an issue are diluted by the fact that there is nothing inherently sensitive in the information in those paragraphs, the very narrow and technical nature of the breach, the fact that the US must have appreciated the risk of intelligence material being disclosed pursuant to the law, the fact that other material apparently subject to the control principle has been revealed in the first judgement without objection, and a concern which arises from the apparent involvement of at least one Security Services agent in the mistreatment of Mr Mohamed. However, it is right to weigh against these factors the fact that the Foreign Secretary’s opinion is reinforced by the CIA letter and the notes of the views of the Secretary of State.”

Government fury as judges attack security services

The Guardian reports: Ministers back MI5 after highly critical verdict on secret service involvement in Binyam Mohamed case.

That the government should react with such ‘fury’ is entirely predictable.  Perhaps this says more about the present government than it does the judiciary? Are we likely to see further clashes with government in the coming years? I suspect so.

Time to rein in the law schools?

Beth Wanonoo argues on the Junior Lawyer’s Division website:

There needs to be a set of principles in place to protect students in this marketplace. A ‘law schools’ charter’ if you will. And the SRA should enforce it…

This is what it should contain:

1. Fees must be proportionate to the amount of cost law schools accrue. If the majority of the course is online, that course must be substantially cheaper than one which is ‘off-line’.

2. Law schools should be incredibly, incredibly, incredibly clear to prospective students about the marketplace. They should encourage frank self-evaluation BEFORE the course starts. It is too much to expect every student to be interviewed, but admission to law schools needs to be looked at in great detail.

3. There should be a league table of legal education providers. The SRA should allow the Law Society to rate each law school along five criteria, with each criteria having between 1 and 5 stars. Those criteria: 1. Teaching 2. Facilities 3. Careers advice 4. Administration 5. Employment (as in percentage of grads with jobs). These should be published on the Law Society’s website annually.

Having the ‘employment’ criteria will mean that law schools will be under pressure to keep their admissions strict or risk their ratios being diluted. We must also have clear statistics of how many graduates are employed as paralegals and as solicitors after one year.

4. The SRA must have a blurb in each law school prospectus or its advertising media, saying something like this “the LPC is the purely academic stage of legal qualification. It is no guarantee of admission to the roll and does not carry any rights of practice.”

If the SRA, or the Law Society, or even the JLD don’t stand up for students, nobody else will. At the moment there is little representation for students and consequently little balance between their position and that of the law schools.

I don’t agree with Ms Wanonoo on the issue of fee pricing. This is best controlled by competition and the market. Central Law Training have entered the market with a cheaper option. Whether students will be attracted by a cut-price option for a course provided through a commercial CPD provider with little direct experience of running courses themselves  (They are teaming up with the University of The West of England) remains to be seen.

I have long felt that the fees for the LPC and BVC are ‘pacy’ – with BPP Law School heading the list – but this is essentially a matter of what the market will bear and regulators may have little appetite for getting involved. Law Schools are now required to brief students about the legal market place and give clear guidance on the the prospects. Her view that law courses carry a ‘health warning’ is not unreasonable to draw attention to the realities in the profession of today.

I do agree with her idea that there should be a league table of Law School providers for the LPC (and for the BVC / BPTC).
The Bar Standards Board is now publishing inspection visit reports and demonstrated only this week they are prepared to carry out robust inspections and be blunt – even if they have little in the way of sanction to correct errant behaviour.

Nigel Savage, CEO of The College of Law has long argued that the SRA should beef up its procedures for inspecting law schools  providing instruction for the LPC.  I agree.  Students (or law firms) pay high fees for these courses and they are entitled to know (a) that regulators are regulating and (b) that information is made public.

In the ‘arse from their elbow’ department this week…

RollonFriday notes: “It’s been another poor week for law schools. First Nottingham Law School set its students an impossible question, then the College of Law forgot to hand out a multiple choice answer sheet. Not wanting to be left out, the School of Oriental and African Studies then set its law students the most bizarre exam question in living memory……

RoF provides a helpful cut out guide for law school administrators.

There is more law news… but it is early on Saturday morning… and I shall return to law later in the weekend….

Postcard from The Staterooms-on-Thames coming…soon.

One thought on “Law Review: Judges will not be cowed by government, time to rein in the law schools? and an ‘arse from elbow’ guide

  1. Taking it as a given that the LS and BC are never going to allow the law schools a free hand over the syllabi they teach (a shame imho), make it an additional requirement that all the schools follow the same monthly schedule.

    Allow students to switch providers at the end of each part of the universal syllabus. The overal course fee is then split pro-rata between the providers attended by the student over the duration of the course as a whole.

    It would very quickly up the quality and, in particular, remove the very common complaint levelled against all the providers over padding out their staff and materials with some first rate trash. So, if this month, subject A at provider X is delivered by a total cretin or the materials are shot through with law that is out of date, the student might then choose to move to provider Y for subject B, and provider X then runs the risk that the student will never come back.

    For the BVC/BPTC at least, all the providers assert they are the best. They should, therefore, welcome a merits based system such as this because it will allow them to prove they were sincere in their claims, and not just spouting meaningless puff as might be alleged presently.

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