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The Times

Friday, March 31 2017

Frances Gibb and Jonathan Ames bring this morning’s must-read of all things legal, including news, comment and gossip.


  • Court challenges ahead as EU law ‘supremacy ends'
  • Truss moots independent scrutiny of injuries discount rate
  • Call for crackdown on retirement home swindles
  • Judges dismiss challenge to assisted dying ban
  • Complaints chief to shed shares in legal businesses
  • Employee recognition battle moves to Scottish tribunal
  • Comment: Bail reform is a missed opportunity
  • The Churn: Macur takes over as senior presiding judge
  • Blue Bag Diary: Double bubble at Slaughter and May

Plus, see our plans for Brief Premium and archive of articles so far. Tweet us @TimesLaw with your views.

Story of the Day

Court challenges ahead as EU law ‘supremacy ends'

Controversial European laws on border controls, workers’ rights and surveillance could face challenge in the courts under plans to end the decades-old supremacy of EU law.

Tens of thousands of EU regulations and statutory instruments will be transferred into UK law under the biggest legislative exercise of its kind unveiled by ministers yesterday.

Ministers plan to “copy and paste” the entire corpus of EU law and end the decades-old supremacy of the Court of Justice of the European Union (CJEU, pictured) to make, as one MP put it, the “UK Supreme Court supreme”.

Unpopular EU law

Court challenges to some of the most unpopular pieces of EU legislation were immediately predicted as the mass of EU legislation shifts onto the UK statute book in the lead-up to Britain’s departure from the EU. The volume could require senior judges brought out of retirement to help ease the workload on the Supreme Court if there is significant litigation, Lord Neuberger, its president, has suggested.

The Supreme Court will have power to ignore European court of justice rulings once Brexit is finalised in two years’ time, although justices will still take its rulings into account.

At the same time, the Charter of Fundamental Rights which sets out human rights principles to be applied by the Luxembourg-based court will be ditched. However as they set out the plans in a white paper yesterday, ministers made clear that scrapping the charter would “not affect the substantive rights that individuals already benefit from in the UK” as many of those rights exist in other laws such as the Human Rights Act.

Britain supreme

Dominic Raab, the pro-Brexit Conservative MP and former partner at Linklaters, the City of London magic circle law firm, said: “The government’s proposals will finally make the British Supreme Court supreme, and remove the authority of the European Court of Justice, which is a crucial part of taking back democratic control in this country.”

He added that removal of the charter would stop “yet more skewed human rights obligations from being imposed on the UK via the European Court in Luxembourg, which has weakened our ability both to stop dangerous criminals entering the UK and remove them once they offend here.”

Controversial rulings from the CJEU in recent years touch on the working time directive, the right to be forgotten, a ruling on data collection said to undermine the Investigatory Powers Act, and the rights of terrorists seeking to enter the UK to be told the case against them.

Not bound

Lord Pannick, QC, a constitutional law expert at Blackstone Chambers in London, said that just this week Supreme Court justices had made clear that judgments given by the court of justice deriving from EU law were binding until exit day.

However, he said: “The government is very likely to find that when the bill comes to the House of Lords, greater clarity is required in the interests of legal certainty.”

The UK’s two most senior judges, Lord Neuberger and Baroness Hale, said this week that they will not be bound by Luxembourg once Brexit is finalised. Lord Neuberger told the Lords constitution committee on Wednesday: “It would be quite inappropriate for us to be bound in any way by decisions [of the court] afterwards.”

News Round Up
Truss moots independent scrutiny of injuries discount rate

An independent body could oversee future changes to the discount rate applied to damages awards for catastrophic injuries, the lord chancellor said yesterday.

Liz Truss (pictured) launched a consultation paper on the controversial rate, which she recently slashed to minus 0.75 per cent from 2.5 per cent, triggering protests from insurance companies and the health service.

The Ministry of Justice stressed that the review would not consider overturning Truss’s move, made last month. However, in addition to assessing whether an independent body should set the rate, it will consider whether the calculation methodology was appropriate and whether more frequent reviews of the rate are needed.

The review will also look at whether periodical rather than lump-sum payments would be a more efficient way of compensating victims.

Claimant lawyers cautiously welcomed Truss’s review, while reiterating support for the February rate cut.

“It was very important that the rate was reduced because people with serious, life-changing injuries were not receiving the compensation they desperately need,” said Neil Sugarman, the president of the Association of Personal Injury Lawyers and a partner at GLP Solicitors in Manchester.

He added: “We are always prepared to be involved in constructive debate and so we will be responding to the consultation.”

Nigel Teasdale, the president of the Forum of Insurance Lawyers, which consists of lawyers acting for defendant insurers, said his organisation “will be active in helping the MoJ identify a calculation methodology which is fair to victims, legally robust and which properly reflects long-term financial investment patterns, so that we achieve a formula which is sustainable and not disproportionately burdensome on any party.”

Call for crackdown on retirement home swindles

Elderly people who have moved into leasehold retirement properties are at risk of being hit by unfair service charge fees of up to tens of thousands of pounds, a report warns today.

The charges are levied by most developers of the 160,000 retirement properties in England and Wales with the aim of making retirement flats affordable by deferring some of the running costs until the property is sold.

However, there is real potential for abuse with the so-called “event” or “transfer” fees, the Law Commission, the independent advisory body, will say later today.

Owners and their families are sometimes not told about the fees until after they have agreed to buy the property, the commission argues. The fees can also be charged when the owner is not expecting it, such as when a spouse moves into the property or when the owner moves into a nursing home and sub-lets the property.

With such fees being anywhere up to 30 per cent of the total property price, they can run into the tens of thousands of pounds. Some buyers are not clear about what services to expect for the money – a concern that was raised by the Office of Fair Trading in 2013.

“In the worst cases,” said the law commissioner Stephen Lewis, “a few unscrupulous landlords are getting away with very high hidden fees buried deep in the small print of a long and complicated lease.”

Lewis said the commission urged the government “to crack down on rogue landlords by regulating the sector and making sure that before consumers sign on the dotted line, they have already been told exactly what’s being provided for their money.”

Judges dismiss challenge to assisted dying ban

A man with terminal motor neurone disease yesterday lost his High Court attempt to challenge the law on assisted dying so that his life can be ended at a time of his choosing.

Noel Conway, 67, sought permission to bring a judicial review of the law so that terminally ill adults who meet certain specified conditions can make their own decisions about ending their lives.

Conway, a retired college lecturer from Shrewsbury, was diagnosed in November 2014 and is not expected to live beyond the next 12 months. His counsel, Richard Gordon, QC, of Brick Court Chambers in the Temple, said that when he had less than six months to live and while he retained the mental capacity to make the decision “he would wish to be able to enlist assistance to bring about a peaceful and dignified death”.

Conway was seeking a declaration that the Suicide Act 1961, under which assisted dying is prohibited, is incompatible with article 8 of the human rights act, which protects the right to a private and family life, and article 14, which protects people from discrimination. His legal team argued that the current position of the criminal law violated his human rights.

At present there is a blanket prohibition on providing a person with assistance to die.

Yogi Amin, a partner at the law firm Irwin Mitchell, which acted for Conway, said: “The world has changed phenomenally in the past few decades with many medical advances, but the law on assisted dying for those who are terminally ill hasn’t changed for more than 50 years.”

Complaints chief to shed shares in legal businesses

Regulators have attempted to snuff out growing suggestions that the new head of the body that deals with complaints about lawyers is dogged by conflicts of interest.

Wanda Goldwag – who was approved by MPs earlier this week as the chairwoman of the Office for Legal Complaints (OLC) – confirmed that she will be disposing of her shareholdings in two legal services companies “as soon as it is practical”.

It has emerged that Goldwag – who currently chairs the body that oversees self-regulation for gambling – is a shareholder in My Home Move and Kings Court Trust, which are both alternative business structure legal service providers.

Goldwag told The Brief through a spokeswoman that she would not be commenting directly on the row. Instead she left it to the Legal Services Board, the organisation that oversees all legal profession regulators in England and Wales, to issue a statement.

Neither the board nor the OLC would elaborate on a time scale for Goldwag to dispose of the shares The new legal complaints chief also declined to comment on whether she should have disposed of the shares before taking up her new role, which she is scheduled to do on April 1.

Employee recognition battle moves to Scottish tribunal

Foster carers could soon be awarded holiday pay, maternity leave and the national minimum wage in a landmark case to be heard by a Scottish court, reports Gurpreet Narwan.

An employment tribunal will determine whether two foster carers from Glasgow have the right to be classed as employees or workers rather than as self-employed. The decision could secure a range of benefits for carers across the country, including whistleblowing protection and the right to representation at disciplinary hearings.

It is the latest in a series of challenges on both sides of the border that attempt to force businesses and public bodies to recognise that their workers are employees and not self-employed contractors.

The current claim involves James and Christine Johnstone, 54, who have been fostering children in the city for more than six years. They specialise in caring for children with extreme behavioural problems, which is more onerous than the work undertaken by traditional foster carers.

The claimants argue that those obligations amounted to a contract of employment.

There are more than 4,450 foster families in Scotland. Carers are entitled to an allowance per child but there is no statutory minimum in Scotland. A quarter of councils in Scotland pay less than the basic minimum rate paid in England and Northern Ireland of £119 a week.

A similar case involving Norfolk county council seven years ago held that carers are not workers and therefore do not have the right to be accompanied at disciplinary hearings. The Independent Workers Union of Great Britain, who are backing the latest case, hope that it will considered differently in Scotland.

“The courts in England and Wales have failed to deal with this issue appropriately,” said Jason Moyer-Lee, IWGB general secretary, “but in Scotland the issue of foster care worker employment status is yet to be determined and determining it is precisely what we intend to do with this case.”

A spokesperson for Glasgow city council said it would be “inappropriate” to comment on the case while it was before the employment tribunal.

In Brief

Watchdog shuts down law firm after £2.1m losses – Law Gazette

City elite reduce partnership rounds – Legal Business

German minister calls for ‘Islam law’ to regulate Muslim communities – Politico


Bail reform is a missed opportunity Jenny Wiltshire

Controversial government plans to reform police bail are set to come into force across the UK on April 3 and they initially appear to be a victory for an eclectic group of celebrities, MPs and civil rights activists who have campaigned against unchecked powers.

Under the Policing and Crime Act, the police will now have to release a suspect without bail unless a set of criteria are met and pre-charge bail will be subject to an extendable time limit of 28 days.

But the reality is that the vast majority of suspects are not on police bail. Many are not even arrested.

In a time of austerity, this reform is a zero-sum game; suspects on police bail will benefit at the expense of those who are not and an opportunity has been missed to make the police properly accountable to suspects in long-running investigations.

The reformed regime includes numerous opportunities for solicitors to receive useful information from the police to keep suspects in the loop. It also builds in valuable accountability throughout the process as all decisions must be justified according to a consistent rubric.

That may seem like a victory for suspects as fewer people will be subject to unreasonable pre-charge bail conditions. Unfortunately the reforms may be a little too effective.

In the absence of pressing reasons for bail, the police will likely prefer to release suspects without bail, or allow bail to lapse, instead of jumping the new procedural hurdles. The unintended but entirely foreseeable consequence of this is that the police will be forced to give priority to cases where bail conditions are essential.

There is already a large group of suspects who are not on bail and who have no idea where they stand. This group, and the length of time they wait, can only grow as a result of the new rules.

Many already wait for longer than a year after their nightmare started and they were told they were being investigated. While their lives are in limbo, the police are under no obligation to provide updates on what they are doing or when the investigation might end.

Nor is there any duty to inform a suspect that an investigation has ended or even formally to clear a suspect.

A code of practice is needed – one that could establish time limits and a right to complain if investigations drag on unreasonably. For the first time, it could create a duty of disclosure by police of reasons for the time they are taking, which should keep them focused.

The Financial Conduct Authority recently announced that it will begin sharing regular updates with the subjects of its investigations in recognition of the uncertainty they cause. It cannot be that suspects of criminal investigations should be left in a worse situation than those subject to an FCA regulatory investigation and the police should follow the FCA’s lead.

Jenny Wiltshire is a partner at Hickman & Rose, a London law firm

Tweet of the Day

Hahaha. Motion in lawsuit against @BuzzFeedNews has amazing title.

Keith Lee @associatesmind

Blue Bag

Double bubble partnership at Slaughter and May

The Brief recently reported on the US firm that issued a statement that effectively highlighted that it had not promoted any of its senior associates in London to the partnership table. So it is only fair that we report on an English firm that was so chuffed when it made one of its lawyers a partner that it did it twice.

And this isn’t just any firm but, as reported by the gossip site RollonFriday none other than Slaughter and May, the bluest of blue bloods in the City of London.

According to the site, Natalie Yeung, who the firm said recently has just been promoted to the partnership, is not that new. Indeed, she was “made up” (as they say in the Cosa Nostra) in 2014, a point that the firm made at the time in a statement to all media.

But now a firm spokesman has told RoF that Yeung “was previously a Hong Kong partner and now becomes a worldwide partner”, confirming something that observers have suspected for years – that the highly secretive Slaughter and May runs a two-tiered partnership with an emphasis in status on the mother ship in the Square Mile.

The law’s trickle-down theory

In a totally unrelated yet still highly entertaining example of how status in the legal profession works in practice, we change gears and move to a London tribunal hearing.

An esteemed QC was making submissions when she was interrupted by the chairman, who raised a niggling question to which the silk did not have an answer.
“I shall have to refer behind me for clarification on that point, sir,” said leading counsel, coughing loudly and shooting a very quick glance at the bank of three solicitors behind her.

The partner flapped a bit and then nudged the senior associate, who kicked the junior associate, who quickly spun round in his chair to face a third row populated by what appeared to be rabbits in headlights but must have been trainees.

After a muffled but forcefully barked instruction, one of the trainees bounced from her chair and scuttled for the door – doubtless to be sick in the lavatories before wading through piles of lever arch files for the piece of information the QC should have had all along.

The Churn

A run down of the big partner and team moves this week

Macur takes over as senior presiding judge

Lady Justice Macur’s appointment as senior presiding judge has been brought forward by more than six months after her predecessor took over the role as Investigatory Powers Commissioner.

Lord Justice Fulford was set to sit as senior presiding judge until the end of this year, but his move to snooping watchdog has left the post open.

Lady Justice Macur – who was appointed as Lord Justice Fulford’s deputy in January 2016 – will now move up a notch as of April 3, officials announced on Wednesday.

Julia Macur was called to the Bar at Lincoln’s Inn in 1979 and promoted to Queen’s Counsel in 1998. She joined the bench as a recorder a year later and was moved up to the family division of the High Court in 2005.

She was appointed as presiding judge on the Midland Circuit two years later and to the court of appeal in 2013.

Meanwhile, the Independent Inquiry into Child Sexual Abuse yesterday appointed Mark Sutton, QC, to conduct a review into its own safeguarding and dignity at work procedures.

The move comes after Ben Emmerson, QC, of Matrix Chambers in Gray’s Inn, left his role as lead counsel to the inquiry amid allegation that he had sexually assaulted a woman in a lift. Emmerson was cleared of the allegation in an internal investigation conducted by his chambers.

Sutton is an employment specialist at Old Square Chambers in London.

Closing Statement

A time-honoured approach

There was a man who regularly sat in the public gallery at Clerkenwell magistrates’ court in London and audibly announced the sentence on defendants before the stipes did, recalls James Morton.

“That’ll be three months,” or “That’ll be a fine,” the man would announce – and he was rarely wrong.

On the subject of time, the seemingly austere but in fact rather genial Mark Rohmer, one of the stipes at Clerkenwell, was walking through Argyle Square – which years ago was a well-known hangout for the local working girls – to King’s Cross station. One the women approached him with the time-honoured phrase: “Have you got the time, sir?”

“If you don’t go away it will be a month tomorrow,” he replied.

James Morton is a former criminal law solicitor and now author