Weekly Notes: legal news from ICLR, 17 October 2022

This week’s roundup of legal news covers politics, ethics, diversity, the post office scandal inquiry and more. Plus case summaries and commentary. (Apologies for the lateness of this week’s posting, owing to illness and jetlag.)

Politics

You could call it a u-turn, but it was more like a top gun’s screaming aerial backflip, the way fiscal policy — having unbuckled Britannia and prompted a market panic and pension fund crisis — was savagely inverted, dropping one of the pilots and preserving the captaincy of the other in little more than name, while (taking a deep dive) the rest of us watched the remake of Hunt for (no longer in the) Red October.

Some were relieved (of their jobs) and others more concerned for their pockets and pay packets. According to commentary from Pinsent Mason’s Out-Law blog, UK’s economic policy ‘barely recognisable’ after major tax and energy U-turns. We now have, says David Allen Green, A Prime Minister in Name Only.

Whether Jeremy Hunt’s replacement of Kwasi Kwarteng as Chancellor of the Exchequer presages any wider cabinet reshuffle or a much-discussed change of Prime Ministership remains (at the time of writing) to be seen. If Liz Truss goes, it is unlikely she will be much missed by the legal professions or the judiciary for whom she failed to stand up in her brief but turbulent stint at Lord Chancellor. Whether the higher hopes that may have been placed in her appointed successor in that post, Brandon Lewis, are to be realised must depend on how much support he can get from a now rather more stringent Treasury in providing the necessary funding to recruit the judges, pay the lawyers and maintain the courts in the condition necessary for a functioning justice system. Meanwhile, all eyes are on those revolving doors in the corridors of power.

Late news (Wednesday): the former Attorney General, Suella Braverman QC, has just resigned from her post as Home Secretary, reports The Guardian, following her admission “that she had sent an official document — a draft written statement on migration that was due for imminent publication — from her personal email to a fellow MP as part of policy engagement, which is against the rules”. In a resignation letter described as “brutal” she criticises the present version of a Conservative government for failing to honour the manifesto commitments dating back to the 2019 election, while accepting that “It is obvious to everyone that we are going through a tumultuous time”. Well.

Keep that revolving door oiled, there may be more to come.

Legal professions

Lubna Shuja was sworn in as the new Law Society president last week. A sole practitioner, admitted as a solicitor in 1992, she specialises in professional discipline and regulation. She becomes the 178th Law Society president, though only the seventh woman, and is apparently the first Asian woman and the first Muslim to inhabit the role. She takes over from another women president, Stephanie Boyce. The beginning of her term also coincides with the 100-year anniversary of the first woman — Carrie Morrison — being admitted to the roll of solicitors.

“I am honoured to serve as Law Society president,” said Lubna. “I take on the role at a difficult time for the legal profession… The rule of law has been in the spotlight as never before in recent history. The UK’s economy is on a knife-edge and businesses are having to deal with rising interest rates and high inflation.

“If the pandemic has proven one thing, however, it is that solicitors are resilient and adaptable. They keep the wheels of justice turning by providing services remotely, innovating at pace and ensuring the public can get the justice they deserve.”

Lubna’s five-point presidential year plan includes a focus on professional ethics, which she says is “a topic close to my heart”. She says:

“Solicitors act in the best interests of clients and their primary duty is always to the court. Yet parts of the profession have been unfairly criticised in the past for representing their clients and just doing their job.”

She plans to “open a wider discussion on the ethical challenges the profession faces” and “to help members to navigate this increasingly complex environment and to seek solutions to cope with the constantly changing narrative”.

Ethics were also to the fore at last week’s Legal Services Board conference in London.

The legal profession is “drawing the ethical boundaries in the wrong place” in its dealings with corrupt kleptocrats and oligarchs, and risks having reforms imposed on it as a result, according to Robert Barrington, professor of anti-corruption practice at Sussex University and former head of Transparency International in the UK. No doubt the new President will wish to pay attention to his warning, reported in Legal Futures, that hitherto

“the Law Society has not distinguished itself in its own approach to this. Standard arguments are rolled out around access to justice, the right to representation and innocent until proven guilty — all of which have merit in certain circumstances but certainly should not be applied in a blanket way to this issue.”

He warned that, “if the profession doesn’t change itself, it’s more likely to have change forced on it”. The session was chaired by Professor Richard Moorhead of Exeter University, the leading academic on lawyers’ ethics, who noted “how quickly the big firms got the reputational point” in relation to Russian clients after the Ukraine war and “started to panic and shed clients”.

On his Lawyer Watch blog, Moorhead commented:

“I talk to in-house lawyers and practitioners regularly, train some of them on ethics, and am told, regularly that even, or perhaps especially, leading firms, with one or two notable exceptions, do not take ethics sufficiently seriously.”

While Lubna’s appointment represents a boost for diversity in the solicitors’ profession, the Master of the Rolls, Sir Geoffrey Vos has been reminding barristers and judges, especially posh white male ones, to be more inclusive of female colleagues and those from minority backgrounds — in particular by not excluding them from the conversation by talking about subjects in which they may not share an interest. In a recent speech entitled The legal profession: its three most pressing issues for 2022, he pointed out:

“It is difficult to generalise about what topics might make particular groups feel excluded. But women are often less interested than men in sport. Talk about elite schools and universities is likely to make those that did not have the opportunity to attend them uncomfortable. …

Many simply do not realise that exclusion is going on. There is a similar issue in the judiciary, where judges in regional courts and elsewhere often have lunch and take other breaks together. If the conversation is exclusively about Oxford, cricket and the latest operatic production at Covent Garden, it will exclude judges from backgrounds where none of those things is of interest.”

His remarks will chime with many in the profession, particularly if we do not share those genteel obsessions with ball sports and/or gowns. The problem is that from the moment they apply to train for the profession, lawyers are inculcated into a culture of extreme and sometimes toxic competitiveness, in which where you went to school or university and other elite interests and achievements are all presumed to count as blessings whose light should on no account be left under a bushel. In other words, people are expected to boast and preen, and if they don’t push themselves forward they get left behind. Unless and until the law starts to bless the meritorious meek and reward the shy achiever, or even just be a bit more companionable and welcoming, that abrasive culture will continue to flourish.

Diversity was one of the three pressing issues covered by the MR’s speech. The other two were “ the legal sector’s ambivalence, or at least somewhat contradictory approach, to the adoption of new technologies” which he said was “connected” to the diversity issue, and “the need to find ways in which lawyers can add value and, therefore, be properly and appropriately remunerated for work in the brave new world of 2022, without so often following the business practices and methods of the 20th century”. His use of the description “brave new world” suggests a dystopia, but a more optimistic title to borrow might be Things To Come. It follows the trend of a number of speeches he’s made over the course of this year. But briefly, his message is: “Wake up, guys. This is the 21st century.”

Inquiries

In the Post Office Horizon Inquiry, which re-started open hearings last week, counsel to the inquiry Jason Beer KC turned his attention to the behaviour of lawyers. As Richard Moorhead, who has been following the inquiry on a separate blog, commented:

“As a result we can discern the general and more central questions the Inquiry thinks it worth posing about the lawyers. We also learn a good deal more about the involvement of three very senior figures in the legal profession: Brian Altman KC, Lord Grabiner KC and Lord Neuberger, a former President of the Supreme Court, as well as what happened in and around the Swift Review.

There can be no doubt at all now that the advice given, and the instruction on which they were based, are a central part of the Inquiry, alongside many other aspects of the legal work done by and for the Post Office.”

Moorhead discusses what emerges of their various roles in advising the Post Office in relation to prosecutions, appeals and civil litigation. Brian Altman KC, former First Senior Treasury Counsel, advised the Post Office in relation to the criminal proceedings. The former Supreme Court president Lord Neuberger and the head of his chambers, Lord Grabiner, gave advice which supported an ultimately unsuccessful effort to have Mr Justice Fraser recuse himself from presiding over the group litigation in the civil proceedings in 2019.

See also:

Other recent news and comment:

Construction begins on brand new flagship London court in the Square Mile — press release by the Ministry of Justice on the new City of London Law courts. This new complex is said to be a “modern, efficient and flexible centre for London’s legal services, providing a total of 18 hearing rooms, an increase of 10 on the courts they will replace in 2026. This consists of 8 Crown, six civil and four magistrates’ courtrooms. The court will focus on high-level fraud, cyber and economic crime.”

The announcement also says, rather puzzlingly, “The court’s foundation stone is the first in the courts estate to be laid under the reign of King Charles III and the first to be inscribed with ‘KC’ — ‘King’s Counsel’ — in over 70 years.” One might expect the KC to refer to King Charles, but of course his initials are CR (Carolus Rex) so it can’t be that. Who or which KC is to be honoured, then?

What Makes a Settlement “Bad”? Harvey Weinstein, Jeremy Diamond, and the Limits of Private Resolutions by Noel Semple via SLAW (Canada’s online legal magazine)

Top jobs for top lawyers in which Joshua Rozenberg (A Lawyer Writes) celebrates job moves by two leading lawyers. “Dr John Sorabji will be deputy private secretary to the King, today’s Telegraph reports, while Daniel Greenberg CB has been confirmed by MPs as the new Parliamentary Commissioner for Standards.”

Rozenberg reveals that Sorabji, who is footnoted in most speeches by Lord Neuberger as having assisted in writing them, was in fact their primary author, which is disappointing, and makes one wonder how much of other judicial speeches (now the content of a new database on BAILII) were in fact ghosted by academics or other assistants. If speeches, why not judgments?

That King Charles might have his speeches written for him seems somehow less undermining of his authority. After all, it is widely reported (including in The Times) that he has a footman or some other flunky specially to squeeze his toothpaste onto a brush.

Treason doth never prosper — But that’s no reason to outlaw it by rushing through new legislation, says Joshua Rozenberg in another post on his A Lawyer Writes blog. The proposal is being pushed by Tom Tugendhat MP, who is a Home Office minister. Assuming he is still there tomorrow, he will be reporting to a new Secretary of State, Grant Shapps MP, who has been drafted in to replace Suella Braverman.

How the UK press is failing victims of miscarriages of justice — Jon Robins, in an article from The Conversation reproduced on Inforrm’s blog discusses the declining role of the media in investigating and putting right miscarriages of justice, prompted by the recent case of Adnan Sayed who had his conviction overturned by a Baltimore judge after spending nearly 23 years in jail, in a case that was the subject of the true crime podcast, Serial.

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

COMPANY — Director — Personal liability: In re Discovery Yachts Ltd (PSV 1982 Ltd v Langdon), 12 Oct 2022 [2022] EWCA Civ 1319; [2022] WLR(D) 396, CA

CONFLICT OF LAWS — Contract — Arbitration clause: Soleymani v Nifty Gateway LLC, 06 Oct 2022 [2022] EWCA Civ 1297; [2022] WLR(D) 394, CA

DISCRIMINATION — Religion or belief — Equal treatment: LF v SCRL, 13 Oct 2022 (Case C-344/20); EU:C:2022:774; [2022] WLR(D) 399, ECJ

INTERNATIONAL LAW — State immunity — Statutory exception: Argentum Exploration Ltd v The Silver (The Tilawa), 11 Oct 2022 [2022] EWCA Civ 1318; [2022] WLR(D) 395, CA

POLICE — Remuneration — Overtime: KSO v Comr of Police of the Metropolis, 10 Oct 2022 [2022] EWHC 2514 (KB); [2022] WLR(D) 401, KBD

PRISONS — Prisoners’ rights — Transfer to open conditions: R (Oakley) v Secretary of State for Justice, 17 Oct 2022 [2022] EWHC 2602 (Admin); [2022] WLR(D) 402, KBD

REVENUE — Value added tax — Verification of return: DCM (Optical Holdings) Ltd v Revenue and Customs Comrs, 12 Oct 2022 [2022] UKSC 26; [2022] WLR(D) 398, SC(Sc)

And finally…

is from the world of politics:

That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Take care now.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

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