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The Times

Friday, April 28 2017

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


  • Ditch the Human Rights Act, ex-minister tells May
  • Government attempt to delay air pollution plan rejected
  • Leigh Day admits 'cock up over key document
  • Lack of resources blamed for ‘shocking’ rise in custody deaths
  • PwC recruits as accountants threaten law firms
  • Leicester student bags pro bono award
  • Comment: How to resolve a problem like Brexit
  • The Churn: Women behind again in City partnership round
  • Blue Bag diary: Political silk remains unsprung
  • More Blue Bag: National Justice Museum relaunches

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

Story of the Day

Ditch the Human Rights Act, ex-minister tells May

A senior Conservative has warned the prime minister that unless she pulls out from the European Court of Human Rights in Strasbourg she will continue to face problems over deporting terrorists.

Lord Faulks (pictured), who was justice minister until last year, says that the election provides Theresa May with what could be a once-in-a-lifetime opportunity to go for the “full fat” option and end Strasbourg’s oversight of human rights in the UK. Writing in The Times today Lord Faulks says that withdrawal had been May’s original policy and it was also in the Conservative Party’s 2015 manifesto.

The aim had been to scrap the Human Rights Act and replace it with a British Bill of Rights, he says. The proposals did not see the light of day because of the referendum on leaving the EU.

Lord Faulks, who was joint author of the government’s plans for the British Bill of Rights, warns that if May does not bring ultimate responsibility for human rights back to UK courts and parliament she will face problems. “The extreme difficulty of getting rid of terrorists will inevitably crop up again,” he says. Other problems include the “persecution” of armed forces through human rights claims over actions on the battlefield.

He says: “The full fat option would allow our own courts and parliament to protect human rights as they did before 1998. A substantial majority after the election would enable the prime minister to do what she said she wanted to do. Such an opportunity may not come again.”

Lord Faulks, a practising barrister who has acted in many human rights cases, does not believe that the UK’s membership of the European Court of Human Rights adds significantly to protection of human rights in Britain.

News Round Up
Ministers’ attempt to delay air pollution plan rejected

Government attempts to delay publishing plans to tackle illegal air pollution until after the general election were rejected yesterday in the High Court.

Whitehall lawyers told Mr Justice Garnham that publication would drop a "controversial bomb" into local and national elections. They had claimed that it would break purdah rules that prevent the government from making announcements with political implications during election campaigns.

Ministers had been given until 4pm on April 24 to set out draft measures on reducing illegal levels of nitrogen dioxide pollution after the judge ruled last year that existing plans to meet EU-mandated air quality limits were inadequate and must be improved. But days before the deadline, the Department for Environment, Food and Rural Affairs applied to postpone publication of the draft clean air plan until after the general election on June 8.

Yesterday the judge sided with Client Earth, a campaigning group of lawyers, and rejected the government's application. He said that the draft plan must be published on May 9, five days after the local elections, with the deadline for the final plan, July 31, unchanged. The government may take their case to the Court of Appeal.

A Downing Street spokeswoman said: “We will consider the judgment and decide what we do next.”

Leigh Day admits 'cock up over key document

Leigh Day admitted that it made a “cock-up” in overlooking a crucial document that led to the collapse of a £31 million public inquiry, a tribunal was told yesterday.

The London law firm said that it failed to spot the significance of the document that undermined its claims against the British army and suggested they were based on lies. However, it did not deliberately suppress the evidence which led to the collapse of the al-Sweady inquiry in 2014, it had no agenda to “do down the army” and it was not motivated by money, the Solicitors Disciplinary Tribunal was told.

Patricia Robertson, QC, of Fountain Court Chambers in London, told the tribunal that the firm had never denied the significance of the document, which showed that its Iraqi clients were insurgents and not innocent farmers.

“Not spotting its significance was a cock-up that is admitted and much regretted by all concerned,” she said, insisting that it did not amount to professional misconduct. The silk went on to tell the three-strong tribunal that “lawyers do miss important documents; this was not the nail that caused the kingdom to be lost. No one here is fired up by an agenda to do down the army”.

The firm would always regret its mistake, she said: “Everyone has mistakes carved on their hearts like Queen Elizabeth [although she meant to say Queen Mary], who lost Calais.” Robertson warned that a finding of misconduct could have a “chilling effect” on lawyers’ work and deter them from acting on difficult cases or speaking out on matters of public importance. “We don’t always prove to be right about how cases turn out nor always right about the judgments we make about other human beings,” she said.

She added that the document was not the “silver bullet” that had brought down the whole case; there was other evidence involved.

The law firm and two of its partners, Martyn Day and Sapna Malik, face 19 misconduct charges over claims that British troops tortured and murdered Iraqis. Anna Crowther, a junior solicitor, faces one allegation of destroying a key document.

All deny any wrongdoing and the hearing continues.

Lack of resources blamed for ‘shocking’ rise in custody deaths

Deaths in UK prisons leapt by nearly 20 per cent over the past year and suicides more than doubled since 2013.

There were 344 deaths in prison custody in the 12 months to March 2017, according to figures released yesterday by the Ministry of Justice. That was 54 more deaths than the previous year. Three were homicides, which was down from six.

Lawyers described the rise as “shocking” but it was the 113 suicides -- ten of which were in women’s prisons -- that attracted most of their attention. The total was 11 higher than the previous year, and more than double that four years ago.

The increase painted “a truly shocking picture of the situation in our prisons”, said Clair Hilder, a lawyer at Hodge Jones & Allen who represents families of prisoners who have died custody. She blamed “under-resourcing, overcrowding, a lack of training and the imprisonment of those with severe mental health issues who shouldn’t be there”.

She continued: “It is clear that prisoners are being badly let down due to poor provision of mental health care, a lack of communication between staff, inadequate implementation of suicide and self-harm prevention procedures and a failure to give staff the training they need to deal with those who are vulnerable to self-harm and suicide.

“Prison staff struggle to do what is required of them due to under-staffing and time pressures.”

PwC recruits as accountants threaten law firms

PwC has expanded its 16-month-old law firm with two more partners in a move that will reinforce fears that the “big four” accountancy practices are aggressively competing with established commercial legal practices.

Andrew Giverin and Jason McQuillen join the bean counters from Radiant Law, which they co-founded. Since launching at the beginning of last year, PwC’s in-house law firm has grown to 20 equity partners and 350 lawyers across the UK.

The big four accountant joined EY and KPMG in acquiring alternative business structure licences that allow them to practise as law firms in England and Wales. Deloitte has so far not applied for a licence. Commentators increasingly suggest that the big four practices present a growing threat to mid-tier commercial law firms in the City of London.

PwC said that the two latest partner recruits would focus on “designing and developing managed legal services solutions for large corporations and helping them to optimise how they handle their bulk contracting work”.

Shirley Brookes, the head of legal services at PwC, said: “Many of our general counsel clients are transforming their in-house legal function and the expertise Andrew and Jason bring in running a managed legal services business in commercial contracts will not only add value to our clients, but will also complement our legal function consulting offering.”

See The Churn below

Leicester student bags pro bono award

Anna McCormack of Leicester University has picked up this year’s prize for the best individual student contribution to pro bono legal work, receiving the award from the attorney-general.

McCormack was honoured for successfully overseeing the development of several schemes, including an initiative to support homeless people with both legal and medical needs. She also established a pro bono magazine and organised a networking event and an awards evening. Jeremy Wright, QC, the attorney-general, presented the award, which was sponsored by the charity Law Works earlier this week.

Other winners included Birmingham University, which took this year’s prize for the best law school contribution to pro bono work. The law school has more than 200 student volunteers across 14 extra-curricular projects who handle a variety of legal issues. The projects include a free legal advice clinic, which has advised 225 clients, and a project providing advice to the homeless and people with drug and alcohol problems. It also works with the Environmental Law Foundation and the Centre for Criminal Appeals.

The Teesside Law Clinic was awarded the prize for the best contribution by a team of students. It provided assistance to former employees of a steel works following its closure. Students advised on claims on behalf of 340 people, eventually submitting an application to the Employment Tribunal, which resulted in each client receiving £3,600 – a total of more than £1.2 million.

The runner up for best individual student award was Roisin Donnelly from the University of Strathclyde, while the runner up in the law school category was the University of Bristol and the runner up in the student category was BPP Leeds’ mock trial team.

In Brief

Female ethnic minority defendants 'overwhelmed by legal jargon' – Law Gazette

Hunt 'broke law by abandoning NHS 18-week treatment target', says barrister – The Independent

‘Claudia's law’ to help families of missing people clears parliament – Sky News


How to resolve a problem like Brexit … Peter Oliver

The UK’s move towards the EU exit door involves a couple of certainties: post-Brexit disputes will be numerous, varied and generally fruitful for the legal profession, but negotiations over dispute mechanisms will be fraught.

Two key steps in the Brexit process have been taken recently as the government lodged its Article 50 letter notifying the EU of its intention to withdraw, and the European Council published its draft negotiating guidelines. Until then, the EU had not set out in anything other than the vaguest terms of its position on an issue that will have to be solved if there is to be any withdrawal agreement under Article 50 at all: the choice of appropriate dispute settlement mechanisms after Brexit.

This matter is delicate. The British government is no friend of the European Court of Justice, while the EU is subject to various legal constraints. Like almost everything concerning Brexit, this issue is shrouded in uncertainty but, on the basis of the draft guidelines, the mechanisms might look something like this.

Over disputes with the government of a state outside the EU, the European court does not have jurisdiction under the EU treaties unless the third country agrees beforehand -- and the government will be loath to do that. Usually such disputes are submitted to international courts or tribunals of arbitration.

Exceptionally, where the EU institutions adopt an act with adverse consequences for a third country, it can challenge that act before Europe’s highest court. The EU’s draft guidelines appear to suggest that the bloc will insist on that forum for such litigation – for example, an action against a decision by the commission relating to a sum owed by the UK post-Brexit.

As to proceedings involving private parties, the situation is different. In view of the depth and complexity of the UK’s relations with the EU, these are likely to take many forms.

According to recent European court case law, legal proceedings cannot escape its jurisdiction. But how broad this rule is remains a matter for speculation.
Conceivably, disputes involving investors might be the subject of international arbitration, but we do not know to what extent such a mechanism is lawful.

On the other hand, the typical Polish plumber could hardly be expected to go to international arbitration to enforce his right to remain in the UK, and nor could a British pensioner on the Costa del Sol regarding rights in Spain. Such disputes can only be decided by national courts. Presumably that means that British courts will have to apply European case law regarding the free movement of persons, including judgments delivered after Brexit.

In addition, there will no doubt be a joint committee of the parties – a purely political mechanism under which, if attempts to reach a diplomatic solution fail, a party can adopt political sanctions or denounce the agreement.

Peter Oliver is a lawyer at Monckton Chambers in Gray’s Inn; he is a former legal adviser to the European Commission

Tweet of the Day

That moment when you're listening to #r4today and you remember that Boris Johnson is sent to other countries to rep…

Jamie Jenkins @JJenkinsSJB

Blue Bag

Political silk remains unsprung

Jolyon Maugham, QC, the English Bar’s most vocal Remainer, has been toying with the emotions of his nearly 40,000 twitter followers and other fans.

For a while this week it looked as though the tax law specialist from Devereux Chambers in London was going to put his money where his social media mouth is and stand for parliament in the forthcoming general election. But not only was Maugham going to dive into politics with little or no previous experience, he was heading straight for the deep end to take on the prime minister in her Maidenhead seat.

Maugham had even geared up to launch his own political party – presumably to avoid the nasty selection business imposed by the established parties. It was called “Spring the Party”, or STP, which had the potential downside of reminding middle-aged voters of the SDP.

The silk billed Spring as “a party of the radical centre”, which would bring a grateful electorate “solutions for the world today and tomorrow. Not yesterday”.

At the heart of Maugham’s campaign was to be a 28-day party with each day themed around the cultural motifs of the EU’s member states; Beefeaters, Braveheart lookalikes, leek soup and bowler-hatted Orangemen would presumably have covered off the UK contribution.

But just as the burgeoning party’s faithful began to look forward to Spring’s first televised party political broadcast, Maugham pulled the plug. “I have some great friends in the music and creative industries,” he wrote on his blog. “Serious people. ‘It’s a wonderful idea,’ they said, ‘but completely impossible to execute in the available time.’”

Theresa May will be heaving a sigh of relief.

Feeling their age

Simran Lakhotia had a William Hague-style moment on Wednesday evening at the Royal Courts of Justice in London.

The former Conservative leader will be forever known for his appearance before the 1977 Tory conference. Aged just 16, opinions divided then – and probably still do – between those who took him to be a welcome youthful breath of fresh air … and those who though he was a precocious upstart.

Lakhotia, a 14-year-old student at St Marylebone Church of England school in London and a participant in the National Justice Museum’s “Take to Law” initiative, went down well at the event marking the gallery’s relaunch. She became slightly Hague-like when quoting Aristotle and the lead character from the film Legally Blonde in a speech in which she decried the lack of diversity in the legal profession.

On the other hand, she must have left many senior advocates and judges, including the former lord chief justice, Lord Judge, feeling slightly old.

Ground-breaking justice

Dame Julia Macur, the Court of Appeal judge who is the museum’s president, entertained the event with a tale of one of her early days in practice at the bar.

The museum’s original site was at the old courthouse building in Nottingham. The young barrister was instructed to attend for a simple hearing (she had been told the local bench was “ferocious and ate white wigs for breakfast” so her anxiety levels were high) and she failed to appreciate the finer points of the historic building.

The site was formerly the courthouse and jail. The jail moved owing to the squalid condition of the building, but the court remained until eventually the floor gave way during a hearing with the judge looking on as the parties fell into the bowels of the building.

The Churn

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

Women behind again in City partnership round

City of London commercial firms picked up the pace in the spring partnership appointment round as they came under increasing scrutiny over the diversity of their top teams.

The transatlantic practice Norton Rose Fulbright boosted eight Londoners to its global partnership out of 45 in total. The firm went to the top of the class in the Square Mile with six of the eight being women: Victoria Birch, Charlotte Henry, Noleen John, Neha Khosla, Claire O’Donnell and Holly Stebbing. The two men are Nicholas Berry and Andrew Wood.

Ashurst included seven Londoners in its global promotion list of 19. But trade publications pointed out that the firm made up only four women overall, falling well short of its stated target of one third. The new Ashurst London partners are Ruth Buchanan, Alex Biles, Simon Bullock, Malcolm Charles, James Fletcher, Anthony Johnson and Callum McPherson.

The British law firm Irwin Mitchell logged up 15 new partners, five of whom were women. The full list is: Paul Barnard, James Berry, Graham Clark, Sital Fontenelle, Kevin Fox, Joanna Grewer, Sarah Griggs, Nathaniel Groarke, Daniel Hedley, Tom Paton, James Paton-Philip, Emma Rush, Ian Toft, Glen Walker and Emily Williams.

Clyde & Co had a slightly more modest partnership round, promoting nine around its international offices, three of whom were in London: Katie Carmichael, Kate Duffy and Richard Elks.

Over in the transfer market the City office of the US firm Paul Hastings has poached the white collar crime specialist Simon Airey to its partnership from the transatlantic practice DLA Piper.

And in Europe, the City law firm Ince & Co has taken over the Hamburg firm Schwenke & Partner. Thomas Schwenke, the local firm’s senior partner, comes with one associate.

On a sad note, Holman Fenwick Willan, a City shipping specialist firm, announced that an insurance partner, James Clibbon, died on April 24. Clibbon spent much of his career acting in professional indemnity matters. He joined the firm in 2012 having qualified at the Bar in 1994 and re-qualified as a solicitor three years later.

Quote of the Day

“Most of the people I grew up with are either dead or in prison.”