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The Times

Wednesday, November 9 2016

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


  • Falconer calls for lord chancellor to go
  • Judges sue government after pensions loss
  • Latest challenge to gig economy with Deliveroo claim
  • EU will 'put politics before economics' in Brexit talks
  • Bar leaders call on South Africa not to ditch international court
  • Comment: Attacking judges damages democracy
  • Blue Bag dairy: Law firm Mr Nice Guys
  • More Blue Bag: World’s top court architecture on display

Plus … new Brief Premium

  • Employment law focus: Workers’ rights post-Uber – the new revolution
  • Pensions law focus: Age concerns

Tweet us @TimesLaw with your views.

Story of the Day

Falconer calls for lord chancellor to be replaced over Brexit row

A former Labour lord chancellor has called for the justice secretary to be replaced for her handling of the public criticism of three senior judges after they ruled that MPs should have a vote on how the UK leaves the EU.

In a letter to The Times today, Lord Falconer, QC (pictured), said that Liz Truss must be removed from post so that judicial independence can be protected, "The striking failure is the silence of the lord chancellor," he said referring to what many perceive to be Truss's lukewarm comments in the wake of the row. "It signals to the judges that they have lost their constitutional protector. Until she is replaced by someone willing and brace enough to do the job the judges should rightly fear for their independence."

Elsewhere, MPs on the justice committee also piled into the row. Bob Neill, the committee’s Conservative barrister chairman, said that the committee “condemns any personal attacks on members of the judiciary”.

In a statement yesterday, Neill said that the committee’s view was that “free debate should not be couched in terms of abuse of individuals who, by virtue of the oath they have taken and the role they discharge, cannot defend themselves publicly. It is quite wrong to vilify or attack judges or attempt to intimidate or undermine them.

“The right of the press to speak freely must be exercised responsibly; it is not a licence to attack judges in a personal manner or seek to undermine the constitutional principle of judicial independence, which is absolute.”

Meanwhile, an independent legal affairs think tank has invited the lord chancellor to deliver a public lecture provisionally titled: “What is the rule of law? What does it require?”

The Bingham Centre explained the move, saying that “at times of tension and disagreement – the time of Brexit – we cannot rely on rhetoric. We need concrete points of reference. As Lord Bingham emphasised a decade ago, the rule of law is clear and practical. One of its central pillars is judicial independence. The substance of the rule of law is too seldom articulated in public debate.”

See comment below

News Round Up
Judges sue government after pensions loss

Six High Court judges are taking unprecedented legal action against the lord chancellor, alleging that she has unlawfully discriminated against them on age grounds.

One of the judges is also accusing Liz Truss of discriminating against her because of her sex while another of “Asian British ethnic origin” accuses her of race discrimination.

The claims – to come before an employment tribunal on November 14 – arise from a revised judicial pension scheme imposed on judges last year, which hugely reduced their benefits. All the claims relate to reduced benefits the judges can expect to receive under a new judicial pension scheme.

A two-week hearing has been arranged before a tribunal judge who is not affected by the pension arrangements although there could be appeals before other judges.

The judges claim that their conditions of service “reflect the established constitutional principle, dating back to (at least) the Act of Settlement 1701 that neither the legislature nor the executive should subject judges to a reduction in pay (including deferred pay such as pensions) during the term of their offices, as has occurred in the case of the claimants”.

They say this principle is “designed to protect the independence of the judiciary, a key element of the rule of law”.

The six High Court judges are Sir Nicholas Mostyn, 59, Sir Roderick Newton, 58, Sir Philip Moor, 57, Dame Lucy Theis, 55, Sir Richard Arnold, 55 and Sir Rabinder Singh, 52. Their grounds of claim say that each of the six was automatically enrolled in a judicial pension scheme on appointment. The new pension scheme, introduced in 2015, was “substantially less beneficial”.

Union in latest challenge to gig economy with Deliveroo claim

A group of cycle delivery contractors is attempting to force one of the UK’s fastest-growing companies to grant collective pay bargaining rights in the latest challenge to the burgeoning “gig economy”.

Union officials launched the first step against Deliveroo yesterday in a case that is likely to end in a hearing before the central arbitration committee, the government body that oversees disputes over union recognition and collective bargaining.

Executives at Deliveroo – which has annual revenues of £130 million – have ten days to respond to a written request from the union for recognition. If the case ultimately goes to the arbitration committee, the tribunal could force the company to recognise a union for collective bargaining.

The case comes after a landmark employment tribunal ruling last month, which found that drivers for the online taxi company Uber should be classed as workers with employment rights.

The Deliveroo case is being led by the Independent Workers Union of Great Britain, which is representing a group of cycle delivery riders in Camden, north London. “If we win the case it means that the committee will have declared that Deliveroo guys are workers and not independent contractors,” Jason Moyer-Lee, the union’s general secretary, said.

He said that the Deliveroo challenge was similar to the Uber case in that a small number of individuals had been put forward as test cases. “This case strikes at the very basis upon which the so-called gig economy rests,” Moyer-Lee said. “The companies say these workers are all independent businesspeople who don’t need employment rights and don’t need to unionise, we say they are workers hired by big companies and need to be treated as such.”

Deliveroo – which describes itself as an online food delivery company – was launched in the UK two years ago and has since expanded across Europe and into Dubai and Hong Kong.

Lawyers pointed out that by taking the challenge to the committee, Deliveroo was following a less conventional route than the decision by Uber drivers to take their case to the employment tribunal. “A trade union can seek and obtain recognition to conduct collective bargaining on behalf of a group of workers but not a group of self-employed contractors,” Lee Rogers, an employment law specialist at the law firm Weightmans, said.

Rogers predicted that it was “extremely unlikely” that Deliveroo would accede to the union’s request “because if it were to do so it would effectively be accepting that its drivers are workers who have the protection of various employment rights, including the right to national minimum wage and holiday pay, rather than self-employed contractors who do not”.

If Deliveroo rejects the union’s request, the case will go to the arbitration committee and the case could take several months to be heard. A spokesman for Deliveroo confirmed that the riders are classed as independent contractors and that in the wake of the Uber ruling the company aimed “to get them recognised in law as being workers … this means they would obtain paid holiday, minimum wage, trade union rights, and more”.

EU will 'put politics before economics' in Brexit talks

EU leaders will cut a tough deal with the UK over Brexit because both sides are motivated by politics and not economics, a lawyer trade expert told The Brief yesterday.

Miriam Gonzalez, head of the EU trade and government affairs team at the London office of Dechert, the US law firm, said that the “primary interest” in Brussels and the EU capitals would be “keeping the rest of the union together”.

Gonzalez, a former Brussels trade expert, called on the British government not to limit its legal advice on Brexit to a narrow group of City of London law firms. She said that Square Mile practices had over the years failed to build sufficient expertise in trade matters and that Whitehall needed to cast a wider net.

“Part of the problem with law firms and trade as a practice area is that there are very few people with trade-specific experience,” said Gonzalez, who is also the wife of Nick Clegg, the former leader of the Liberal Democrats.

“What happens is that a corporate lawyer comes across a sanctions issue and that person starts doing a bit of trade law. But trade is a tough issue to deal with unless you have a lot muscle to deal with it. The government needs to take a combination of knowledge from UK and US law firms.”

Gonzalez said that the issue was even more acute because “striking bilateral trade agreements is going to be more difficult for the UK government because around the world we are going through a period of protectionism. This is not something that has just started happening – it has been happening for a while.”

Bar leaders call on South Africa not to ditch international court

Bar leaders in the UK and Hong Kong have turned up the pressure on South Africa over its decision to withdraw from the International Criminal Court.

In an open letter to President Zuma, the heads of four Bar associations call for the Pretoria government to reconsider its decision taken last month. South Africa’s foreign minister, Maite Nkoana-Mashabane, announced the move after her government refused to arrest Sudan’s president, Omar al-Bashir, on war crimes allegations.

The heads of the Bars of England and Wales, Scotland, Northern Ireland and Hong Kong wrote to Zuma to urge him to reconsider the decision. “We salute South Africa’s proud history of abolishing apartheid,” the Bar leaders said, “and the subsequent establishment of a justice system which eschews impunity.

“We suggest that South Africa has a leadership role in Africa and beyond. Withdrawal from the ICC therefore risks setting a very poor precedent to other nations.”

A spokesman for the Bar Council of England and Wales said that the four associations wrote a joint letter because they were “particularly active” with ICC cases.

In Brief

Goddard refuses to give evidence to MPs on child sex abuse inquiry – The Times

Operation Midland inquiry riddled with blunders, former judge finds – The Times

City law firm develops AI software to advise clients on Brexit issues – The Lawyer

‘Long overdue’ cohabitation laws urgently needed – Solicitors Journal


Attacking judges damages democracy Robert Bourns

An independent judiciary underpins Britain’s democracy and the rule of law, so it was disturbing to see the vitriol directed at High Court judges after the decision on Article 50 last week.

Vilification is simply not acceptable. Nor is a failure to defend the judges. So I was heartened to hear the attorney-general, Jeremy Wright, QC, backing the right of claimants to bring their case and judges to make their ruling, even if he disagrees with the outcome.

Our legal system, evolved over many centuries, is fundamental to ensuring that power is not abused. And last week, three judges sitting in the High Court made a carefully considered judgment. It was not political, as some claim. It looked at the law. Article 50 exists so any member state can leave the EU if it chooses, and must be triggered in line with that member state’s constitutional processes.

The judges ruled that it is for parliament, not the executive, to take that step; the government disagrees and will appeal at the Supreme Court.

That judgment should be greeted with respect. It will be based on the law and those involved in the decision should not be subjected to intemperate reporting and apparently politically motivated attack.

Solicitors and barristers are required to act for the vulnerable or unpopular, judges to adjudicate and, yes, sometimes these rulings and the cases themselves may offend the popular view.

Compare how parts of the popular press treated the Hillsborough disaster with what we know now after the inquiry this year. The righting of that injustice came about thanks to independent lawyers working doggedly on their clients’ behalf, subject always to the rule of law.

Our justice system is there to provide guidance on legal and constitutional questions. The Supreme Court will make its decision, and subject to that government and/or parliament will make its. That is how it should work.

The unedifying clamour, led by some senior politicians, threatening to interfere with future appointments processes is damaging and dangerous.‎

Populism is not to be equated with constitutional democracy and the rule of law is disparaged and undermined to the risk of us all – particularly the vulnerable, weak or those whose cause may be unpopular.

You don’t have to look far to find societies where the rule of law has been subverted, where the independence of the judiciary cannot be relied on and the ability of lawyers to pursue their clients’ cases without fear of physical violence or death has evaporated.
The referendum result last summer was a vote to leave the EU. It decided nothing else. We are lucky to have strong institutions that operate to counterbalance one another and prevent abuse of power.

The judges attacked after the ruling last week may have broad shoulders, but we should think about the effect that inflammatory reckless language has on others, on the health of our democracy and on all that underpins it.

Robert Bourns is president of the Law Society of England and Wales

Tweet of the Day

Yes, and why stop at judges? So sick of unelected doctors deciding what's wrong with me. Let's put it to a vote.…

J.K. Rowling @jk_rowling

Blue Bag

Law firm Mr Nice Guys

Partners at nine large commercial law firms have been named as being the most friendly towards the hordes of galley slaves they employ.

The website Legal Cheek surveyed more than 1,500 trainees and young associates in an attempt to discover which of the big players had “the most approachable” partners. No surprises when none of the City of London’s “magic circle” elite featured in the highest category.

Those that did win A* ratings were from the mid-tier in the Square Mile or based outside London. In no particular order – and bearing in mind that the science involved in the survey was probably something of a moveable feast – the most approachable partners are at: RPC, Shearman & Sterling, Baker & McKenzie, Trowers & Hamlins, Osborne Clarke, Fieldfisher, Travers Smith, Bristows and TLT.

World’s top court architecture on display

Ever wondered what the Albanian supreme court building looks like? Wonder no more. The UK Supreme Court has just opened a temporary exhibition of photographs, designs and models of counterparts from around the world. Included along with the Albanian court will be depictions of the top courts in South Africa, the Netherlands and Singapore.

The architect Elsie Owusu OBE, a trustee of the Supreme Court Arts Trust, and lead designer and curator of the exhibition, said: “Seeing such diverse ways of handling the complex challenge of court architecture is inspiring. This exhibition gives remarkable insights into collaborations between judges, architects, interior designers and artists to create places and spaces which are secure and comfortable, and functional and accessible to the public.”

Sir Anthony Salz, the trust’s chairman, added that the exhibition aimed to “encourage visitors to think about how the built environment of courts helps reflect, promote and influence the work that goes on inside them – as well as shine a spotlight on the exciting work being undertaken in this area by architects around the world”.

The free exhibition runs until December 16.

Closing Statement

Getting to the bottom of the matter

As law is made and practised in words, the art of language is especially important to lawyers. Good syntax – the arrangement of words to create clear sentences – is a key skill.

Poor syntax can stir emotion in unlikely people. In 1929, Rayner Goddard, the lord chief justice from 1946 to 1958, stood for election as an unofficial Conservative candidate under the slogan “Purity Goddard”, and later gained a reputation as a severe judge.

But the sternness of Mr Justice Goddard was tested in the 1930s when presiding in a negligence case in which a woman had sustained a jaw injury after falling from an omnibus. Goddard struggled to maintain his composure when counsel declared that after the accident his client had not, for a long time, been able “to bite her bottom with her top teeth”.

More recently, in a settlement negotiation between lawyers, something worse than an impasse might result if one of them makes the syntactical slip that appeared in the curt email of an American attorney: “My client refuses to up his offer; up yours.”

Gary Slapper is global professor at New York University, and director of its London campus. His latest book,Further Weird Cases, is published by Wildy, Simmonds & Hill; twitter @garyslapper