Brought to account

first_imgObiter, who blushes to reclaim a receipted taxi fare, has watched with awed fascination the Daily Telegraph’s exposure of how MPs have worked parliament’s expenses regime. Justice ministers are among those in the spotlight. Justice secretary Jack Straw, who receives an annual salary of £141,866, repaid the council tax for which he had wrongly claimed, but over the years received thousands of taxpayers’ pounds for improvements to a house in his Blackburn constituency, listed, under the rules, as his second home. According to the Telegraph, improvements included new garage doors, kitchen, central heating system, beds, bathroom and LCD television. Solicitor general Vera Baird, meanwhile, whose annual salary is £125,602, had her £250 claim for Christmas decorations rejected by the Commons’ fees office. However according to the Telegraph, and again entirely within the rules, we should stress, she claimed for mortgage interest payments, repairs, decorations and furnishings to a four-bedroom house in her Redcar, Cleveland constituency. Obiter suspects we will be hearing less from ministers about overpaid legal aid lawyers ‘moderating their expectations of earnings’. For the time being, anyway.last_img read more

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LSB’s £20m is a drop in the ocean, says Kenny

first_imgThe £20m set-up costs of the Legal Services Board and Office for Legal Complaints to be paid for by the sector ‘is a not a real issue’, according to LSB chief executive Chris Kenny. Speaking to the Gazette, Kenny (pictured) said that, against the 2006 Office for National Statistics estimate that the legal sector generates £23bn to the economy, £20m demanded from the eight approved regulators is ‘not enormous’. An initial £15.1m, of the £19.9 m, is due by 28 February 2010, with an LSB consultation document recommending that the Law Society, as an approved regulator, pay 90%. A consultation on these proposals ends on 2 July. Kenny said: ‘We worked out the cost of the LSB and it worked out as £33 per [authorised] person. It is not the kind of cost that will put a firm into bankruptcy. ‘We are in a position of setting a levy and we will send eight bills each year. The individual regulator can decide how to proportionate it. We are a multiplicity of mechanisms. It will be for the approved regulators to decide for themselves.’ The new levy comes at time when the Law Society is struggling to keep future compensation fund and practising certificate fees down. At a meeting of the Law Society council last week, Society chief executive Des Hudson said ‘major issues’ will surround the introduction of the OLC, which will take over from the Legal Services Complaints next year, as there is likely to be some overlap that will add cost. He warned members: ‘How do we deliver cost effectiveness? It is a critical issue.’last_img read more

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Bach rejects Society’s legal aid fee cut fears

first_imgLegal aid minister Lord Bach (pictured) has rejected Chancery Lane’s demand for an extension to the consultation period on proposed criminal legal aid cuts. He also dismissed the Law Society’s allegation that the August consultation paper Legal aid: funding reforms is ‘incoherent’ and ‘deeply flawed’. The paper proposes cutting fees to duty solicitors and reducing Crown court defence barristers’ rates to bring them in line with prosecution fees. It also puts forward other reductions to payments made for advocacy and litigation in the Crown court. The Society has so far declined to respond to the consultation, claiming that it is ‘not reasonably able to understand what the proposals are’. Bach was responding to a hard-hitting letter from Law Society president Robert Heslett, sent to the Ministry of Justice in early September. In that letter Heslett outlined what he described as a ‘host of inconsistencies’ in the consultation, including the lack of any explanation of the Government’s policy aims and what is meant by ‘oversubscription’ on police station schemes.In a detailed reply, Bach stresses that the MoJ is operating to a ‘strict budget’ and stresses that savings must be made in the criminal legal aid budget to protect funding for civil legal aid. The government’s proposals are targeted at ‘removing anomalies, disparities and duplication’ within the existing regime to generate savings, he adds. Lord Bach’s letter can be read: at: http://www.lawsociety.org.uk/newsandevents/news.law Chancery Lane is considering its response. The consultation closes on 12 November.last_img read more

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CPS updates its code for Crown prosecutors

first_imgThe Crown Prosecution Service has issued an updated edition of its code for Crown prosecutors to make it easier for the public to understand how decisions are made. The document, which follows a 12-week consultation, includes a clearer explanation of the public interest factors in making prosecution decisions, and a fuller section explaining out of court disposals. It sets out the discretion for prosecutors to halt a prosecution in exceptional circumstances where it becomes clear that it would not be in the public interest to proceed, even before all the evidence is available. The revised code also outlines the ability of prosecutors to conduct pre-trial witness interviews when required, to assess the reliability of witness evidence or better understand complex evidence. This is the first edition of the code issued by Keir Starmer QC (pictured) since he became director of public prosecutions. It reflects changes to legislation and practice since the previous code was issued in 2004. Starmer said the role of the prosecutor is ‘constantly evolving’ and it is ‘critical that the code is kept as relevant and clear as possible to assist prosecutors in their increasingly diverse roles and specialities’.last_img read more

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OFT’s credibility is in tatters following the failed BA price-fixing trial

first_img Julian Joshua is a cartel specialist partner at Howrey The ignominious collapse last week of the first contested prosecution by the OFT for the cartel offence (section 188 of the Enterprise Act 2002) in the BA ‘Fuel Surcharge’ trial may seem like a farce, until you recall that four entirely innocent defendants had their lives blighted for four years. The OFT wanted the cartel offence, designed to punish individuals who ‘dishonestly’ fixed prices to ‘send a message’. Last week’s debacle certainly sent a message but it wasn’t the one the OFT intended. After the directed verdict of ‘not guilty’, the defendants walked from court with their ‘reputations unsullied’, while the OFT’s credibility is deservedly in tatters. Now locked in an unseemly tiff with Virgin Airlines and threatening to withdraw its whistleblower immunity, the OFT also faces demands from BA to cancel the civil fine it agreed to pay in July 2007. Once the dust has settled, what lessons can be learned? First, justice was a big winner. Defendants charged with the offence in future – if that ever happens – should have no doubt as to the fairness of the judicial process if they go for trial. The ‘undisclosed’ evidence that sunk the prosecution case would probably never have come to light if the defence had not fought tooth and nail at every turn. The OFT must conduct a rigorous self-assessment of its capacity to handle complex trials. How could it have effectively farmed out the crucial task of document disclosure to lawyers representing Virgin, the only other party in the cartel? The OFT’s contacts with its own witnesses were also filtered through batteries of Virgin lawyers. Case selection must be more consistent. Last year the OFT ducked the challenge after widespread bid-rigging was uncovered in the construction industry. A more unsuitable case for the first test run of the cartel offence than BA is hard to imagine. Had they ever been called upon to judge the ‘honesty’ of the accused according to normal moral standards, how would the jurors have viewed the ‘get out of jail free’ card handed to Virgin executives? One can only charitably assume the OFT’s judgment was clouded by the prospect of BA scalps and what it likes to call a ‘high impact outcome’. The OFT’s leniency programme, which grants blanket immunity to self-confessed criminals, needs urgent review. How can the prosecution rely as witnesses of the truth on those who have had to admit they were dishonest themselves? Leniency makes investigators lazy. More effort should be made to detect cartels by old-fashioned police methods. Cartels always leave a paper trail. Indeed, to get whistleblowers though the door at all, there must be a credible risk of being uncovered by other means, or else everyone will soon work out that if nobody talks, everybody walks. It is also clear that, for the cartel participants themselves, leniency is no panacea. From Virgin’s perspective, what may once have seemed a smart competitive move to ‘rat out’ a rival at no risk to itself – apart from lawyers’ fees – could well turn out to be a spectacular own goal. Not only could it now risk being fined itself for the alleged BA cartel; ironically it now has the finger pointed at it by Cathay Pacific alleging a totally different cartel, albeit one strenuously denied by Virgin. Immunity applications tend to set off a chain reaction, and applicants should be sure they have uncovered all their own exposure before rushing in to denounce a competitor. For its part, BA might regret its hurry to settle with the OFT and admit a civil infringement in 2007. Lawyers in ‘leniency’ cases should not be overawed into thinking that rolling over is the only viable defence strategy. Lastly, the cartel offence itself is in the frame. There is a good case for criminalising cartels, but this was not the way to do it. ‘Dishonesty’, inserted in the act by the OFT to send a ‘seriousness’ message, remains untested before a jury. It may never be. After this fiasco, the offence must be a prime candidate for David Cameron’s ‘bonfire’ of useless legislation. last_img read more

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LoveFilm acquisition, steel demerger, fencing sponsorship and shoe sale

first_img Sole practitioners: Manchester firm Heatons advised Jones Bootmaker on its £40m sale to Dutch retail group Macintosh, advised by Midlands firm Browne Jacobson. Discovery channel: London and south-east firm Penningtons advised property investment company Fourteen Ninety Two on the £107m refinancing of 17 Columbus Courtyard, Canary Wharf, London. Lenders MetLife, Duet and The Partners Group were advised by magic circle firm Clifford Chance, US firm Paul Hastings, and City firm Macfarlanes respectively. Cut above: Sports firm Couchmans advised insurer Beazley on a £1m five-year sponsorship deal with the British Fencing Association, advised by London firm Russell-Cooke. Swiss role: Hogan Lovells advised Barclays and Lloyds TSB on financing non-life insurance company buy-out firm ­Catalina’s acquisition of Swiss-based reinsurer Glacier Re, for an undisclosed sum. Magic circle firm Allen & Overy advised Catalina. Stainless deal: Magic circle firm Linklaters advised steel giant ArcelorMittal on the €3.24bn (£2.77bn) demerger of its stainless and speciality steels businesses into a spin-off company. In the picture: City firm Hogan Lovells advised internet retailer ­Amazon on acquiring £200m worth of shares in film rental company LoveFilm, giving it a majority stake. City firm Stephenson Harwood advised LoveFilm. Indian tie-up: Clifford Chance, alongside Indian law firms AZB & Partners and JSA, advised healthcare and medical products supplier Bayer HealthCare on a joint venture agreement with Indian pharmaceutical company Cadila Healthcare.last_img read more

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Making the grade: examining accreditation schemes

first_img The Law Society’s 11 practice area accreditation schemes are undergoing a thorough review.The schemes cover immigration and asylum, criminal litigation, mediation, clinical negligence, personal injury, planning, children, family, advanced family, family mediation and mental health. When the Society split its regulatory and representative roles, all the accreditation schemes went to the Solicitors Regulation Authority.In 2009, however, the Society took the voluntary schemes back under its wing, arguing that they were a reputational issue. While membership is required by the Legal Services Commission in areas such as crime, mental health and children, it is still up to solicitors whether they choose to do publicly funded work. The SRA administers the higher rights, police station representation and insolvency schemes as they are compulsory and therefore deemed to be a regulatory issue.Maureen Miller, head of membership development, says: ‘Once we had set up a robust governance programme, we appointed chief assessors to review the schemes covering crime, immigration, family, children and mental health and ensure the content is relevant and up to date.’The review is due to be completed by the end of June, with the assessors recommending how the schemes can be enhanced, for instance by introducing a career-development, tiered approach. Miller says they will also be setting down criteria for establishing schemes and considering new specialist areas such as private client. Stronger position People and culture Seeking accreditation takes time and resources, so how do you assess the cost/benefit relationship? There is a price to be paid in terms of accreditation and (possibly) consultancy fees, says Guise, but otherwise there are only ‘upsides’. ‘The friction of bringing about cultural change in a firm which does not have Lexcel is not to be underestimated. That’s why I got my firm accredited in 2003 when I set up, so there was no backsliding from subsequent joiners.’ Marsh has no doubts about CQS: ‘Every single firm is running a business, so you have to prioritise. If the market wants you to have a certain level of credibility through a scheme like this then you sit down and do it.’ He is concerned that consultants are quoting around £2,500 to get a firm CQS accreditation. ‘It is the fear factor,’ he says. ‘A small firm might do that but these companies are exploiting their anxiety. Generally, you don’t need to pay for advice. You need to understand your business and fill out a form.’ One significant benefit could be a reduction in professional indemnity insurance premiums. All the schemes are talking to brokers and insurers about what would make the accreditation more attractive to them. Accreditation in particular work areas is not a factor which, on its own, will ‘make or break’ a decision to underwrite, says John Kunzler, senior product manager with PI underwriters Travelers. Even so, it is generally viewed positively, as are quality systems, when taken as part of a complete picture of what a firm is doing. He adds: ‘We are always very interested in hearing about actions that solicitors take to manage risk proactively. However, there is not yet any data of which we are aware which indicates that reaching a specific standard and agreeing to adopt certain processes makes a firm with an accreditation a superior risk over a well-managed firm without such an accreditation.’ He says the CQS may allocate supervisory responsibility more clearly and improve individual competence, which may in turn help prevent process errors. ‘However, from information available in the assigned risks pool, a good number of the conveyancing claims that have occurred over the last few years appear to be caused by organised crime gangs conducting large-scale fraud operations,’ he says. ‘Identity theft of professionals to set up fake law firms also seems to be on the increase. ‘The prevention of fraud is an area upon which effort needs to focus, which could include adding anti-fraud measures and regular review of those measures as part of any scheme.’ Marsh says insurers ‘caught a bad cold’ by not being able to evaluate properly the risk of insuring individual firms. ‘CQS is aimed at the sorts of risks they are anxious about and it will help them evaluate whether the firm is one they want to insure,’ he maintains. ‘One key measure is that anybody within the firm connected with the conveyancing, including the accounts department and all partners, has to be CRB [Criminal Records Bureau] checked.’ The CQS has been welcomed by the Council of Mortgage Lenders (CML). Marsh says it is too early to say whether lenders will start requiring panel firms to have CQS. ‘Lenders have made it clear that they want some “wriggle room” because there will be certain firms with such a high reputation or with whom they already have a special relationship where they will feel it is not necessary,’ he explains. ‘For the others, it will be a case of needing a good reason why they aren’t accredited.’ CML spokesman Bernard Clarke says it would like to see a ‘healthy take-up’ of the scheme. ‘We hope it will provide reassurance and reinforce confidence and that lenders will come to regard it as a prerequisite for admission to their panels.’ With increasing emphasis on accreditation schemes, could they have an impact on diversity? ‘We are very alive to this risk,’ says Linda Lee, ‘which is why we are running equality impact assessments on all our accreditation schemes.’ So, with the profession increasingly focusing on the value of schemes in boosting firms’ appeal, the key now will be to increase public awareness. How soon before a character in a soap is asking if their conveyancer is CQS-accredited? Education and training review The Solicitors Regulation Authority (SRA), the Bar Standards Board (BSB) and the Institute of Legal Executives Professional Standards (IPS) are working together to undertake a fundamental review of the legal education and training requirements of individuals and entities delivering legal services. The review will commence next month and is expected to report by November 2012. The scope of the review is wide ranging, and covers accreditation, alongside education, training, qualifications, and regulation. It will examine regulated and non-regulated legal services. Recommendations will cover the following areas: Some firms seeking recognition of their standards have chosen either ISO9000 or Investors in People (IIP), although some have all three badges to their names. So, how do you choose? Warner says: ‘Lexcel is sector-specific but it has a low profile and lack of client recognition. However, both it and ISO9000 will improve a firm’s procedures. ‘IIP will unlock new opportunities by focusing more on people and culture, which is where lawyers need to focus to create more business agility.’ Jarratt views the other standards as both complementary and as competition. ‘It is not just about collecting badges,’ she says. ‘IIP is very people management-focused but it is a standard which can be applied for by any industry – ours is focused on law firms and in-house legal departments.’ Interest in Lexcel is certainly picking up, says Guise. ‘Interestingly, the foundation of QualitySolicitors’ claim to be “quality” is the insistence that all member firms are Lexcel-accredited or commit to becoming so. In other words, they are piggybacking on the Society’s 13 years of investment in the mark.’ APIL set up its accreditation scheme, which recognises different levels of competency from senior litigator to senior fellow, in 1999. About 30% of its 5,000 members are accredited, along with about 250 firms. ‘We are focusing on increasing public awareness of the scheme so it becomes a recognisable, trusted quality mark,’ says chief executive Denise Kitchener. ‘We are also developing competency standards which will offer benchmarks for firms in the high street.’ Firms use the mark as part of their branding, she says. ‘Consumers are becoming increasingly aware of the need to find specialist help. This is an extra, independent stamp which offers reassurance through rigorous assessment.’ Savvy clientsResolution has also found potential clients becoming more savvy in searching for specialists. Two-thirds of those who search its website for a solicitor go on to search for a specialist in a raft of areas, including adoption, child abduction, small and big money cases, cohabitation and a new category of forced marriage. Some 1,500 of its 5,500 members are accredited. Standards director Jacqui Jackson says the scheme encourages career progression by allowing two years’-qualified practitioners to do part one of the requirements, completing the rest of the assignments once they reach the required minimum of five years’ post-qualified experience. Those fully accredited get a 15% uplift in legal aid rates for exceptional cases that fall outside the fixed fee. Jackson says Resolution is considering creating an accreditation scheme in advocacy skills, but is waiting to see what happens with the scheme being piloted for criminal lawyers. It is also revamping its accreditation scheme for independent financial advisers: ‘We set that up because we found the standard was extremely variable. We didn’t get it quite right so we are hoping to relaunch it with a whole new set of standards next month.’ Resolution also runs a mediation accreditation scheme, with 50 of its 346 trained mediators achieving the badge. Many of the others are working towards it but have yet to undertake sufficient mediations to prepare their portfolio. Mediations are likely to increase substantially following a new emphasis on mediation by the government. The new pre-action protocol will require couples seeking to contest the terms of their separation to attend a mediation awareness session before they can go to court, unless there are domestic violence or child protection issues. Schemes under the microscope What it’s worth A campaign to raise public awareness of the Law Society’s accreditation schemes and their value in helping people choose firms or specialist practitioners in increasingly competitive markets will be launched shortly. There is growing interest within the profession about the schemes. The new Conveyancing Quality Scheme (CQS), which was launched in January, has already attracted more than 660 applications; nearly 1,000 practices are now accredited with Lexcel; and more than 15,000 legal professionals are members of the 11 practice area schemes, which are undergoing a major review (see box). The next step, says Maureen Miller, the Society’s head of membership development, is to raise the schemes’ profile with the public. ‘There was a storyline in Coronation Street last year involving a family dispute, when one of those involved said they needed to employ a family solicitor who was “on the Law Society’s accreditation panel” – that is the kind of recognition you need.’ Representative groups such as the family lawyers organisation Resolution and the Association of Personal Injury Lawyers (APIL) also have accreditation schemes. So, to what extent are firms using such schemes as part of their branding efforts and how important will they become when legal markets open up later in the year? The solicitor brand itself is incredibly strong, stresses Law Society president Linda Lee: ‘However, consumers are becoming more demanding and are focusing on differentiation and specialism. Accreditation schemes provide solicitors with another tool to set themselves apart from other providers and harness the very considerable power of the Law Society brand.’ Grania Langdon-Down is a freelance journalist Pressure to introduce accreditation schemes, Lee says, follows demands from public sector purchasers of legal services, for instance in family law, and market developments, hence the CQS: ‘What they have in common is putting the accredited solicitor into a stronger position to win business.’ ‘Members of the public struggle to compare services,’ says Peter Warner, a specialist in regulation and compliance with Inpractice UK consultancy. ‘So the more apparently relevant boxes a firm can tick, the more attractive they will be to potential customers. ‘Being able to tick the accreditation boxes when tendering for business will also be vital, as new entrants to the legal market won’t be put off by the need to get these accreditations – they will just do it as a routine part of business. ‘However, lawyers with well informed and satisfied clients won’t lose them to another firm just because it has more accreditations.’ Tony Guise, of Guise Solicitors, agrees: ‘Accreditation is not the be all and end all to winning work. However, it goes positively into the mix if one is pitching for institutional work, which should increasingly be targeted by solicitors, as limited added-value work is siphoned off by alternative business structures.’ The CQS has certainly had an encouraging start. Paul Marsh, of Surrey-based Downs Solicitors and past president of the Law Society, is a member of the CQS project board: ‘Some doubting Thomases thought this wouldn’t take off but we have had nearly 700 applications in the first three months.’ So far, 29 firms have been accredited. It is proving a steep learning curve for some – the operations team has found applications that have not been completely filled in, for example, with key information missing. Firms will have to reapply annually. ‘We have designed the scheme so it maintains its quality and standards,’ Marsh explains. When it comes to Lexcel, Francis Dingwall, a partner with professional indemnity and regulatory solicitors Legal Risk, says it is a valuable threshold for good practice management. Beyond that, it is a ‘starting point, not an end point’, he notes, adding: ‘There are firms with Lexcel that are good and bad and it can give a false sense of security. ‘There have been some major mortgage frauds and major negligence at Lexcel-accredited firms. You need to look at the substance, beyond the procedures, and Lexcel does not, in itself, do that for you.’ Lexcel manager Clare Jarratt says work is under way on an updated version, which will take into account the views of stakeholders (such as personal injury insurers, brokers, banks and in-house legal teams) on what would make it more attractive to them. Jarratt says the numbers accredited or applying are encouraging. Accredited firms include a quarter of the top-100 firms, with 40% being sole practitioners to 10-partner firms. The 150 accredited in-house teams range from one to 40 fee-earners. ‘It is not a simple thing for practices to achieve,’ she says. ‘The fact that we have roughly 1,000 practices in England and Wales and a handful overseas, which are being annually assessed for an optional scheme in which they are investing significant time and resources, is a very good achievement. ‘We also have a 95% retention rate, with some firms maintaining the Lexcel badge since the scheme was launched in 1998.’International firms and the international offices of UK firms have been able to seek accreditation since last year. ‘As international markets develop,’ Jarratt says, ‘quality assurance, accreditation and best practice across borders are going to be increasingly hot topics – how do you work with a firm if you have concerns about client service, process or risk management?’ The legal skills, knowledge and experience demanded from different kinds of lawyers, and other emerging roles in diverse, future legal services entities. The education and training system(s) required to deliver high-quality, competitive legal services and high ethical standards of practice for lawyers and legal services entities. Qualification routes that are responsive to emerging needs. An education and training system(s) that is responsive to different career pathways, promotes mobility and transferability between branches of the profession, and enables flexible, ongoing education and training options. The extent to which (if at all) formal regulation of legal education and training should be extended to include groups other than those currently regulated by the SRA, BSB, IPS and other approved regulators. Recommendations specific to the Legal Services Board, Approved Regulators and other relevant bodies from this review supported by an analysis against the better regulation principles. Sole practitioner Martin Elliott was one of the first to be accredited under the Conveyancing Quality Scheme. He plans to use it as an integral part of the branding of his firm Martin Elliott & Co Solicitors, which he set up in Colchester, Essex, 18 years ago, specialising in conveyancing, wills and probate.Already Lexcel-accredited for the last six years, he will be adding the CQS logo to his notepaper and website. ‘I am a great believer in it,’ he says. ‘As a small firm, it helps prove our credibility, which will be even more important when new entrants come into the market later in the year.’He has applied to two lenders’ panels, flagging up the accreditation. ‘It is early days but I hope the scheme will prove a real help for sole practitioners and small firms who have been badly hit by the way lenders are reducing their panels.’It took about a month to prepare the application. He used a consultant to get started with Lexcel but did the CQS application himself. ‘If you aren’t Lexcel-accredited, it might be useful to have help on the practice management side,’ he says. It is too soon to know if it will lead to a reduction in PII premiums, he says, adding: ‘Lexcel didn’t reduce our premium but it meant we were insurable when other small firms were struggling to get quotes.’He is optimistic that the CQS will prove a ‘robust’ scheme. ‘You have to send in client feedback every six months and I think anyone submitting poor feedback will be picked up pretty quickly. Once it gains critical mass, I think it will prove really valuable.’last_img read more

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Employment

first_img Lawson v Serco Ltd [2006] 1 All ER 823 considered; Ministry of Defence v Wallis [2011] All ER (D) 97 (Mar) considered. Decision of Court of Appeal [2010] 4 All ER 335 Reversed. Duncombe and others v Secretary of State for Children, Schools and Families: Supreme Court (Lords Rodger, Mance, Collins, Clarke and Lady Hale): 15 July 2011 European community – contract The instant case related to the unusual employment status of teachers employed by the defendant secretary of state for children, schools and families to work in the European Schools. Those schools were set up to provide a distinctively European education principally for the children of officials and employees of the European communities. The main issue in the appeal was whether the terms of that employment fell foul of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, SI 2002/2034 (the Regulations). On 30 March 2011, the Supreme Court handed down judgment allowing the appeal of the secretary of state on that issue ([2011] All ER (D) 332 (Mar)). The Supreme Court reserved judgment in the cross-appeal of the claimant teachers. The issue in the cross appeal was whether the claimants’ employment was covered by the protection against unfair dismissal conferred by s 94(1) of the Employment Rights Act 1996 (the Act). Consideration was given to Lawson v Serco Ltd ([2006] 1 All ER 823) (Lawson). The cross appeal would be allowed. It was common ground that the basic principle was laid down by the House of Lords in Lawson which gave specific examples of people employed by British employers to work outside Great Britain who would be protected from unfair dismissal. Section 94(1) of the Act contained no geographical limitation. Parliament had repealed the previous exclusion of employees who ordinarily worked outside Great Britain in 1999 and had put nothing in its place. However, it was agreed that s 94(1) of the Act could not apply to all employment anywhere in the world. However, established authority did form another example of an exceptional case where the employment had such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it was right to conclude that parliament had to have intended that employees should enjoy protection from unfair dismissal. That depended on a combination of factors. First, their employer was based in Britain; and not only based there but the government of the United Kingdom. Secondly, they were employed under contracts governed by English law and the international institutions for which they worked. Thirdly, they were employed in international enclaves, having no particular connection with the countries in which they happened to be situated and governed by international agreements between participating states. Fourthly, it would be anomalous if a teacher who happened to be employed by the British government to work in the European school in England was to enjoy different protection from the teachers who happened to be employed to work in the same sort of school in other countries (see [5], [16] of the judgment). In the instant case, it was common ground that the claimants’ employment did not fall within either of the specific examples given in Lawson. However, the employment had such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it was right to conclude that parliament had intended that the employees should enjoy protection from unfair dismissal. To admit the instant case as another example of the principle laid down in Lawson was scarcely to extend those exceptional cases very far or to offend against the sovereignty and equality of nations (see [3], [16]-[17] of the judgment). Nigel Giffin QC, Katherine Eddy and Simon Henthorn (instructed by Reynolds Porter Chamberlin LLP) for the claimants. Jonathan Crow QC and Maya Lester (instructed by the Treasury Solicitor) for the Secretary of State.last_img read more

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Human rights

first_img Carnduff v Rock [2001] All ER (D) 151 (May) considered; Kennedy v United Kingdom (Application No 26839/05) [2010] All ER (D) 224 (May) considered. Decision of Court of Appeal [2010] All ER (D) 08 (May) Reversed. The employee was employed as an immigration officer by the Home Office. In February 2003, he received the necessary security clearance. In August 2006, he was suspended from duty on basic pay, while consideration was given to the withdrawal of his security clearance. In December, his clearance was withdrawn. His internal appeal against that decision was dismissed, and his further appeal to the Security Vetting Appeals Panel was unsuccessful. The background for those decision was the arrest of the employee’s brother and cousin during an investigation into a suspected plot to mount a terrorist attack on transatlantic flights. The employee’s cousin was convicted in 2008 of various offences in relation to that plot. No information suggested that the employee himself had been involved in the terrorism plot. The employee brought a complaint before the employment tribunal alleging that his security clearance as an immigration officer had been withdrawn in circumstances involving direct or indirect discrimination on grounds of race and/or religion, and that that was contrary to the Race Relations Act 1976 (the 1976 Act) and the Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660 (the 2003 Regulations). He stated at the outset that he had been advised that his suspension and the withdrawal of his security clearance had been because of his perceived association with certain relatives or associates of relatives suspected of association with terrorist activities and the risk of their attempting to exert influence on him to abuse his position. He denied any such association or risk. In July 2007, he provided particulars which alleged, inter alia, that the Home Office had relied upon stereotypical assumptions about him and/or Muslims and/or individuals of Pakistani origin such as susceptibility to undue influence, coercion or ‘brainwashing’ and had indirectly discriminatory security policies, procedures and methods of investigation. The Home Office contended that there had been no such discrimination and that the decisions taken in relation to the respondent had been taken for the purposes of safeguarding national security. Rule 54(2) of Sch 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861 (the 2004 Regulations) provided for the adoption of a closed material procedure if the tribunal so ordered. Schedule 2 provided for the use of special advocates, whose role was to represent a claimant’s interests so far as possible in relation to the aspects closed to him and his representatives. The tribunal made an order for a closed material procedure, directing that the employee and his representatives should be excluded from proceedings when closed evidence or documents were being considered. The employee’s challenge to the tribunal’s order for a closed material procedure was dismissed by the Employment Appeal Tribunal ([2009] All ER (D) 100 (Nov)), and the Court of Appeal, but it was declared that art 6 of the European Convention on Human Rights ‘requires [the appellant] to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively’, even if that put the Home Office ‘in the invidious position of having to make difficult decisions about disclosure and whether or how a claim is to be defended’. The Home office appealed to the Supreme Court against the declaration and the respondent cross-appealed against the conclusion that a closed material procedure was permissible. The employee contended that r 54(2) of the 2004 Regulations was contrary to European law and/or the European Convention on Human Rights. He submitted that it was in conflict with European Legal Principles governing discrimination, contained in the European Treaties and in the Race and Employment Directives, to which the 1996 Act, the Race Relations Act 1976 and the Employment Equality Regulations all had to be read, at least as far as possible, as being subject. The appeal would be allowed (Lord Kerr dissenting). The cross-appeal would be dismissed. (1) The demands of national security might necessitate and under European convention law justify a system for handling and determining complaints under which an applicant was, for reasons of national security, unable to know the secret material by reference to which his or her complaint was determined. The critical questions under the convention were whether the system was necessary and whether it contained sufficient safeguards. However, subject to satisfactory answers on those questions, national security considerations might justify a closed material procedure, closed evidence and, furthermore, a blanket decision leaving the precise basis of the determination unclear (see [36] of the judgment). The legitimacy of closed hearings and of the use of a special advocate were matters of procedural law. Procedure was primarily a matter for national law. It was, however, a basic principle of European Union law that national law should provide effective legal protection, by establishing a system of legal remedies and procedures which ensured respect for the relevant right. The question was whether the closed material procedure authorised by United Kingdom law provided effective legal protection, by establishing a system of legal remedies and procedures to ensure respect for the relevant rights conferred by the 1976 Act and the 2003 Regulations in implementation of the United Kingdom’s obligations under the two directives. The principles of European law which arose for consideration in the instant case were clear. In particular, there had to be effective legal protection in respect of the rights not be discriminated against which the respondent had invoked, and, so far as guidance was necessary, it was to be found for the relevant purposes in the European Convention on Human Rights and the case law of the European Court of Rights. The principles which the European Court of Human Rights would apply in the area of national security had been confirmed by the decision in Kennedy v United Kingdom ([2010] All ER (D) 224 (May)). In the circumstances, the use of a closed material procedure before the tribunal had been lawful (see [15], [18], [61] of the judgment). Accordingly, the cross appeal would be dismissed (see [62] of the judgment). Robin Allen QC and Paul Troop (instructed by Russell Jones & Walker) Solicitors for the employee. James Eadie QC and Catherine Callaghan (instructed by the Treasury Solicitor) for the Home Office. Kennedy v United Kingdom (Application No 26839/05) [2010] All ER (D) 224 (May) applied; Esbester v United Kingdom (Application 18601/91) 18 EHRR CD 72 considered; Leander v Sweden (Application 9248/81) 9 EHRR 433 considered; Unibet (London) Ltd v Justitiekanslern: C-432/05 [2007] All ER (D) 217 (Mar) applied. (2) The question was whether there was in the convention, as explained by the European Court of Human Rights, any absolute requirement that a claimant should be able to see the allegations against him in sufficient detail to give instructions to his legal team to enable the allegations to be challenged effectively. Clearly, it was a very significant inroad into conventional judicial procedure to hold a closed material procedure admissible, if it would lead to a claimant not knowing of such allegations in such detail. It was an inroad which should only ever be contemplated or permitted by a court, if satisfied after inspection and full consideration of the relevant material as well as after hearing the submissions of the special advocate, that it was essential in the particular case. However, in light of the clear line of jurisprudence culminating in the decision in Kennedy v United Kingdom ([2010] All ER (D) 224 (May)), to say that it was not possible under the convention as interpreted by the Court in Strasbourg was impossible (see [67]-[69] of the judgment). Accordingly, the appeal would be allowed (see [69] of the judgment). center_img Home Office v Tariq: Supreme Court (Lords Phillips P, Hope DP, Rodger, Brown, Mance, Kerr, Clarke, Dyson and Lady Hale): 13 July 2011 Right to a fair hearing – Employment proceedingslast_img read more

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Needless long hours

first_img Kieran Fielding, Pearson Fielding, Liverpool I read the comments of both Nick Herbert and in relation to magistrates sitting at unsocial times and hours. I have little respect for Mr Herbert’s opinion that ‘swift justice is currently the exception…’. Is he unaware of the Criminal Justice: Simple, Speedy Summary (CJSSS) process? As an advocate in the magistrates’ court, I know that many cases are dealt with on their first appearance. I am aware of the reluctance of magistrates to adjourn CJSSS cases. In Merseyside we have also had a scheme piloting early guilty pleas in the Crown court. Defendants are often sentenced within two weeks of a committal to the Crown court. It is difficult to see how these magistrates’ courts sitting outside normal hours would have any impact upon the speed that cases are dealt with. I am not sure that I can respect Mr Thornhill’s view that the main concern here would be costs. Solicitors would end up working longer hours, probably for less money. Perhaps I have misjudged both gentlemen and it is in their minds that the legal aid fund would pay enhanced rates for those of us who have the misfortune to appear in the late-night and weekend sittings. Finally, in our area we have seen a drop in the number of cases appearing in court due to a combination of falling police numbers and the reluctance of the Crown Prosecution Service to charge. This begs the question, why would we need such courts?last_img read more

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