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The Times

Tuesday, November 22 2016

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

Today

  • Supreme Court launches diversity recruitment drive
  • Whitehall lawyers struggling with great repeal bill ‘nightmare’
  • Child abuse inquiry defends non-lawyer chief
  • Union lawyer presses for Uber to pay minimum wage
  • Delivery firm latest in employment law line of fire
  • Comment: Mixed gender mediators get best results
  • Blue Bag: The end of the street for Freshfields
  • More Blue Bag: CMS gets fit for walk down the aisle

Plus the new Brief Premium ...

  • Ministers must act on gender pay gap reporting, says Cherie Blair, QC
  • Finance focus: Banking on change -- Trump rips up reforms; UK in-house lawyers braced for regulation

Tweet us @TimesLaw with your views.

 
Story of the Day

Supreme Court launches diversity recruitment drive

The judge who heads the UK’s highest court has admitted that it suffers from a “marked lack of diversity” as he announced that he is stepping down next year amid a 50 per cent turnover in Supreme Court justices.

Lord Neuberger (pictured), who will shortly head an unprecedented 11-judge panel to hear the government’s Brexit appeal, said that the Supreme Court does not “score at all well” in terms of diversity, with only one woman among its 11 justices.

He said that the court was facing a 50 per cent turnover in the coming months as he launched an unprecedented drive to attract more women and ethnic minority candidates, including Supreme Court tours, “insight sessions” and private chats with justices.

The “familiarisation” measures are part of a radical programme to widen the diversity of the UK Supreme Court, where there is one woman and ten men, who are all white. Lord Neuberger said: “We have one white woman and ten white men, and although two of the eleven were not privately educated, none of us come from disadvantaged backgrounds.”

While the present members of the bench accurately reflect the ethnic and gender profile of eligible candidates – and there has been some slight improvement in diversity – Lord Neuberger said that there were “still serious problems so far as retention and promotion are concerned”.

Lord Neuberger, giving the Bar Council’s law reform lecture yesterday evening, said that he would be stepping down as president at the end of next summer and during the next year three other justices would be leaving. There is already one vacancy. He said that he had told the lord chancellor that he intended to retire at the end of next year, along with Lord Clarke, and that during 2018, Lord Hughes, Lord Mance and Lord Sumption would all reach the retirement age of 70.

Lord Neuberger said that he and the deputy president, Lady Hale, were “keenly aware that the profession and wider society are looking to the Supreme Court to lead the way on diversity rather than simply waiting for a ‘trickle up’ effect from natural developments and efforts made further down the system”.

Liz Truss, the lord chancellor, said: “The Supreme Court makes an immense contribution to our constitution, hearing cases of the utmost importance that impact upon the entire population. It is right that such a crucial institution taps into all the talents of our country.

“That is why I wholeheartedly support the steps the court is taking to introduce a more flexible and open appointment process for Supreme Court judges. I urge people with the right qualities from all backgrounds to apply for these important positions.”

Chantal-Aimée Doerries, QC, the chairwoman of the Bar Council, said: “The Bar is encouraged to hear Lord Neuberger’s ambitions for improving the diversity of the Supreme Court … There is more to be done, and a collective effort from the Bar, judiciary, lord chancellor and other parts of the legal sector will be essential to making a difference.”

 
 
 
 
News Round Up
Whitehall lawyers struggling with great repeal bill ‘nightmare’

Theresa May could be forced to water down her pledge to enshrine all EU law into British legislation before Brexit after warnings that the process was turning into a legal “nightmare”, reports Oliver Wright.

Government lawyers working on the so-called great repeal bill are understood to be struggling with the complexity of the task, while experts warned that the plan was “simply not practical”.

Some have now suggested that the bill would have to be substantially watered down or face “serious legal and practical difficulties” when it is introduced to parliament.

Lawyers from across every Whitehall department are trawling through tens of thousands of pages of EU directives and regulations going back more than 40 years. According to some estimates, there are more than 40,000 legal acts in the EU, as well as 15,000 court rulings and 62,000 international standards, all of which would have to be incorporated into UK law.

One former minister described the process as a “nightmare”, while a former government lawyer said that the whole process was “hideous”.

Legal experts said that it was next to impossible to incorporate such a vast body of law into UK legislation on a blanket basis because so much of it was only relevant while the UK was a member of the EU. “You can’t just take the whole of EU law and plonk it into the UK legal system because so much of what the EU does is inherently cross-border in nature,” said Michael Dougan, professor of European law and Jean Monnet chair in EU law at the University of Liverpool.

“Once you have left the EU that doesn’t make sense any more. You can’t force other countries to recognise your decisions any more if you’re not part of the EU. Equally it would be rather preposterous to leave the EU and still give full legal recognition to thousands of foreign decision-making bodies.”

Child abuse inquiry defends non-lawyer chief

Officials at the beleaguered child abuse inquiry have defended the present chairwoman’s suitability for the role in the wake of suggestions that she should be replaced by a judge.

Alexis Jay, a professor at Strathclyde University, had a long career in social work before becoming an academic. Since she was appointed in August to replace Dame Lowell Goddard, the New Zealand judge who stood down amid claims that she was struggling with English law, Jay has faced criticism that her social work background was a conflict of interest.

A spokesman for the Independent Inquiry into Child Sexual Abuse yesterday acknowledged that “some detractors insist on focusing on the fact that Professor Jay doesn’t have a legal background, as though a lifetime of investigative work looking at issues of safeguarding and protecting children is somehow less important.

“The inquiry has a strong legal team and two members of the panel are barristers. What Professor Jay brings to the table is a track record of getting to the truth to better protect the vulnerable.”

Jay is the inquiry’s fourth head since it was launched by Theresa May in 2014 when she was home secretary. Most of its senior legal team has also left amid claims that the inquiry is beset by infighting and disorganisation.

Union lawyer presses for Uber to pay minimum wage

One of Britain’s biggest trade unions has called for Uber to be forced to pay its drivers the minimum wage after an employment tribunal ruled that they are employees.

Officials at the GMB yesterday urged HM Revenue and Customs to enforce the minimum wage law and to collect national insurance contributions and PAYE taxes from the US digital mini-cab company.

“We have formally requested today that HMRC investigate the dark maze of tax avoidance at Uber,” said Maria Ludkin, the union’s legal director, in the wake of a ruling last month ago that found in favour of a challenge brought by drivers. The company can no longer try to pass the buck of tax responsibility to drivers by pretending they are self-employed.”

She called on the authorities to act now, maintaining that the union had demonstrated that one driver’s average hourly wage for driving hours was £5.68 and nil for time waiting for work. The legal minimum hourly wage is £6.70.

The union’s lawyer said that HMRC had a legal duty to ensure that the approximate 30,000 Uber drivers in the UK were paid the national minimum wage for all the hours that they were “clocked on”.

Ludkin went on to speculate that “Uber is likely to have to raise fares to comply with employment laws. This will make it less predatory for the rest of the industry.”

Uber UK declined to comment on the GMB’s position. In the aftermath of the tribunal judgment, Jo Bertram, the company’s UK boss, said: “Tens of thousands of people in London drive with Uber precisely because they want to be self-employed and their own boss.

“The overwhelming majority of drivers who use the Uber app want to keep the freedom and flexibility of being able to drive when and where they want. While the decision of this preliminary hearing only affects two people, we will be appealing it.”

Delivery firm latest in employment law line of fire

Outside the gig economy, another union today heads to a tribunal in an attempt to force a reclassification from “independent contractors” to “workers”.

Lawyers for the Independent Workers Union of Great Britain will argue at the London Central Employment Tribunal that couriers working for CitySprint should be granted full rights.

Jason Moyer-Lee, the union’s general secretary, told The Brief that the case was similar to the recent action taken against Deliveroo, the meal delivery company that is very much part of the digital economy. “We intend to expose the unlawful behaviour of the UK’s courier companies,” Moyer-Lee said, claiming that they “have been denying their workers paid holiday, entitlement to minimum wage, and other rights for years”.

Going into bat for the union in the case will be Jason Galbraith-Marten, QC, of Cloisters chambers, instructed by the London law firm Bates Wells Braithwaite. Acting for CitySprint is Timothy Brennan, QC, of Devereux Chambers, instructed by the London office of the US law firm Squire Patton Boggs.

In Brief

Consumers caught out as UK firms furnished with crippling copyright laws – The Guardian

Facebook scam encourages people unknowingly to break the law – The Independent

Council chiefs under fire over ‘emergency’ grant to solicitors firm – Law Gazette

US law school admissions collapse – Financial Times

 
 
 
Byline
Comment

Mixed gender mediators get best results Michelle Uppall

Mediators should be neutral, impartial and balanced to resolve complex disputes, but nonetheless there are different styles of mediation – some more feminine and some more masculine.

Kathy Perkins, a US mediator, said that female mediators are more likely to adopt a more nurturing style, being more concerned with how problems are solved as well as listening to the needs and concerns of each side.

In contrast, male mediators are sometimes seen as more aggressive and more willing to push an issue in negotiation.

No surprise, then that co-mediation – involving a male and female mediator with different skills – is often termed as the gold service. Gender balance incorporating a range of skills and allocating different roles has lots of advantages. There is no need for the mediators to always agree, but together they can demonstrate a way to work and a model for the parties.

In family mediation, co-mediation works well and working with other mediators with varying skills or interdisciplinary specialism, such as therapeutic experts and financial advisors, can be helpful for cultural balance as well as gender.

Take, for example, a family case where the wife has given up her career to raise children, while the husband’s career prospered. His pension was significant and he took issue with sharing it.

He tried to align himself with the male mediator and it was important that the female mediator addressed this and took the lead in asking questions to normalise the issue, while the male mediator skillfully took the wife through matters, so that both dispelled assumptions and various roles that this couple had assumed.

The shuttle or “caucus” mediation can also be a valuable approach in which to mediate, irrelevant of gender style. Sometimes parties reach an impasse or difficult point that could potentially be explosive. Breaking into different rooms where the mediator or mediators can move between the parties can calm the atmosphere. But the mediators should always aim to bring the parties back together.

Mediators always need to remain sensitive to imbalances – whether, gender, cultural, or issue related, which will generally crop up in all situations. Male and female mediators need to remain mindful of these and not make any assumptions while negotiating an acceptable outcome for all parties.

Theresa May, Liz Truss and Angela Merkel have tough international situations ahead, but taking the right approach in different environments, while not aligning themselves to a particular gender stereotype, will be just as important and influential as the outcome itself.

There is nothing to suggest that women have better negotiation techniques than our male counterparts. It is not about being right or wrong or better, it is about having different approaches, and in many cases a combination of approaches can be most effective.

Michelle Uppal is a mediator and family law partner at Miles & Partners, a City of London law firm

 
 
Tweet of the Day

Last year, as I recall, I predicted that the MoJ would screw up everything it touched in 2016. Was I right or was I right?

Chris Dale @chrisdaleoxford

 
 
Blue Bag

The end of the street for Freshfields

No wonder the Wig & Pen club threw in the towel a few years ago and sold up to a Thai restaurant chain. Not only has every national newspaper and news agency journalist deserted Fleet Street, now the last of the lawyers is on the verge of bailing out.

Freshfields Bruckhaus Deringer, the Anglo-German “magic circle” practice, is reported to have cut a deal that will see it ditch the iconic London road for a soulless high-rise glass and steel building in Bishopsgate.

The rumour mill was set whirring by a report in The Lawyer magazine, which said that the firm’s management team has had eyes on skyscraper existence for some time – at one stage flirting with a move to the Gherkin. Meanwhile, the Legal Cheek website has pointed out that firm’s desire to reduce floor space has been helped by shifting much of its support and basic legal services a long way from Fleet Street, to Manchester.

City legal watchers are still keeping a close eye on the magic circle rival, Clifford Chance, which moved to Canary Wharf nearly 14 years ago. Last year the firm shifted 400 support staff from its main building to an open-plan office around the corner, triggering speculation that the high-flying and “client-facing” lawyers would be moving back to the Square Mile.

Perhaps the firm could get a good deal on Freshfields’ old gaff on Fleet Street.

CMS gets fit for walk down the aisle

More woes for the poor infantry foot soldier lawyers and staff caught up in the farrago that is the tripartite merger between CMS, Nabarro and Olswang.

Significant numbers – mostly from Olswang – have been telephoning “executive search technicians” (that’s head-hunters to you and me) and quietly whispering, “Get me the hell outta here”. And the latest post-merger revelation suggests that CMS – the firm generally assumed to be calling the shots in the deal – has launched a “profitability drive” in advance of the knot being tied.

Apparently the firm wants to look trim and fit on the big day, so, according to The Lawyer it is looking to shed a few pounds by forcing some heavy-drawing partners down the equity ladder. And indeed, some fee earners are even being “managed out” as the magazine delicately describes the process of being handed a cardboard box and told to clear the desk before lunch.

Driving this fat-trimming, speculates The Lawyer, is the CMS management committee which has compared its profit margin with Nabarro and found that it is about 0.5 per cent worse off.

As of last week, the latest partner to say “thanks, but no thanks” to the looming three-way merger, is Olswang’s Justin Hill, the firm’s former patent prosecution group co-chairman. According to the Legal Week website, Hill is off to Dentons.

That move came after Rob Bratby, a technology partner, left Olswang for the London office of Arnold & Porter, and Azlinda Ariffin-Boromand, a corporate finance partner, bailed to Withers.

 
 
Closing Statement

Belting up Denning

Judges have sometimes gone to unusual steps to enforce the law, writes Gary Slapper. A recently broadcast video shows Judge John McBain in Jackson County, Michigan, throwing off his robe and bounding on to the court floor to help tackle to the ground a defiant man during a hearing on a personal protection order violation. “Tase his ass right now,” the judge shouted to the court policeman as he rushed towards the defendant.

In Britain, judicial superpowers have been exercised in a more gentle way. As a passenger in his neighbour’s car one day, Lord Denning was admonished for not wearing a safety belt. “You know it’s the law,” his neighbour advised. With a quiet chuckle, Denning replied: “I am the law.”

Gary Slapper is global professor at New York University and director of its London campus; Twitter @garyslapper