Weekly Notes: legal news from ICLR — 31 July 2017

Posted on 31st Jul 2017 in Weekly Notes

This is our last round up of recent legal news and commentary for this Trinity law term, with updates on access to justice, Brexit, corporate manslaughter and presidential tweetering on the brink of chaos. The next Weekly Notes won’t be until the beginning of the Hilary Term in October, but we’ll continue posting case notes, reviews and occasional points of law over the vacation.

 

 

 

Access to justice

Employment tribunal fees order unlawful

Part of the costly and controversial legacy of Chris Grayling’s time in office as Lord Chancellor and Secretary of State for Justice was the decision to hike up court and tribunal fees — essentially the price of access to justice. Combined with cuts to legal aid, for whose implementation and defence Grayling was also responsible, they made it much harder for even moderately well-off people to rely on the courts to uphold and enforce their rights and resolve their legal disputes.

Last week the UK Supreme Court by its judgment in R (UNISON) v Lord Chancellor [2017] UKSC 51 took the wrecking ball to a large chunk of Grayling’s paywall. In a judgment written by Lord Reed, with whom the other justices concurred, supplemented by another by Lady Hale, the court ruled that the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893), which imposed fees totalling £1200 to enable claims involving issues such as unfair dismissal, equal pay or discrimination to be heard by an employment tribunal, was unlawful under both domestic and EU law because it had the effect of preventing access to justice. You can read the court’s own summary here. (A link to ICLR’s case summary will be added shortly.)

Lord Reed said, at para 66:

The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the “users” who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings.

That seems a pretty good description of MOJ thinking under Grayling’s leadership. Lord Reed explains further, at para 68, in a paragraph that will surely be quoted in constitutional law textbooks for decades to come:

At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.

There’s also a pointed reference to the role of parties’ names in reported case law, at para 70, refuting the idea that litigation is of benefit only to the litigants and serves no wider purpose in a common law jurisdiction based on precedent:

The written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved, and each of which is relied on as establishing a legal proposition. The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people.

The court’s decision was welcomed, somewhat caustically, by another former Lord Chancellor:

Unison’s legal team deserve all the praise they have been getting, including notably Unison’s Head of Legal @Adam_Creme, for continuing to battle on a point of principle, despite defeats in the Divisional Court and Court of Appeal.

The decision means the government will have to refund something like £27m in fees already paid, as well as compensation to others who, by reason of the fees, may have lost an opportunity to pursue claims. However some newspapers, taking their cue from some business leaders, reacted negatively, suggesting that the decision was a bad one for business and would encourage unmeritorious claims (a point specifically addressed in the judgment).

Litigation Futures reported that the civil courts recorded a surplus of more than £100m in 2016–17, according to the annual report of HM Courts and Tribunals Service (HMCTS). Much of that comes from the new high court fees. Tribunals, on the other hand, made a loss. Their loss will be all the greater now. The report notes, however, that

“A fees strategy review is underway to seek to balance the interests of all court and tribunal users and the taxpayer in the wider context of funding for the system overall.” (p 74)

Brexit

Talks stalled

A second round of Brexit negotiations ended inconclusively, with the UK team seemingly ill-prepared and the EU team disappointed and frustrated. A widely circulated photograph appeared to show the EU team on one side of the table, each of them with a pile of well-thumbed preparatory paperwork, while the UK team opposite, led by Brexit secretary David Davis, appeared breezily paperless and looking smugly overconfident. By way of explanation, it was said they had not thought to produce a bunch of paperwork just for a photo-op. But if you mean to make a good impression and look businesslike, wouldn’t that be a wise move? They looked instead as though they’d been caught napping by rather better prepared opponents in an event in which appearances might be just as important as substance.

As to substance, The Times Brexit Briefing reported last week that

There was a distinct air of frustration in the closing press conference from the EU’s chief negotiator, Michel Barnier about the lack of clarity in the British position. “We require clarification on the financial settlement, on citizens’ rights, on Ireland,” he said.

The lack of a British position paper was particularly frustrating, said Barnier, and it was necessary for one to be produced rapidly. But that would be difficult, said The Times, when the UK “cabinet is divided on what we should offer and there is no common government position”.

Chickening out of a chlorinated trade deal

America currently exports relatively little meat and dairy products to Britain, mainly because of restrictions imposed by EU rules on the use of growth hormones in cows and the practice of washing chicken carcasses in chlorinated water. Now it seems UK trade secretary Liam Fox has complained about the UK media becoming “obsessed” by chlorinated chicken amidst the prospect of a post-Brexit trade deal with the US in which the UK might be forced (by powerful US agri-business lobbying) to accept less stringent restrictions on meat products than hitherto. According to the Financial Times,

Concerns over the safety of the chlorine washes used by US chicken producers to kill bacteria including salmonella has long been a sticking point in transatlantic trade discussions.

Liam Fox was challenged by Campaign Open Britain, a pro-EU group, last week to put his mouth where his money seems to be, by eating a US-style chlorinated chicken in public, in a stunt which (if performed) would be reminiscent of a former Conservative minister, John Gummer, asking his daughter to consume on camera a beefburger made with British meat in the early days of the BSE contamination scare in 1990. What became of Cordelia Gummer, the Mad Cow girl?, asked the Daily Express on the 25th anniversary of this dubious event, reminding readers that:

Six years later a link between BSE and a human form of the disease was officially confirmed in the Commons. By then an EU ban on British beef, which was not fully lifted for a decade, was already in force and the industry was brought to the brink of ruin.

The girl does not seem to have been adversely affected by the ordeal, according to the paper, although

Officially 177 Britons and more than 50 others worldwide have died from Variant Creutzfeldt-Jakob disease (vCJD) — the human form of BSE.

Cordelia’s brother Ben, who did not (so far as history relates) eat the hamburger (or indeed drink the Kool Aid), has nevertheless inherited his father’s interest in conservative politics, became an MP, and served as Minister for the Cabinet Office and Paymaster General from July 2016 until June 2017.

Tory story — collapse of stout party

As for the Conservative Party, one of its own members (Matthew Parris), in his weekly column in The Times, Saturday 29 July, described it (with sadness and shame) as follows:

The Tories are turning Brexit into a humiliating shambles. They called a referendum when they didn’t have to, they accepted the result, they willed Brexit, they promised Brexit, and now they’re comprehensively failing to organise it.

Leavers (on Twitter) often criticise Remainers for talking down the country and willing it to fail just to spite the Leavers. The problem is, for Remainers, it would be a lot easier to accept the referendum result and the inevitable consequences if the process were being managed with some degree of apparent competence. At the moment, it sometimes seems as though we are witnessing constitutional surgery being performed by chainsaw-wielding superclowns.

 

Crime

Grenfell Tower fire: corporate manslaughter charges likely

The Metropolitan Police have indicated, in a letter sent to survivors and the families of those who died in the Grenfell Tower fire, that corporate manslaughter charges are likely to be brought against the Royal Borough of Kensington and Chelsea (RBKC) and the Kensington and Chelsea Tenant Management Organisation (KCTMO). According to the letter, quoted in The Guardian, the Met says

there are reasonable grounds to suspect that each organisation may have committed the offence of corporate manslaughter…

This is not unexpected (as we reported earlier: Weekly Notes — 19 June 2017. See also Lawyer 2B, The Grenfell Tower fire: the legal ramifications). Nor does it rule out charges being brought against other organisations or companies, including the various construction companies involved in the tower’s recent refurbishment and the fitting of what has proved to be highly combustible cladding.

But David Lammy MP, who called for a full criminal investigation shortly after the disaster, suggesting the likelihood of corporate manslaughter having occurred, is now saying this may not be enough. He points out that under the Corporate Manslaughter and Corporate Homicide Act 2007, on which the police seek to rely, convicted organisations can be heavily fined, as well as publicly shamed, but no one goes to jail:

“A fine would not represent justice for the Grenfell victims and their families. Gross negligence involuntary manslaughter carries a punishment of prison time and I hope that the police and the CPS are considering involuntary manslaughter caused by gross negligence.”

However, gross negligence manslaughter is a common law offence which is harder to prove, and the likelihood of particular individuals being identified as responsible for breach of a duty of care is therefore slender.

Fire safety tests failed

More rigorous tests carried out on a similar combination of insulation and cladding as the Grenfell tower have been failed in the case of 82 other buildings, more than half of which were owned by local authorities. The government announced (not before time, one would have thought) an independent review of building regulations. Meanwhile, steps are being taken to render buildings safe, in many cases by replacing the cladding altogether. However, the report whose findings were disclosed by the government last week cannot be published nor can the location or identity of all the owners of the buildings be revealed because of commercial confidentiality and intellectual property rights, it has been asserted. This seems bonkers, given the risks faced by residents, and has once again been the subject of vociferous criticism by David Lammy MP. The inquiry into building regulations will be led by Dame Judith Hackitt, who chaired the Health and Safety Executive and chairs the EEF manufacturers’ organisation.

Fake compensation allegation

A man who claimed that his family had died in the fire and claimed up to £10,000 from the victim relief fund pleaded not guilty to charges of fraud at Southwark Crown Court and was remanded in custody, according to the Guardian. The defendant, Anh Nhu Nguyen, 52, of Beckenham, south-east London, is not believed to be married or have children. The prosecution allege that he told agencies dealing with victims in the aftermath of the fire that he had lost his wife, his child and all of his worldly possessions in the blaze, and was given cash, accommodation, food and clothes. He then applied for the lump sum of £5000 that victims were being offered. But it was when he was interviewed by police officers, on the assumption that he was a victim, that his story unravelled.

 

Recent reads

Internet Newsletter for Lawyers

The July/August 2917 issue is now out, available to subscribers by post and online here. Includes articles about robotic lawyers and clerks and electronic evidence from the internet. Essential bimonthly reading for all switched on lawyers and providers of legal services.

Counsel Magazine

The August issue of the monthly journal for members of the Bar of England and Wales has just been delivered, by post, and is available online (much of it free to air), including Andrew Langdon QC’s chairman’s column, a piece by Jolyon Maugham QC entitled Law & Society about lawyers using pro bono to help build a better society, and a piece by Lucy Reed, Letting Facts Get In the Way, about the work of the Transparency Project (particularly topical in the wake of the misguided and misinformed hoo-hah over the Charlie Gard case).

 

Law (and injustice) from around the world

America

Hocus Potus !— or Hire’m Fire’m

Twitter has its uses, but as a channel of government administration it may not be ideal. It’s a bit like shouting out of the window above a crowded street rather than giving instructions in a memo addressed and copied only to the relevant persons inside an organisation. That has not prevented POTUS, the President of the United States, Donald Trump, from using Twitter to manage his team, as well as to conducting diplomatic relations with foreign powers and attending to other matters of state via his timeline, and thus conducting his administration in what is certainly a commendably transparent manner.

Since the current White House Chief of Staff at the time was someone called Reince Priebus, he had by necessary implication been sacked. The First Tweeter of the United States (FTOTUS) duly confirmed this 11 minutes later.

According to the New York Times (not a fan) “Mr. Priebus’s ouster was the latest convulsion in a White House that has been whipsawed by feuds and political setbacks in recent days.” (Interesting new word: whipsawed.)

All this followed another swift job-grab about a week before, when FTOTUS appointed former hedge funder honcho Anthony Scaramucci (aka The Mooch) as White House communications director, forcing the very loyal but often ludicrously parodied Press Secretary Sean Spicer to resign. (See Atlantic, The Scaramucci Takeover.) Spicer could spin till his head fell off, but he couldn’t stomach reporting to Scaramucci, it seems. Nor did Priebus last long, after a tirade in which, by accident or design, Scaramucci spilt the beans (or his own bile) on the then still chief of staff, whom he accused of being paranoid, as well as Trump’s chief strategist, Steve Bannon, whom he accused of autofellatory ambition, in a telephone call to a New Yorker reporter, Ryan Lizza, on the topic of unauthorised leaks. The phone call was itself a form of leak, and people have wondered if it was sanctioned by the Mooch’s boss, FTOTUS himself, since it seemed to predict very accurately the likely fate of Priebus (whose alleged paranoia was therefore justified); and contained threats to sack lots of other staffers in order to drain the swamp of potential leakers. It’s a rollercoaster read.

Pakistan

[Im]moral justice

The BBC reported (and a large number commented, with varying degrees of prejudice) on the news that a village council in a remote rural part of Pakistan had “sentenced” an innocent girl, aged 16 or 17, to be raped in public by the brother of another girl (12) who had allegedly been raped by the brother of the first girl. The BBC refers to a local newspaper, Dawn, which describes the village council as a panchayat, while the BBC itself calls it a jirga. It suggests the council was made up of members of the two families, who are apparently related. However, it seems the mothers of the two girls reported the matter to the police, who then arrested between 20 and 40 council members. Dawn says the reports were made “at a police station inside the Violence Against Women centre in Multan”, the existence of which indicates the scale of the problem. The BBC comments:

Jirgas, a kind of council formed of local elders, often settle disputes in rural Pakistan. However, they are illegal and have been condemned for a series of controversial rulings — including ordering so-called “honour killings” and past incidents of “revenge rape”.

The idea that two wrongs made a right is a common enough one in criminal justice systems, even in quite advanced civilisations (to misquote the Bible, “vengeance is mine, sayeth the law”), but the idea that the wrongs should be visited on innocent people instead of the actual perpetrators seems especially barbaric. Two points seem worth making.

First, in answer to many of the more prejudicial comments on the BBC’s story, this is not an aspect of Sharia law. It’s a hangover over from ancient tribal customs to which a cracked veneer of religious respectability has been applied. (And if you think “that couldn’t happen here”, try watching or reading The Handmaid’s Tale.)

Second, it is against the secular law in Pakistan, not part of it. However, in its coverage of the story Reuters observes that “In most of the country, jirgas are tolerated but not recognized by the formal courts and police.” This reflects the fact that:

Pakistan has a centuries-old tradition of quick justice handed down by gatherings of local elders, known as jirgas or panchayats, seen by many villagers as preferable to the often-cumbersome and corrupt formal legal system.

In this case, the police have arrested a number of people who may, perhaps, be tried and punished. However, Pakistan’s record of enforcement of the law in such matters is patchy: in an earlier case in which an innocent woman was “revenge raped”, most of the perpetrators were acquitted by the Supreme Court because of a lack of prosecution evidence. The victim, Mukhtar Mai, complained that the police bungled the case. She has since become an outspoken women’s rights activist and runs a school for girls in her village.

 

And finally…

ICLR has now launched its beta version of ICLR.3, the online platform that will eventually become your first port of call for all case law research. Existing subscribers to ICLR Online can try it out for free. Anyone else needs to be set up with a special trial account. If you’re interested, click for more information here

That’s it for now. Our thanks to all who flagged up stories, via their blogs (which we always try to acknowledge) and via Twitter (where useful tweets are retweeted).

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.

 

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