Weekly Notes: legal news from ICLR – 31 October 2016

Posted on 30th Oct 2016 in Weekly Notes

This week’s tricks and treats of legal news and commentary include a rough ride for Uber’s business model, an impressive recognition of a new press regulator, a review of the super-regulator of legal services, and transatlantic trade and data deals under scrutiny. Welcome to Pumpkin Court chambers.

 

Employment law

new-rumpole4

Rumpole – pulling rank. (Cab rank, of course.)

Uber drivers should get worker protection, says ET

An Employment Tribunal has given a preliminary ruling on the question whether freelance cab drivers hired by Uber, the “disruptive” “gig-economy” appsters, are “workers” for the purposes of section 230(3)(b) of the Employment Rights Act 1996, reg 36(1) of the Working Time Regulations 1998 and section 54(3) of the National Minimum Wage Act 1998.

Moreover, their working time should be calculated in accordance with the 1998 Regulations, and they are engaged in “unmeasured work” for the purposes of reg 44 of the National Minimum Wage Regulations and their hours of work should be reckoned in accordance with regs 45 and 47 – for full reasons given by Employment Judge AM Snelson in the London Central Employment Tribunal in Y Aslam and others v Uber BV and others (Case Nos 2202551/2015 etc).

Some Uber drivers like the flexibility of working as and when they please. But it’s like zero-hours contracts, mostly done for the convenience of the employer, or someone who would be characterised as an employer if proper legal analysis were applied to the relationship. Possibly.

The amusing and oft-quoted part of the judgment in this case is para 87 which is worth singling out for its literary qualities:

In the first place, we have been struck by the remarkable lengths to which Uber has gone in order to compel agreement with its (perhaps we should say its lawyers’) description of itself and with its analysis of the legal relationships between the two companies, the drivers and the 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 and (b) operating in part through a company discharging the regulated responsibilities of a PHV [private hire vehicle] operator, but ( c) requiring drivers and passengers to agree, as a matter of contract, that it does not provide transportation services (through Uber BV or Uber London Ltd), and (d) resorting in its documentation to fictions, twisted language and even brand new terminology, merits, we think, a degree of scepticism. Reflecting on the respondents’ general case, and on the grimly loyal evidence of Ms Bertram in particular, we cannot help being reminded of Queen Gertrude’s most celebrated line:

‘The lady doth protest too much, methinks.’ (Hamlet Act III, sc 2).

This is a preliminary ruling, and at employment tribunal level, so despite press reports to the contrary, it does not set a (binding) legal precedent – that will be for the Employment Appeal Tribunal (EAT) when, as Uber has vowed to do, it appeals. Whether, in the meantime, the ET will proceed with the substantive hearing in the two test cases, brought with funding by the GMB union, remains to be seen.

See also: RightsInfo, The Uber Workers Rights Judgment In Plain English for a plain English summary.

 

Press regulation

PRP Board recognises IMPRESS

The Press Recognition Panel is an independent body, set up under Royal Charter in accordance with the recommendations of the Leveson Inquiry, whose purpose is to consider whether any proposed press regulator meets each of 29 criteria in the Charter.

This week, the PRP Board has agreed to recognise IMPRESS (the Independent Monitor of the Press) as an “approved regulator”, having concluded that it meets all 29 of those criteria, and in particular that it is independent of the print and online publishers it regulates, and is appropriately funded.

Earlier this year, the National Union of Journalists endorsed Impress as, “the best opportunity we have for independent press regulation”.

There remains, however, a question whether this will indeed trigger the implementation of section 40 of the  Crime and Courts Act 2013, under which any publisher not belonging to a PRP-recognised regulator would be subject to a prima facie requirement to pay the costs of any legal action brought against it, even if such action failed. This draconian provision could not be implemented unless and until a press regulator had actually been recognised: section 40(6).

However, there now seems some doubt (according to the The Times) as to whether the government will actually allow section 40 to take effect. Although it is already enacted, it is not yet the subject of a commencement order. That will be for the Secretary of State for Culture, Media and Sport to decide.

IMPRESS already has a number of publications signed up most of the larger print newspaper publishers have signed up, instead, to IPSO, the so-called Independent Press Standards Organisation. IPSO has not been recognised by the PRP and has made it clear that it does not intend to even try. Rather, its members (from whom its independence is questionable) have indicated a positive disinclination to submit to regulation under the Royal Charter.

For more on this, see last Weekly Notes (Is freedom of the press doomed or merely abused?)

See also:

 

Legal Services Regulation

Tailored review of LSB and OLC

The Legal Standards Board is charged with promoting the aims of the Legal Services Act 2007, including the regulation of the various legal professions; and the Office of Legal Complaints is the board of the Legal Ombudsman, who hears complaints independently of the professional regulators.

They are both subject to the government’s obligation to conduct a “tailored review” of arms-length bodies every five years, and accordingly an ONLINE SURVEY is under way, to solicit the views of anyone having any involvement with, or interest in, the LSB and/or OLC.

If it is agreed that either of the organisations be retained, the reviews will look at their capacity for delivering more effectively and efficiently, and will include an assessment of their performance. It will also review the control and governance arrangements to make sure they meet the recognised principles of good corporate governance.

The LSB in particular has come under a lot of stick recently for imposing an ever more stringent regulatory regime in individual professionals (think QASA, for example) while attempting to create a more exciting and diverse legal services market by promoting Alternative Business Structures (ABSs, which have not always been wholly successful) and, through its Consumer Services Panel, encouraging the involvement in the legal services market of untrained, unqualified, uninsured and unregulated so-called “professional” McKenzie Friends.

There has been talk of abolishing the LSB, or alternatively, abolishing all the other regulators and just having one. No doubt practitioners and commentators will have their own views on the LSB and its recently published plans, which we discussed in an earlier post, Regulation roundabout: legal services at a critical turning – where to now?

New research into McKenzie Friends

The Bar Council has provided funding for an independent research team, led by Cardiff University, to explore what fee-charging McKenzie Friends do and what difference their support makes to people who deal with a family dispute without a lawyer and to family court proceedings.

The project comprises three strands:

  • Strand one involves in-depth interviews with fee-charging McKenzie Friends
  • Strand two involves in-depth interviews with clients of McKenzie Friends
  • Strand three involves observation of a number of court hearings involving fee-charging McKenzie Friends and linked interviews with those involved in the case (litigant, McKenzie Friend, lawyer, judge)

The project is inviting evidence from litigants who have personal experience of using a McKenzie Friend in their case. Click here for more details. 

 

Family law

Cafcass announces new tools to deal with domestic violence

The Children And Families Court Advisory And Support Service (Cafcass) has announced details of new tools to asses cases featuring domestic abuse. Existing tools include the domestic abuse tool, ‘What we need to know’, the Safe Lives DASH checklist and Banardo’s Domestic Violence Risk Identification matrix (DV RIM). The two new tools are:

  1. The Domestic Abuse Pathway, which is designed to assist with the systematic analysis of domestic abuse cases, without being overly risk averse. It  provides practitioners with a structured, focused and stepped framework for assessing risk in cases featuring domestic abuse.
  2. The Assessment of Coercive Control tool, which should be used where the existing Safe Lives Dash assessment has identified elements of coercive or controlling behaviour. The tool highlights features that are often present with coercive control and supports practitioners to assess this dynamic more fully within the context of applications.

For more details:

 

Dates and Deadlines

Pro Bono week

The 15th annual National Pro Bono Week is taking place 7 – 11 November 2016. Its purpose is to celebrate the breadth and impact of pro bono work undertaken by the legal profession across the year, and to encourage further involvement and development. National Pro Bono Week is a campaign jointly sponsored by the Law Society, Bar Council and CILEx. The National Pro Bono Centre has details and timetable.

 

Law (and injustice) from around the world

Belgium, Canada & the EU

Plucky little Belgium almost blocks CETA

After seven years of negotiation, and after averting a last minute deadlock induced by the resistance of a single province of Belgium, the Canada-EU trade deal, CETA (Comprehensive Economic and Trade Agreement) has been finally agreed.

Wallonia, a staunchly socialist region of 3.6 million people, had been leading objections, demanding stronger safeguards on labour, environmental and consumer standards. Concerns had also been raised about the use of transnational investments courts.

However, the BBC reports that “The changes will still have to be approved by the other 27 EU members.”

Ah. As many commentators did not shrink from pointing out, this nail-biting brinkmanship is likely to be the daily diet of post-Brexit trade negotiations for an independent Britain.

 

Hong Kong

Brit expat tried for murder of sex worker

A gruesome reminder of how the hard-fuelled expat lifestyle can lead to a state of moral anomie. The Times (£) this week reported that a Cambridge educated British banker, formerly employed by Bank of America Merrill Lynch, is currently on trial for the murder of two sex workers from Indonesia.

Rurik Jutting has admitted killing both women in 2014 but has pleaded guilty to manslaughter and denies murder on the grounds of diminished responsibility. Jutting seems to have been living on a diet of cocaine and Red Bull and was in a state of drug-fuelled paranoia and extreme sexual aggression at the time. One of the victims’ bodies was found in a suitcase on his balcony, from which he had threatened to leap to his own destruction at one point, before being arrested.

 

Ireland

Digital Rights Ireland files challenge to EU-US data pact

Privacy advocacy group Digital Rights Ireland has filed a legal challenge to Privacy Shield, an EU-US commercial data transfer pact underpinning billions of dollars of trade in digital services, just two months after it came into force, according to report in the Irish Times.

Privacy Shield, which was adopted on 12 July 2016, replaced the earlier Safe Harbor agreement found to be flawed in the Schrems case (see  Schrems v Data Protection Commissioner (Case C-362/14) [2015] WLR (D)  403). But Digital Rights Ireland claims that the new agreement still does not contain adequate privacy protections. Its claim has been filed with the European General Court (EGC), the first instance court of the Court of Justice in Luxembourg: the case is listed as Digital Rights Ireland v Commission (case T-670/16).

See also: Fortune, This Privacy Group Is Challenging the U.S.-EU Data Pact

 

Northern Ireland

bert_ernie_2967284cBanning your cake and eating it

The Court of Appeal in Northern Ireland has dismissed an appeal by the owners of Ashers Baking Co Ltd from the decision of District Judge Brownlie that, when refusing to bake a cake promoting gay marriage for the respondent customer, Gareth Lee,  they directly discriminated against him on the grounds of sexual orientation contrary to the Equality Act (Sexual Orientation) Regulations (NI) 2006 and on the grounds of religious and political belief contrary to the Fair Employment and Treatment (NI) Order 1998.

The appellants relied on their human right to religious freedom and the fact that the slogan ordered for the cake, “Support Gay Marriage”, conflicted with their Christian beliefs in marriage as a union between opposite sexes. They also relied on their freedom of expression, because the slogan on the cake would have involved them saying something they didn’t want to say (“forced speech”). The Court of Appeal rejected these arguments.

Essentially, if you conduct business in the public sphere, you must abide by public rules of conduct. If you take the benefit, you must also take the burden.

You can read the judgment on BAILII: Lee v McArthur & Ors [2016] NICA 39.

There is a very handy non-technical summary on RightsInfo:  The Great Discrimination Bake Off.

 

Brexit challenge dismissed

An application for permission to claim judicial review of the government’s means of triggering the UK’s exit from the European Union on various constitutional grounds relating to Northern Ireland was rejected by the High Court in Belfast. The case raised but did not decide wider questions which are currently under consideration in the English & Welsh High Court (judgment in which has been reserved), but Brexitologists have nevertheless taken a keen interest in Maguire J’s observations on them.

For a more detailed summary, see UK Human Rights Blog, Belfast court dismisses Brexit challenge

Read the judgment on BAILII: Re McCord,  Judicial Review [2016] NIQB 85.

 

NB  At present, as the Incorporated Council of Law Reporting for England and Wales we do not report cases from Northern Ireland unless and until they reach the UK Supreme Court. However, if we felt there was demand for a more comprehensive approach to coverage, or at least to the indexing and citation of cases from other jurisdictions, we would certainly consider doing so. Please get in touch with me (Paul Magrath) via the contact page on this website. 

 

 

Pakistan

Arrest warrants for shame slaying (familial homicide)

Samia Shahid, 28, from Bradford, died in Pakistan in July. Her father and first husband have been held in connection with her death. Now her mother, Imtiaz BiBi, and sister, Madiha Shahid have been declared “proclaimed offenders” in Pakistan, in their absence from court, and a judge has issued arrest warrants for them. The case is being investigated by West Yorkshire Police. Samia died during a visit to Pakistan, where she had gone because she was led to believe her father was ill. Her husband  Syed Mukhtar Kazim, said that before she went to Pakistan, her family had threatened her life. The family did not apparently accept Kazim as her husband, after she divorced a cousin in Pakistan foisted on her against her will.

The whole saga from July, when the death was first reported, to now, is covered by the BBC in a series of reports here, but for some reason the BBC insists on using, like some diplomatic euphemism, the expression “honour killing” which is oxymoronic and offensive. If the family are innocent, we should be sorry for their loss. But if they are guilty of conspiring to murder one of their own, out of pique or embarrassment at her choice of marital partner, then they have no honour and deserve nothing but scorn and despite. It cannot be the BBC’s business to assuage their self-esteem by pretending their medieval attitudes are in any sense worthy of respect.

 

 

And finally …

A Happy (or spooky) Halloween, via Lexis on Twitter:

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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