Putting the Legal Cheek stake in the ground
2017 started as it meant to go on: with a Gina Miller decision-shaped bang to set its legal affairs-heavy tone. The past 12 months have been characterised by Uber legal challenges, a middle finger to employment tribunal fees, Supreme Court swear-ins (and tours), the end of the Ghosh test as we know it, a legally eyebrow-raising DUP/Tory deal, High Court recruitment crises, the Leigh Day debacle and plenty of Brexit confusion.
This year looks like it’ll be just as varied (and as exciting). Here are some of Legal Cheek’s predictions for legal affairs in 2018.
The ‘gay cake’ case will be the most watched of the year
The Lee v Ashers Bakery case is important far beyond its snappy ‘gay cake’ moniker. For starters, the case goes to the very core of the modern tension between freedom of religion and freedom of sexual preferences.
Aside from the sticky human rights conundrums that make the case inherently important and interesting, the buzz about its logistics has got to be the cherry on top of the (gay) cake. The case will be heard by the Supreme Court in Northern Ireland, the first time the London bench has made such a trip. A combination of the case’s subject matter and new setting is sure to make it one of the most, if not the most, viewed on the Supreme Court’s livestreaming service this year.
Privacy law and data protection will be the next hot topic
Social media has lost its new and shiny glaze, many users growing increasingly concerned about its implications on privacy and data protection. This discontent from below seems to have spurred a legal response from above, the EU’s General Data Protection Regulation (GDPR) coming into force in May 2018.
This new law requires businesses to protect the data of EU citizens to a higher standard than is currently in place. On the social media front, this means Facebook will be unable to use the personal data it holds for advertising purposes without explicit user permission. As businesses scramble to ensure their policies are GDPR-compliant, privacy law boffins at the likes of Open Rights Group and Privacy International will be on the lookout for slip ups, spurring litigation.
The Supreme Court will go to Cardiff
The Supreme Court’s ex-president, Lord Neuberger, wanted to distance the bench from London-centricity. Last year, the justices went to Edinburgh, and announced a Belfast sitting in April/May (for the gay cake case and others). Cardiff is surely next on the agenda.
Brexit in 2018 will be pretty much the same as Brexit in 2017
An unheard-of mix of fascinating and really boring, Brexit in 2017 lost much of its 2016 new-and-exciting sheen. The pace of negotiations and sheer number of complex legal issues it presents has caused many to lose interest. As we slip into 2018, House of Lords committee enquiries into topics including dispute resolution will, hopefully, make things clearer. But, if a perplexing 2017 committee session on the ECJ is anything to go by, it seems all the Lords is doing is prompting more questions.
The Supreme Court will gain another woman
Three justices are retiring from the bench this year: Lord Sumption, Lord Mance and Lord Hughes. If all of these vacancies were filled with women we’d achieve the near-perfect gender parity so many have long wished for.
But it never quite pans out that way. We’ve had various Supreme Court vacancies over the years (think the retirement of Lord Walker in March 2013 and Lord Hope in June 2013, for example), yet original justice Lady Hale remained the only female until October 2017 when Lady Black was sworn in.
That said, the Supreme Court, or rather the Selection Commission, will be hung out to dry if it makes up three new men this year. As a minimum, we have to see one new female justice come the end of 2018. We place no confidence in there being any more than that: just remember there was lots of speculation our 2017 Lord Chief Justice would be a woman; he isn’t.
No one will know what’s going on with the solicitor super exam, still
The Solicitors Regulation Authority (SRA) shook aspiring lawyers’ worlds in 2017 when it announced the stalwart Graduate Diploma in Law (GDL) and Legal Practice Course (LPC) will both be scrapped for a new, cheaper course set to come in September 2020. But alas the SRA has been reluctant to say much about it and months in we have no idea how much cheaper this course will be, what it will look like and who will be running it.
Hopefully, the latter should be announced come the end of 2018 because the SRA is currently in the process of tendering the contract for the exam. Announcing an exam provider will give the proposed super exam more credence. But we anticipate firms’ discontent about the exam dumbing down their trainees and the mass confusion among students will persist for the foreseeable future.
The noose will tighten around fake news’ neck
The fake news phenomenon has grown from irritating tittle-tattle into a viable threat to democracy. A sign of just how widespread and concerning it has become, the European Commission has launched a fake news consultation. The EU body encourages all those who are concerned by the trend to give their views on the spread of misinformation online. The objective of the consultation, closing in February, is to help assess the value of “introducing new actions to address” fake news.
This could well throw up some interesting results and be followed by EU-led regulatory measures. But, to quote London School of Economics researcher Gianfranco Polizzi: “Addressing the post-truth phenomenon requires concerted efforts from multiple stakeholders such as governments, corporations, journalists and experts” — perhaps the problem is too big for the EU to tackle alone.
The achievements of women in law will be a focal point
2017 was a big year for women in the law, thanks almost exclusively to the appointment of the Supreme Court’s first ever female president. 2018 is symbolically an even bigger moment in feminist history more broadly, marking 100 years since (some) women were afforded the vote in post-first world war Britain. And, as we hurtle ever closer to the centenary of the 1919 watershed which allowed women to practice law, expect feminist organisations like First 100 Years to take things up a notch.
We should finally get an answer on the gig economy litigation
Few weeks went by in 2017 without some mention of Uber-embroiled legal action. The position was made much less clear as a result of the various legal challenges being conducted in various courts, for example: the Employment Appeal Tribunal and the European Court of Justice.
The most pressing case to Londoners is Uber’s Transport for London licensing battle, which is expected to be heard in the spring following a preliminary hearing in December. But of wider interest to the country is the ongoing Aslam and Farrar case, which asks: “Are Uber drivers ‘workers’ for employment law purposes?”
So far the courts have said “yes”. It’s anticipated the case will be heard by the Court of Appeal sometime this year. There had been speculation of a leapfrog appeal to the Supreme Court, the bench already hearing a similar gig economy case (about Pimlico Plumbers) in February. However, the application to do so was refused.
If the next court follows in the footsteps of the lower courts that have come before it in answering “yes”, this will have huge ramifications not only for Uber but for other gig economy businesses and disruptors like Deliveroo.