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The Times

Friday, February 24 2017

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


  • Lord Neuberger warns of ‘refusenik’ crisis on post-Brexit bench
  • Sir Nicholas Wall commits suicide after dementia diagnosis
  • Brexit driving a ‘boom in senior lawyer poaching’
  • Peers warn against fast-tracking constitutional change
  • France second to China for online image theft
  • Brexit countdown: View from the Lords
  • Comment: Child refugees in desperate need of legal advice
  • Blue Bag diary: Robbing the robes

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

Story of the Day

Lord Neuberger warns of ‘refusenik’ crisis on post-Brexit bench

A shortage of top-quality judges is threatening the future of the City of London and Britain’s prospects outside the EU, the president of the Supreme Court has warned.

Lord Neuberger said that a “first-class judiciary” was essential for the “whole financial and professional services industries” that were “so vital to the fortunes of this country, perhaps particularly in the post-Brexit world”.

He added that there was an increasing proportion of “refuseniks” – first-class advocates deciding not to be judges – which could become a problem if unabated.

“The concern is not only that it will undermine one of the two fundamental pillars of our society, the rule of law, if we do not have a first-class judiciary,” he said. “It is also because a first-class judiciary underpins the whole financial and professional services industries which are so vital to the fortunes of this country, perhaps particularly in the post-Brexit world.”

His comments come after a recent survey of judges found that nearly half were contemplating leaving the bench because of inadequate pay, cuts to pensions, deteriorating working conditions and feeling undervalued by ministers and the media.

Top-rank lawyers who leave private practice to become judges take a huge cut in salary but no longer believe that there are the compensations that used to exist in terms of job security and pensions.

There are currently vacancies for 25 High Court judges. The last round of vacancies that was advertised failed to attract sufficient candidates of top quality to fill all the posts.

News Round Up
Sir Nicholas Wall commits suicide after dementia diagnosis

The former most senior family judge in the UK has committed suicide after being diagnosed with dementia, his family announced yesterday.

Sir Nicholas Wall, 71 (pictured), was appointed president of the family division in 2010 but had to retire on health grounds early in 2012. He was initially diagnosed with depression, before recently being diagnosed with dementia.

His family placed a notice in The Times yesterday, which said he had “died by his own hand on 17th February 2017”. The notice added that “after years of suffering”, Sir Nicholas had recently been diagnosed with a rare dementia of the fronto-temporal lobe. The death notice included a verse from Tennyson’s poem Tithonus. The family later released a statement saying: “The family will make no further comment and asks to be left in privacy to grieve.”

Sir Nicholas’s appointment as president of the family division and head of family justice for England and Wales had been controversial because Jack Straw, then the lord chancellor, asked the judicial appointments panel that put forward his name to reconsider. The panel, chaired by Lord Phillips of Worth Matravers, did reconsider but then put his name forward again as its preferred candidate. Straw was then left with the options of either exercising his right of veto, which would require him publicly to give reasons why; or endorsing the panel’s choice, which he then did.

Sir Nicholas was called to the Bar in 1969 and appointed a High Court judge in the family division in 1993 before being promoted to the Court of Appeal and Privy Council in 2004. He was described by the Family Law Bar Association as “a compassionate judge who thought and cared deeply about the outcome of his cases”.

In 2011 he called for cohabiting couples to be given the same legal protection as married couples when they separated, so that the courts could force them to divide their assets equally. He was also an advocate of “no fault” divorce.

Brexit driving a ‘boom in senior lawyer poaching’

Uncertainty over the ramifications of Brexit has triggered a boom in senior lawyer poaching between solicitor firms, legal profession specialist headhunters have claimed.

Hiring for senior and partnership roles at law firms leapt by 25 per cent in the second half of last year, a study released this week found. The researchers claimed that while 42 per cent of law firm recruitment in the first half of 2016 involved senior lawyers, that figure jumped to 67 per cent in the second six months.

According to the recruitment agency that commissioned the report, firms are attempting to poach expertise so that they can steal a march on competitors in the run-up to the UK quitting the EU.

“As we edge closer to the start of the Brexit trade negotiations there is less certainty over how the legal landscape will pan out,” said Rhiannon Cambrook-Woods, managing director of Zest Recruitment & Consultancy. “This appears to have prompted many firms to sure-up the talent they already have while actively targeting their key competitors and attracting their best people to work for them instead.”

Cambrook-Woods also highlighted the recent flurry of mergers at the large end of the law firm market, predicting that more consolidation was on the way – and not just among international firms.

“Smaller firms will be looking to form new alliances, to scale up their operations in line with legislative change and to achieve growth – something that many within the sector see as becoming more difficult once Article 50 has been triggered next month,” she said.

Peers warn against fast-tracking constitutional change

Rushing bills through parliament should not become standard, peers have warned after the fast-track treatment given to the bill triggering the UK’s exit from the EU.

The Brexit legislation “should not be seen as setting a precedent for future constitutional bills,” said the House of Lords constitution committee in its report on the European Union (Notification of Withdrawal) Bill.

The report specifically warns ministers that the fast-tracking must not be used “as a precedent in relation to future measures of constitutional significance, such as the Great Repeal Bill and other Brexit-related legislation”.

Lord Lang of Monkton, the committee chairman, said the bill currently before parliament “is undeniably of significant constitutional importance. Usually we would be concerned about the fast-tracking of constitutional legislation, particularly when the justification for doing so depends on a political, rather than constitutional, deadline.

“However, we recognise the political imperatives that underlie this bill. In addition, any concerns we might have about the curtailment of parliamentary scrutiny are mitigated by the fact that the bill is very short and straightforward”.

Lord Lang went on to say that the committee was clear that the Great Repeal Bill and other Brexit-related legislation would be much more complicated, and “we would expect that parliament will have the opportunity fully to scrutinise such important legislation”.

France second to China for online image theft

More online image copyright infringement occurs in China than in any other international jurisdiction – but France is not far behind, research released yesterday has found.

The UK has a far lower instance of online image theft, with the jurisdiction not in the top ten list of worst offending countries.

Researchers found that China – which has a reputation as having wide-ranging problems with intellectual property enforcement – had an image copyright infringement rating of 11 per cent. That means that more than one in ten online images in the country is breaching copyright.

According to the researchers from Copytrack, an intellectual property monitoring business based in Germany, France had the second highest incidence of infringement on slightly more than 9.5 per cent.

The US was the third worst, on about 8.2 per cent. The rest of the ten-strong league table included Turkey, Russia, the UAE, Spain, Ukraine, the Netherlands and Italy. The UK was in 29th position with just 0.75 per cent incidence of online image copyright infringement.

Brexit countdown – legal update as leave approaches

View from the Lords

It has been a gruelling week in the House of Lords overburdened as it was by the Brexit debate, writes Edward Fennell. Almost 190 peers wanted to make their contributions, including some legal luminaries. The debate as a whole was either the Lords at their best – or a protracted demonstration of their irrelevance. Here’s a taster …

Lord Mackay of Clashfern, Margaret Thatcher’s lord chancellor: “Being number 40 on the list reminds me that I was some 45 years outside the European Union, and I remember well some of the service that was done, as has been mentioned, in bringing us into the European Union and the difficulties involved.

“I voted for remain and was fairly enthusiastic about the referendum on the basis that the people were entitled to say whether or not they wished to be in the European Union. We know the answer and, so far as I am concerned, the government and parliament are bound to give effect to that answer.

“Perhaps the most obvious and dramatic indication of that was [David] Cameron’s resignation the morning after, when he said that having led the argument to stay, he could not lead the country out of the European Union.”

Lord Hunt of Wirral, former secretary of state for employment and then for Wales and former senior partner of the pre-merger City of London law firm Beachcroft Wansbroughs: “Like many others in the chamber, throughout my political career I have always been an advocate of closer co-operation among the governments and peoples of Europe, but it saddens me to say that the European Union simply failed to adapt to the complex, rapidly shifting challenges of what I describe as the new world order.”

Lord Lester of Herne Hill, QC, of Blackstone Chambers, a former special adviser on constitutional reform to the secretary of state for justice: “After attempting unconstitutionally to rush to the Article 50 exit without legislative authority, the government have produced this simple bill, which is no better than a motion to approve in legislative clothing, and a white paper that fails to explain the government’s strategy or to answer the key political and legal questions.

“The government interpret Article 50 as a trap that, once opened, cannot be closed. But its author … Lord Kerr of Kinlochard … has made it clear that when the Article 50 process is triggered the UK may continue to remain a member of the EU.

“The white paper – perhaps I should call it the off-white paper – contains statements worthy of Dr Pangloss, George Orwell and Humpty Dumpty. It claims that the UK’s constitutional arrangements make us ‘the world’s most successful and enduring multination state’. Tell that to the Celtic parts of our disunited kingdom. According to the prime minister, ‘after all the division and discord, the country is coming together’. That is fake and false news.”

Lord Kerr of Kinlochard, former permanent under-secretary of state at the Foreign Office and former British representative to the EU: “The president of the European Council and a gallery of EU legal luminaries have confirmed … that a member state may, in accordance with its constitutional requirements, withdraw its notification within the two-year period or its extension.

“…The fact is that Article 50, which first saw the light of day under the heading ‘voluntary withdrawal’ is not an expulsion procedure. We remain full members of the European Union throughout the negotiating period – the two years or its extension. If, having looked into the abyss, we were to change our minds about withdrawal, we certainly could and no one in Brussels could stop us.”

Baroness Kennedy of the Shaws, QC, the Doughty Street Chambers barrister: “There is a myth that we are the victims of a wash of law that comes from Europe. In fact we have contributed greatly to the creation of that law: harmonising standards, ensuring that the judgments in our courts are enforced easily and speedily throughout the European Union and protecting small businesses doing business with other countries.

“We have created consumer rights, and the quality of goods that are being sold has to meet our standards. It means that we can easily sue through our courts and have the judgments made effective. The government have now agreed that the final deal will come before both Houses, but I will ask a question. A statement like that has political force but does not have legal force. What does the promise mean if it is not in the bill? “

Lord Pannick, QC, of Blackstone Chambers, who acted for one of the applicants in the Article 50 judicial review: “I want to pay tribute to [Gina] Miller, because her determination in the face … of quite outrageous racist and sexist abuse has ensured that we have the opportunity to debate whether – and if so on what terms – Article 50 is invoked. The whole House should be very grateful to Mrs Miller.

“The Divisional Court and the Supreme Court carried out their constitutional responsibilities by affirming the supremacy of parliament. It is now for this House to live up to our constitutional responsibility. It is for us to scrutinise a bill of enormous importance to the future of this country.

“… The bill requires amendment, in particular to ensure parliamentary sovereignty as the process of withdrawal occurs over the next two years. Noble lords know that the prime minister has promised that any agreement with the European Union on the terms of our withdrawal and our future relationship with the EU will require the agreement of both Houses of Parliament. She has said that the agreements will so require before any agreement is put to the European parliament for its consent.

“That promise should be written into the bill. A political promise, made by the prime minister in good faith, is no substitute for a clause – an obligation – in an act of parliament.”

In Brief

Legal aid shakeup hands lifeline to domestic violence victims – The Guardian

Thank God for expensive lawyers! – The Spectator

City firms’ trainee retention rates falling – Law Gazette


In our report ("Lawyer faces inquiry over Iraq war claims", Feb 23) and in The Brief, we stated that Sapna Malik had helped British detainees at Guantanamo Bay to win a compensation claim against the British government. We have been asked to make clear that Ms Malik represented only one detainee, Binyam Mohammed. She did not represent Jamal al-Harith.


Child refugees in desperate need of legal advice Ana Beduschi

Across Europe thousands of traumatised children are living miles from their homes in temporary and unsafe places, having escaped terror and warfare. They have seen things nobody should witness, many are alone and incredibly vulnerable to exploitation and abuse.

I have been working with aid workers to deliver legal training to keep those children safe and protect their rights. Many staff in refugee camps are not able to give legal advice or help children through the asylum process so they can go to a place of safety.

Most also lack the knowledge to assess specific mental health issues caused by extreme trauma. Knowing the law and being able to screen vulnerabilities empowers aid workers, who can then assist young people to take part in humanitarian schemes and migration rules such as the Dubs scheme.

I have been teaching aid workers about international migration law, and developing tools to support children suffering from trauma and to protect them from human traffickers. There is strong evidence that it is precisely the lack of legal avenues of migration that provides most of the opportunities for illegal trafficking.

This makes the UK government’s decision to end the Dubs scheme extremely disappointing. So far only a small proportion of unaccompanied children of the forecasted 3,000 it was designed to benefit have made it to this country. Ministers have said that UK and French authorities fear that the Dubs scheme acts as a pull factor and provides opportunities for people-traffickers. There is no evidence for that assertion.

The government’s position is regrettable and dangerous. It does not take into account the best interests of the most vulnerable children who were already identified to participate in the scheme and were just waiting to be transferred into the UK.

The decision to end the Dubs scheme is likely to create uncertainty and chaos. Aid workers affirm that the children will risk their lives and try to come to the UK anyway. Therefore, the government’s position will reinforce the trade in people-trafficking.

It seems government would rather leave unaccompanied refugee children in Europe to live on the streets without any legal or social protection. This leaves them open to exploitation, a heart-breaking situation when they are already vulnerable and traumatised.

If we give those supporting refugee children the capacity to provide them with legal advice and if legal access to international protection is effectively in place, they won’t feel the need to go to smugglers.

It is this absence of legal avenues such as humanitarian visas that provides the pull factor, not the Dubs scheme. We should be making the best use of the law to help refugees, not weakening it.

Ana Beduschi is a senior lecturer at the University of Exeter law school; she is leading a project on the protection of migrant children’s rights in Europe.

Tweet of the Day

Pleading guilty online that where defendants don't actually realise that by ticking the "I accept " they gai…

Jonathan Black @jonblackbsb

Blue Bag

In the picture, not the clink

You have to admire the candour of Tim Eyles and Nicholas Cullinan, respectively the UK managing partner of the international law firm Taylor Wessing and director of the National Portrait Gallery.

Not many in their exalted positions would admit to having been “locked up in Brixton”, but that was exactly the revelation they came out with on Wednesday evening.

Sadly, however, it emerged that the pair had not done time at the famous HMP in south London but had instead been cloistered in a room in south London to sit in judgment on the annual Taylor Wessing Photographic Portrait Prize, which has been running since 2008.

The 2016 first prize went to Claudio Rasano, a Swiss-Italian snapper, for his shot of a teenage boy in a school uniform. He picked up £15,000 for the effort and The Brief trusts that he bunged the young lad a cut. But judging by the expression on the boy’s face, we suspect the artist snaffled the lot.

Second prize went to Joni Sternbach, a New Yorker, for her photograph of a chap with a surfboard, while third prize was picked up by Kovi Konowiecki, a Californian, for his shot of an Orthodox Jewish man wearing an amazing hat.

Robbing the robes

London’s historic inns of court are buzzing with outrage over a spate of thefts from the barristers’ robing rooms at the Royal Courts of Justice.

Dominic D’Souza, a criminal law specialist, took to LinkedIn recently to warn colleagues that a tea leaf had half inched his Bose headphones from the lawyers' sanctuary in the gothic building while he was busy making submissions in the Court of Appeal.

But even worse, the Goldsmith Chambers man revealed that a thief had nicked a colleague's robe and horsehair wig. Sources in law-land tell The Brief that this isn’t the first instance of barristers being targeted. As one commentator on LinkedIn suggests, perhaps someone “misread the name of the room and carried out the act as a command”.

US Supreme Court justice sticks up for the press

Donald Trump’s antennae will have been twitching overnight as BBC Two’s Newsnight wafted its way across the Atlantic.

In a coup for the Beeb, one of the US Supreme Court’s longest-standing justices gave a rare interview. In it, Ruth Bader Ginsburg sticks up for the US media, saying that she reads The New York Times and The Washington Post – two of the president’s bêtes noirs – every day.

Ginsburg is very much on the left-wing side of the bench and there is every chance that Trump will have tweeted by now that she is a “so-called Supreme Court justice”. But as she approaches her 84th birthday, Ginsburg is seen as more than capable of looking after herself.

Quote of the Day

“This has been a boon for immigration lawyers who charge an absurd amount of money to help people navigate through the byzantine rules. And working class families who don’t earn much often don’t have access to such professional support.”