‘We need to be in touch with the real world; we need to make sure that we all play our part in promoting the highest standards, and in ensuring that we achieve and enhance the quality, integrity and best practice to which we aspire.’
Sir Geoffrey Vos, Chancellor, speaking to the Chancery Bar Association’s annual conference on 19 January 2018.
Without sermonising upon it, this seems an appropriate thought for a week in which we have heard about the less attractive behaviour of some professional men, and witnessed examples of the real world demanding answers to some awkward questions. (Featured image shows The Hands of Justice sculpture by Tanya Russell in Hare Court, Inner Temple.)
Sir Geoffrey’s observation quoted above came at the end of a speech in which, for much of the time, he was banging an imaginary recruiting sergeant’s drum.
‘It is absolutely critical to the rule of law that we manage to attract the highest quality judges to determine business disputes in this jurisdiction for the benefit of national and international parties. I am not saying the quality is less important in other subject areas. It is not. But I am concentrating on Business and Property for obvious reasons, because it is my area of responsibility.’
Indeed, and as he went on to recount, Sir Geoffrey has already launched new Business and Property Court centres across the country, in Birmingham, Leeds, Manchester, Cardiff and Bristol, with plans for further regional centres in Liverpool and Newcastle.
‘If we truly want to retain what I unashamedly describe as a pre-eminent position for our justice system after we leave the European Union, we are absolutely going to have to make sure that our courts offer world-leading quality in our Business and Property Courts.’
The problem, though, was a lack of judicial ambition at the Bar, fuelled in part by reports of poor pay and pensions, lack of support and resources, and intolerable workload. Sir Geoffrey attempted to defuse each of these in turn, before warning of another danger: the risk to the legal profession itself, if the reputation of the jurisdiction should suffer by reason of a lack of good judges to decide its cases.
‘My message is that the highest quality barristers practising in the Business and Property Courts need to step up to the plate. They need to understand that, if they do not do so, they will be destroying the very infrastructure that has allowed them to prosper…’
Judgment given by the Employment Appeal Tribunal (Sir Alan Wilkie) this morning has dismissed an appeal by the Lord Chancellor and Ministry of Justice from a ruling of an employment tribunal that they had failed to justify the age discriminatory effect of transitional provisions of the New Judicial Pension Scheme and thereby to have treated the claimants, 210 full time judges, less favourably on grounds of their age, under sections 13(2) and 67 of the Equality Act 2010. An example of the kind of problem that has affected judicial recruitment in recent years.
For background, see Guardian, Judges win pensions discrimination claim against MoJ
All the Presidents’ Men (and what they may have done wrong)
There has been considerable fallout from revelations in an undercover report by Madison Marriage in the Financial Times about the charity fundraising black tie dinner organised by the self-styled Presidents’ Club last week. The salient points are that the guests were all men, most of them old or middle aged, that they paid a lot of money to attend, that the purpose of the event was to prise money out of them for charity, that the organisers hired male comedians and skimpily dressed female hostesses to help entertain the men, and that some of the men took advantage of the situation to pester, grope, insult or proposition some of the hostesses.
A number of the guests who were welcomed by a well-known TV presenter to ‘the most un-PC event of the year’ have subsequently been identified, and some, like those three wise monkeys, claim to have seen, heard and said nothing of the conduct complained of, at least until their PR managers had been consulted. It’s only fair to point out that the event had two phases: the main dinner, at which some of the fundraising was of dubious taste (auction lots included a night at Soho’s Windmill strip club and a course of plastic surgery with the invitation to: ‘Add spice to your wife’), and an ‘after-party’ elsewhere in the hotel, which many of the guests may not have gone to and which may have had a more sleazy atmosphere. However, the fact that the accompanying brochure included a full-page warning that no attendees or staff should be sexually harassed is indicative of the event’s reputation.
Hostesses were told to wear ‘black sexy shoes’, ‘black underwear’ and not to tell their boyfriends that it was a male-only event. According to the FT:
‘Upon arrival at the Dorchester, the first task given to the hostesses was to sign a five-page non-disclosure agreement about the event. Hostesses were not given a chance to read its contents, or take a copy with them after signing.’
This raises the first of a number of legal issues, which we can do no more than sketch out at this stage.
1. Non disclosure agreements (NDAs): enforceable?
What were they not to disclose and are they enforceable? At the moment we just don’t know. They may simply have been designed to prevent any unwanted tittle-tattle in the tabloids. Or they may have simply been a device by the organisers to intimidate the hostesses who signed them into thinking they would either be precluded from or face impossible hurdles in claiming any legal remedy. Such abuse is the subject of a post by Prof Richard Moorhead on his Lawyer Watch blog, in the context of the NDAs employed in other cases, and their relationship to predatory or threatening litigation, or taking unfair advantage of a third party, as a breach of professional ethics. NDAs: Time to take abusive defence seriously
On this analysis, their intended effect may have been, either in letter or merely in spirit, to prevent those engaged as hostesses from complaining about anything untoward or unlawful. If so, it may not have mattered whether or not, in purely technical terms, they would have been enforceable, which seems doubtful.
Elaine Aarons, a partner at the City of London law firm Withers, was quoted in the Times as saying ‘no confidentiality agreement can prevent anyone from disclosing criminal offences, nor making sexual harassment claims nor from seeking protection as whistleblowers’. However, she also considered such claims unlikely to succeed owing to the fact that ‘the law is just too complicated and the damages too little for anyone to take the risk of making a stand’.
Her colleague, James Hockin has commented on the case: Skimpy outfits, matching underwear and not-so-sexy sexual harassment, noting that ‘As it is, the risk of reputational damage is likely to be the biggest cost to those involved and those associated with the event.’
See also: RightsInfo, The President’s Club: Non-Disclosure Agreements and Law Reform
2. Employment law: harassment in the workplace
Employment lawyers quoted in Employment Solicitor magazine (The Presidents Club, sexual harassment and third party liability ) pointed out that the part of the Equality Act 2010 that specifically prohibited third party harassment and made employers liable if their staff were harassed by customers, clients or third parties, was repealed in 2013, which made bringing a claim for harassment far more complicated. However, the agency who hired the hostesses might still be liable if it could be demonstrated that they failed to take all reasonable steps to prevent harassment from taking place.
Another route might be via the Protection from Harassment Act 1997. Beverley Sunderland, managing director at Crossland Employment Solicitors told Employment Solicitor that ‘the fact that the women recruited were allegedly asked not only to wear short, black clothing but also matching underwear and were encouraged to drink with guests’ and that an ‘enforcer’ allegedly roamed the event, not to prevent harassment but to prevent the ladies from spending too much time in the toilets’ could render the employer open to vicarious liability under the Protection from Harassment Act 1997. Although, under that Act, ‘there needs to be more than one incident which the employer is aware of and fails to take reasonable steps to prevent,’ says Sunderland, the fact that ‘the very person who recruited the ladies concerned has organised the event for many years and was allegedly actually there’ meant she could not claim to have no knowledge of it, she says. Against that ‘Putting a note into the programme is unlikely to be considered sufficient, when balanced with everything else.’
Indeed, one might think the presence of the warning in the programme would reinforce the awareness of the problem.
3. Charity law: reputational risk
Barbara Rich, a barrister with an interest in trusts law, has commented on the charity regulation aspect in Toxic Philanthropy – the demise of the Presidents Club (via Medium). She notes that,
‘As a registered charity, the Presidents Club is subject to charity law, and to regulation by the Charity Commission, which published a statement of concern about it the day after the story broke, declaring that “the alleged behaviour has no place being taken in the name of charity, whether raising funds for good causes or not”.
Citing the Charity Commission’s guidance to trustees on protecting their charity’s reputation, she observes:
‘It’s difficult to understand how any assessment of reputational risk could have led the trustees to conclude that a men-only event for “presidents” who were reportedly welcomed to “the most un-PC event of the year”, with a full-page warning against sexual harassment of its hostesses in its brochure and auctions of cosmetic surgery treatments for the guests’ wives, was not bristling with reputational risk in the year of #TimesUp and wide debate about sexual conduct in public life — both for the Presidents Club and for the charities supported by the funds it raised.’
The Charity Commission has issued Advice to charities that have received donations from The Presidents Club Charitable Trust
‘One positive good that may come of the notoriety and rapid downfall of the Presidents Club is a better understanding of charity trustees’ duty to consider reputational risk in their fund-raising activities.’
One might add that the days when you could get away with pretty much anything by saying it was “all in a good cause” are well and truly over.
4. Professional conduct: disciplinary sanction
The Times has revealed the names of a number of solicitors from leading firms who attended or at any rate were on the guest list. ( Four London law firms named in Presidents Club scandal (£)
It’s not clear whether there were any barristers there. Other professions were represented, in many cases firms booking tables to entertain their own staff or clients. So the question arises whether their conduct, if inappropriate or offensive, let alone offending, would render them liable to disciplinary proceedings, eg under before the Solicitors Disciplinary Tribunal or Bar Standards Board.
In the case of a barrister, the courts have found that lewd and offensive behaviour towards female staff at a marketing event held by his chambers was capable of being ‘likely to diminish the trust and confidence which the public places in you or in the profession’, contrary to CD5 (core duty 5) in the BSB Handbook : see Bar Standards Board v Howd  EWHC 210 (Admin);  4 WLR 54.
The Solicitors Regulation Authority (SRA) Handbook sets out a number of Principles that apply to all solicitors, including ‘6. behave in a way that maintains the trust the public places in you and in the provision of legal services’, which is similar to CD5 for barristers. In the case of SRA v Wotherspoon (2014) Case No: 11171 / 2013, a male solicitor who had been convicted of a sexual assault on a female was suspended for an indefinite period for an admitted breach of Principle 6.
5. Media law: risk of a writ-storm?
According to Roy Greenslade’s analysis of the FT’s scoop in the Guardian, when inquiries were first made by the FT to confirm details in the story, there was a wall of bland denial. But then there came the legal pressure.
‘There was said to have been “a blizzard of threats from company lawyers”. The FT was looking at catastrophic repercussions … until publication, which was followed that evening by a BBC Newsnight interview with [Madison] Marriage. Social media exploded with indignation.’
After that, says Greenslade, even the tabloids came on board, with the Sun using expressions like ‘“Sleaze ball” and “Upper-class whore house”’ and the Mirror calling it ‘grotesque predatory sexual harassment’. It was left to the Daily Mail, having gleefully dwelt on all the unsavoury details, to complain of ‘virtue signalling’ and the loss to the beneficiary charities.
The threats to sue the FT seem part of the same mindset that insisted the hostesses sign, but not retain copies of, non-disclosure agreements. Something that would not have stood up in court for long, but might be enough to strong-arm a less determined publisher. The chance of a libel claim succeeding in the face of what would have been a comprehensive defence of justification must have been slender, but there might have been more chance of a claim for misuse of private information.
Transparency and Review
The Centre for Women’s Justice announced on 25 January 2018 that proceedings for judicial review against the Parole Board and the Secretary of State for Justice would be brought on behalf of two victims of convicted rapist John Worboys, in respect of the board’s decision to release him early on licence (see Weekly Notes – 22 January 2018)
The women, identified only as DSD and NBV, whose cases were not the subject of prosecutions, successfully brought a claim for damages against the Metropolitan Police for its failure properly to investigate their complaints. Their JR claim has been crowdfunded. The grounds for the JR claim are twofold, as the CWJ explain:
‘The first ground directed at both the SSJ and Parole Board argues that Rule 25 of the Parole Board rules which prohibits the publication of any reasons for a Parole Board decision is ‘ultra vires’ and therefore unlawful as it imposes a blanket ban on disclosure of reasons and thereby abrogates the fundamental principle of open justice.
The second ground argues that the Parole Board decision is irrational on the basis of all known facts including: the long history of cold calculated attacks on a large number of women; Worboys’ failure to acknowledge his guilt until, if at all, very recently; and the fact he has remained throughout his sentence in a high security prison without testing in open conditions, the Board having decided he was unsafe to transfer as recently as two years prior to the Parole Board decision to release him.’
Following their application, Mr Justice Supperstone granted an urgent application from the women’s lawyers delaying Worboys’ release until a further hearing could be held next month to decide whether the legal challenge should be allowed to go ahead, according to The Guardian.
This is an interim order, basically preserving the status quo, pending a decision whether to grant permission for the claim to proceed, it seems.
Commons Select Committee
Meanwhile, the Commons Select Committee on Justice is holding a one-off evidence session to examine the implications of the case of John Worboys, the transparency of Parole Board decisions and how best to involve and support the victims involved. The session will interview witnesses on 7 February 2018 from 10 am onwards.
Sandhurst Treaty on UK-Fr border
The UK and France have agreed a new Sandhurst Treaty on the management of their shared border, reported Free Movement, who take a detailed look in a new post:
‘We’ve heard the spin from Macron and May, but what has actually been agreed and will it have a life after Brexit? Given how central the issue of asylum and refugees was in the referendum campaign — remember Nigel Farage standing in front of the “breaking point” poster? — it has been somewhat surprising that we have heard so little from the government on its plans for a future asylum policy.’
EU Withdrawal Bill
The House of Lords Constitution Committee issued its main report (HL Paper 69) on the European Union Withdrawal Bill on 29 January 2018.
Prof Mark Elliott on Public Law for Everyone commented:
‘The new report is wide-ranging and hard-hitting, the Committee’s view being that the Bill ‘risks fundamentally undermining legal certainty’. In this post, we make no attempt to summarise the report. Rather, we focus on two key and interlocking chapters that address the legal nature and constitutional status of the new body of domestic law — ‘retained EU law’ — that the Bill will create. In doing so, we highlight the Committee’s view that central parts of the Bill are ‘conceptually flawed’ and that relevant retained EU law should be reconceived by treating it as if it were contained in an Act of Parliament enacted on ‘exit day’.’
The EU 27 have already agreed Supplementary directives for the negotiation of an agreement with the United Kingdom of Great Britain and Northern Ireland setting out the arrangements for its withdrawal from the European Union. Having set out a timetable for future negotiation, it discusses transition arrangements and concludes that:
‘The transition period should apply as from the date of entry into force of the Withdrawal Agreement and should not last beyond 31 December 2020.’
Sentience and Virtue Signalling
Criticism has been levelled at the Draft Animal Welfare (Sentencing and Recognition of Sentience) Bill 2017 which is currently accessible in a paper published by the Department for Environment, Food and Rural Affairs on 12 December last year. According to the announcement at the time,
‘The draft bill would do two things. It would increase the maximum penalty for animal cruelty offences from 6 months to 5 years imprisonment, and it would ensure that animals are defined in UK law as sentient beings.’
However, in a recent debate on the Bill, Sir Stephen Laws QC, former First Parliamentary Counsel, said it gave rise to ‘serious concerns’, and a feeling that the purpose of some of its provisions was purely political and could have unforeseen and undesirable consequences. He said:
It is easy to see why, in political terms, it may be difficult to convince those who are concerned about animal welfare that the absence of an obligation like the one that already exists in our law (by virtue of the incorporation of EU obligations into UK law) would not constitute a weakening. The precedent provided by that obligation also makes it more difficult to suggest that an obligation in that form lacks legitimacy as a sensible and practical legal proposition.
On the other hand, the use of legislation as a way of reinforcing a commitment to a policy objective, particularly one expressed in very vague terms, is legally controversial, at least in the UK. Many UK lawyers, and others too, would argue that it is an improper use of the legislative power to make laws with imprecise, insignificant or non-existent legal effects just for the purpose of achieving political ends: viz. reassuring the people that the government is serious about something, or requiring their successors to bring forward legislation if they wish to change or drop the commitment. Serious arguments of this sort have been raised in the past about climate change and child poverty legislation and also other legislation, for example, the Fiscal Responsibility Act 2010.
These arguments are reinforced in cases (and I think that clause 1 is such a case) where it seems likely both that the potential benefits of the legislation are mainly political, and that any legal effects risk going beyond what is intended and will necessarily be adverse, maybe significantly so.
I, myself, would hesitate to suggest that any legislation for a purpose approved by Parliament is capable of being improper. Parliament is sovereign. So, it is perfectly entitled, if it chooses, to pass legislation just to provide emphasis to a political commitment. Nevertheless, I would advise against its doing so except in the most exceptional circumstances.
Fantastic fulmination against using law for virtue signalling from Sir Stephen Laws, former 1st Parliamentary Counsel in relation to new legislation on animal cruelty https://t.co/Bt8QxRxj0T thks to @Walker_Seb pic.twitter.com/uVxkwdFBHM
— Penelope Gibbs (@PenelopeGibbs2) January 25, 2018
One can, of course, think of precedents for legislative futility, the most notable of which is probably SARAH – the Social Action Responsibility and Heroism Act 2015 subtitled ‘An Act to make provision as to matters to which a court must have regard in determining a claim in negligence or breach of statutory duty.’ Or, as Lord Pannick called it in a House of Lords debate, a statement of the ‘bleedin’ obvious’.
Dates & Deadlines
Survive and Thrive Programme: The entrepreneurial barrister and how to grow your business
Middle Temple Survive and Thrive programme continues this week on 31 January at 5.30 with a reception, presentation and networking session at Middle Temple Hall. Tickets are £15. Click here for details.
Vulnerable Clients and The Family Justice System
Talk by Prof Jo Delahunty QC of Gresham College, at Barnard’s Inn Hall, London on 1 February at 6pm. Doors open 5.30. Click here for details.
‘Do the courts respect diversity or punish it when it comes to parenthood? What does the justice system do to protect the rights of the disabled person to be a parent, and of the child to be adequately parented? Does a disability prevent someone from being a good parent?’
Great Legal Bake 2018
The London Legal Support Trust is organising another Great Legal Bake, to take place between 12 and 16 February with main focus on Shrove Tuesday (aka Pancake Day), 13 Feb. The LLST say:
‘Taking part is easy, all you need to do is register and we’ll send you a bake pack full of materials including posters, labels and stickers. Get a group of friends and colleagues together and organise a bake sale in your office or university and sell your tasty treats.’
Use this form to sign up
Ecclesiastical Law Society Day Conference
The society is holding its Day Conference on the theme of Gospel and Law in Theological Education at the St Bride Foundation, Fleet St, on 17 March 2018. The Conference will focus on promoting education in ecclesiastical law. In particular, it will address the training of clergy and others in ecclesiastical law, and showcase best practice in selected topics. Booking details via ELS.
Transparency Project: Family Court Reporting Watch Roundup
Middle Temple Library Blog: Brexit Highlights 15 – 21 January 2018
Inforrm’s blog: Law and Media Roundup – 29 January 2018
Justice Committee: weekly update
Independent Reviewer of Terrorism Legislation: first Annual Report by Max Hill QC since taking over: The Terrorism Acts in 2016 (January 2018)
Government Computing: Open Data is not a one off process: what the UK needs to improve
Public Law for Everyone: Through the Looking-Glass? Ouster Clauses, Statutory Interpretation and the British Constitution
Lyonette Louis-Jacques via SLAW: New Developments in International Legal Information Resources
Law (and injustice) from around the world
Australia Day celebrations on 26 January were opposed by protests from Indigenous Australians mourning the arrival of the First Fleet on that day, calling it Invasion Day instead. For them, perhaps, the claim of Prime Minister Malcolm Turnbull at a citizenship ceremony that ‘Australia is a nation united in our diversity’ sounds hollow. See ABC news
Be that as it may, the excellent legal podcast, The Law Report marked the occasion with a very interesting discussion of the earliest legal proceedings that took place in the weeks and years after the arrival of Europeans on the First Fleet. The guests are retired NSW judge and historian Greg Woods and Professor Bruce Kercher of Macquarie University, who talk with presenter Damien Carrick.
In a week that’s also seen Holocaust Memorial Day, the brutalities of early 20th century European anti-semitism cannot be far from our minds. The Italian fascists under Benito Mussolini may not have been so ruthless or comprehensive as the Germans under Adolf Hitler before and during World War II, but they cannot pretend to have been uninvolved, as a discussion at the Italian Cultural Institute showed. ICLR’s Paul Magrath attended and has written it up in a post on Medium: Racial Laws and the Rise of Fascism in Italy
Whilst on the subject of the Holocaust, a proposed new law prohibiting any attribution of blame or complicity to Poland or the Polish people for the death camps set up in their country by the Nazis during its occupation during World War II has caused uproar and protests from Israel. But the Polish government reacted by saying the law was designed to prevent the misunderstanding caused by expressions such as ‘Polish camps’ which misrepresented the truth. The latest position seems to be that Israel and Poland have agreed to hold talks to resolve the issue. See Time magazine, Israel and Poland Have Agreed to Talks Over a Controversial Holocaust ‘Blame’ Bill
And finally… Tweet of the week
CrimeGirl’s path to law… one of a series which we hope to collect together in some way to help inspire new generations of lawyers from all backgrounds and skillsets, because the common law thrives on diversity.
That’s it for now. We’ll have more next week. Our thanks to all who flagged up stories, via their blogs or on Twitter.
This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.