Weekly Notes: legal news from ICLR — 19 June 2017
This week’s roundup includes political fixes, fiddles and failures, the legal fallout from the Grenfell Tower fire, the legality of drones, and our old friends, the McKenzies.
Deal or no deal: caught between the devil and the DUP
Last week we reported that Theresa May, who remains Prime Minister despite calls to resign after her disappointing victory in the General Election, was attempting to shore up her minority Conservative government with a confidence and supply agreement with the 10 MPs of the Democratic Unionist Party of Northern Ireland. At the time of writing, no deal has yet been reached, the Queen’s Speech heralding the opening of Parliament has been postponed, and yet the government is supposed to be ready to commence the Brexit negotiations with the European Union team due to begin today.
Such a deal is not necessarily all bad. There are pros and cons. Among the pros, as we discovered when examining the DUP’s election manifesto last week, is the fact that the DUP, while supporting Brexit, want an essentially soft version — with a soft or porous border with the South. But Brexit is not like the water: you can’t have hard Brexit in one area and soft Brexit in another.
Among the cons, however, at least from a liberal/humanist point of view, is the DUP’s conservative attitude to abortion and LGBT rights. The DUP is by no means alone among Northern Ireland political parties in adopting a restrictive approach to such matters. Two years ago the SDLP opposed a change in the law to make abortion where women have been raped or are carrying a foetus with a lethal abnormality (source: BBC).
However, Sinn Fein at the time did change their stance on abortion, to a moderate extent, supporting early termination in the case of fatal foetal abnormality (source: BBC). And, interestingly, in a little-noticed paragraph, Labour’s manifesto (PDF: p 109) promised to liberalise the position in Northern Ireland so as to match the rest of the United Kingdom:
Labour will continue to ensure a woman’s right to choose a safe, legal abortion — and we will work with the Assembly to extend that right to women in Northern Ireland.
The social policy aspect was thrown into sharp focus this week with the narrow (3:2) majority judgment of the UK Supreme Court in R (A and B) v Secretary of State for Health  UKSC 41 that the Secretary of State’s failure to exercise his power to require that abortion services be provided through the NHS in England — to women ordinarily resident in Northern Ireland — was NOT unlawful. (Many women travel to the UK to obtain the abortions they cannot have performed in Northern Ireland, though the annual number is said to be declining.) The Secretary of State was entitled to respect the democratic decision of the devolved administration in Northern Ireland and to acknowledge the ability to purchase private abortions, the majority ruled. Lord Kerr and Baroness Hale gave dissenting judgments. (See UK Supreme Court blog for summary and links.)
While the talks continue, it is probably pointless to speculate which policies will matter more in the deal: social policy or the degree of hardness of Brexit. But it’s more likely to be the latter, given the risks to confidence in the minority government in the ensuing talks with Europe. Even when the deal is done, however, there’s no guarantee we’ll get the full story on what was agreed.
Two-year session ‘to deliver Brexit and beyond’
According to an announcement from the Prime Minister’s office and other departments, dated 17 June:
Parliament will sit for two years instead of the usual one to give MPs enough time to fully consider the laws required to make Britain ready for Brexit. This includes the Great Repeal Bill, which by converting existing EU law into UK statute will enable the smoothest possible transition at the point of leaving.
The government will deliver this while also addressing deep-rooted inequalities in our society in order to give everyone the opportunities they deserve. Taken together, the EU exit process and the government’s domestic agenda mean the new Parliament faces a substantial legislative programme.
The reference to “addressing deep-rooted inequalities in our society” may be based on manifesto promises, but it also looks like a response to the complaint made by many in the wake of the Grenfell Tower fire that both the fire itself and the treatment of the survivors in London’s richest borough has been symptomatic of deep divisions in austerity Britain and what might be seen as a form of structural indifference to the plight of those most affected by cuts in the funding of public services and resources. This is a long-term failing which it will take a lot more than the distraction of Brexit to fix.
- Joshua Rozenberg, Gazette: Known unknowns
High rise horror: tears, fears and litigation
The fire which ravaged Grenfell Tower, a high-rise block of council flats in North Kensington, last week has given rise to a number of legal and policy issues. We won’t attempt to cover them all, but here are some of them.
Inquest or inquiry?
The Prime Minister Theresa May has ordered a public inquiry, led by a judge of High Court or greater seniority, to be appointed by the Lord Chief Justice, Lord Thomas of Cwmgiedd. But there have been suggestions that it would be better for the victims and vindication of concerns of former residents to hold inquests. An inquiry doesn’t preclude inquests, it just delays them. That’s said to be the downside, because a public inquiry can take years and therefore any public safety recommendations made would not be implemented for a long time afterwards.
However, even the recommendations of coroners are not always implemented quickly or at all. An example is the installation of sprinklers in large housing blocks, which was one of the coroner’s recommendation made in 2013 after a previous, also fatal but less extensive fire, at Lakanal House in Camberwell, south London in 2009, in which six people died (see Guardian, Lakanal House tower block fire: deaths ‘could have been prevented’). In 2016, three years later, the then housing minister Gavin Barwell told MPs the government were still “looking into it”.
Solicitor advocate Sophie Khan, director of London firm Sophie Khan & Co who acted for the victims of the Lakanal House fire in 2009, said last week that inquests would be better than an inquiry. She was quoted by the Law Society Gazette as having told BBC Newsnight
‘The coroner is independent of the government. In a public inquiry it is very much government led. There are very limited rules in public inquiries. It is very much government led, government controlled, government outcome.’
With an inquest, by contrast, Khan said the government ‘loses control of what a jury verdict will do. The juries will come out with narrative verdicts which may be very difficult for the government to hear’.
When asked to confirm that there cannot be both public inquiry and inquest, Khan said: ‘You can’t have both. You can only have one or the other.’
However, two human rights barristers, Adam Wagner and Simon McKay, have posted Twitter threads on the difference between inquiries and inquests, and in each case have said that you can have both: the one does not preclude the other. However, any inquests would be postponed until after the conclusion of an inquiry. Between them, they make a number of other points, including the following.
A public inquiry under the Public Inquiry Act 2005, would be chaired by an independent and senior judge, possibly a Lord Justice, and certainly more senior than a coroner. It would be held in public, subject to any issues of national security (unlikely in this case, one would have thought). Victims and other interest groups would be “core participants”, represented by lawyers, who could ask any relevant questions of any of the witnesses, subject to the chair’s control of the proceedings.
A public inquiry would be wider in its terms of reference than an inquest. However, some inquests, if they qualify as an ‘article 2’ (of the European Convention on Human Rights) inquest, looking into the role of the state in relation to the deaths, have a wider frame of reference than other inquests. That said, while advocates and others can ask witnesses questions, the witnesses needn’t answer if it might incriminate them. The inquest may avoid areas likely to be the subject of a criminal investigation. It is not the purpose of an inquest to apportion blame, in terms of civil or criminal liability.
Ultimately, says Adam Wagner, a public inquiry is probably a ‘more suited vehicle to dealing with wider systemic issues. That’s what they are for.’ The charity INQUEST agreed, in a Statement on Grenfell Tower Fire:
We are in no doubt that the interests of the bereaved families, survivors and the public at large are likely to be better served by a wide ranging judicial public inquiry rather than an inquest in a large scale disaster such as Grenfell House
Tenants of Grenfell Tower reported that they had often complained about potential fire hazards in the building, and about the way it was managed. But their complaints were ignored, and they were unable to get legal aid to fund the advice and help they would have needed to bring proceedings and obtain some form of declaration or other remedy. (For example, tenants concerned that fire regulations are being breached must commission a fire assessment and then bring a private prosecution, something well beyond the means of most tenants or their associations.)
Now that their worst fears have been realised, lawyers have offered to help them cope with the legal fallout. The North Kensington Law Centre has been inundated with offers of help, practical and financial, and has set up a JustGiving page to enable people to donate.
In addition, the Good Law Project set up by Jolyon Maugham QC, has set up a trust “to ensure that cash donations are distributed, in a speedy fashion, to the right people and don’t end up in the wrong hands”. This is not just for legal work, it’s to provide relief for victims in the immediate aftermath.
- Grenfell Action Group blog: Grenfell Tower — The KCTMO Culture Of Negligence (how tenants’ concerns were ignored)
It appears that there will now be a criminal investigation running alongside the public inquiry. That raises the question about the nature of any offences found to have been committed. David Lammy, MP for Tottenham, has suggested corporate manslaughter, and urged the police to seize all documents from relevant parties that could help explain the Grenfell Tower fire’s causes and assist the criminal investigations.
It is notoriously hard to prove corporate manslaughter, which requires proof of a gross breach of a duty of care of equivalent seriousness to the common law standard of ‘gross negligence manslaughter’. However, a change in the law introduced by the Corporate Manslaughter and Corporate Homicide Act 2007 has made it easier to prove the offence against an organisation without needing to identify a single “controlling mind” whose acts or omissions committed all the elements of the offence. It is enough, now, to show that the relevant acts or omissions arose out of the way in which the organisation’s activities were managed or organised by its senior management.
The 2007 Act also applies to partnerships, most government departments, the police and the armed forces. In the case of the Grenfell Tower fire, the most likely candidates would be the local authority, the building’s management company, and the contractors and sub-contractors involved in the refurbishment in which apparently flammable materials were fitted as external insulation and cladding.
If convicted of corporate manslaughter, an organisation faces unlimited fines (these often run into hundreds of thousands of pounds). A convicted company might also be subjected, under section 9, to a remedial order requiring it to take such steps as may specified by the court to improve its “policies, systems or practices”, failing which it would commit a further offence. Moreover, by section 10 it can be required to name and shame itself by publicising the fact of its conviction, the details of the offence, the amount of any fine and the terms of any remedial order.
For more on this, see:
- David Lammy, in The Guardian: This was a monstrous crime — there must be arrests after Grenfell Tower
- Ioannis Glinavos, Senior Lecturer in Law, University of Westminster, in The Conversation: Corporate manslaughter: what is it and could it bring justice for Grenfell Tower victims?
- Obiter J: Criminal liability of corporations
- RightsInfo: How The Grenfell Tower Fire is a Business and Human Rights Issue
The story broke via social media amidst the confusion and horror of unfolding events, and attracted immediate and massive media coverage. We are used to the idea of the media, with their broadcasting vans and shouldered cameras, their reporters and microphones — and in many cases their editorial prejudices — arriving on the scene with the same alacrity as the emergency services. What we are sadly also used to is traumatic intrusion on the grief of victims and their relatives, and not surprisingly such incidents have been reported.
Complaints to the largest regulator, IPSO, have been made, inter alia, in respect of the allegation that a Sun reporter had impersonated a relative of an injured victim in an attempt to obtain an interview in a hospital, and about a Mail Online article about a man (who just happened to be a migrant) whose faulty fridge allegedly started the fire. A spokesman for the Mail, in response to complaints about the story (which has since been toned down), said: “In common with several other media outlets MailOnline identified where and how the Grenfell Tower fire started,” which will save the police and fire authorities a lot of time and trouble, no doubt.
Most complaints have related to the privacy and harassment clauses of the Editors’ Code, and some have focused on intrusion into grief or shock. For more on these stories, see:
- Inforrm’s blog, Law and Media roundup — 19 June 2017
- Guardian, Sun journalist ‘impersonated Grenfell Tower victim’s friend at hospital’ and Mail Online story about alleged cause of Grenfell fire prompts around 1,300 complaints
- Press Gazette, Sun ‘completely refutes’ claim its reporter impersonated relative of injured Grenfell Tower resident to get interview (not sure the refutation amounts to more than mere denial)
- Zelo Street, Sun Hospital Blag Could Be Fatal
- iMediaEthics, Did Sun Reporter Pose as Friend of Grenfell Tower Fire Victim?
Legality of drones
One of the incidental Grenfell Tower stories was how drones had been used to survey the building in the immediate aftermath of the fire, while the structure was considered too risky to enter on foot. (See Newsweek, London firefighters used drone to battle Grenfell Tower blaze )
It’s just one of the hundreds of uses to which these remotely controlled airborne vehicles have been put, but some of these are not so positive. We have discussed the legal implications of their military use, eg in targeting enemy commanders or terror group chiefs (see Weekly Notes — 11 September 2015 and Weekly Notes — 16 January 2017)
But there are also legal questions about the use of consumer and commercial drones, and their regulation, which has been the subject of a recent episode of the Australian legal podcast, The Law Report broadcast by the ABC. This is well worth a listen, or you can read the transcript. In one case, a woman was skinny dipping in the swimming pool in her back yard when a drone came and hovered above her, obviously prying in a rather pervy way. In some cases, drones used to photograph plots of land and properties, perhaps for sale or rent, or other surveying purposes, have strayed or misbehaved, intentionally or otherwise. There are also risks associated with collisions with other airborne objects, such as aircraft, or injury to people or animals when the device flies too low. The subject of Drones and the Law was discussed in the context of the UK in BBC Law in Action last year.
Not surprisingly, there are regulations in Australia, which the ABC programme refers to. In the UK, regulation is by the Civil Aviation Authority. The regulations for recreational drone flights are contained within the Air Navigation Order 2016.
McKenzie Friends research published
A research study looking at the role played by Fee Paid McKenzie Friends in private law children cases has been published. The study, entitled A study of fee-charging McKenzie Friends and their work in private family law cases, was commissioned by the Bar Council, and was carried out by an independent team of researchers, Leanne Smith, Emma Hitchings and Mark Sefton (from Cardiff and Bristol universities). You can read the full report (pdf) here.
The key finding was that much of the work done by so-called ‘professional’ McKenzie Friends is ‘advice’ and support out of court, rather than the use or abuse of ‘rights of audience’ (which are not rights but privileges, or even licences, ie entirely at the discretion of the judge). However, that does raise the question whether the giving of legal advice, which is unregulated, should be treated as a ‘reserved occupation’ (like ‘advocacy’) that only a qualified and regulated lawyer can do.
The study has been helpfully reported and summarised in Barrister magazine: New research shows paid McKenzie Friends operating mostly outside the courtroom
The Transparency Project has a useful roundup page with further links: Fee Paid McKenzie Friends Research
Publication of the research may have prompted the search engine inquiries which boosted the hits to an earlier post on this blog, which has been ‘trending’ recently: McKenzie Friends: a litigant’s guide
- Legal Voice: Poor behaviour on the part of McKenzie Friends ‘a minority concern’
- ICLR blog: McKenzie Friendly fire?
- ICLR blog: McKenzie Frenzy: regulating the irregulars
SRA fails against Leigh Day
The long-running and costly disciplinary hearings of the Solicitors Regulation Authority against solicitors firm Leigh Day and three of its lawyers in connection to their role in controversial Iraq war compensation claims has ended with the solicitors being cleared of all 20 charges brought against them. According to Roll on Friday:
Leigh Day, its co-founder Martyn Day, partner Sapna Malik and associate Anna Crowther were accused of professional misconduct for the manner in which they pursued claims of torture and murder against British soldiers made by Iraqi civilians. The claims resulted in the Al-Sweady public inquiry in 2014 which cost £31 million before it transpired that the allegations were untrue.
The scandal toppled human rights lawyer Phil Shiner, who worked with Leigh Day representing Iraqi clients in parallel legal actions. Shiner was found guilty of 22 misconduct charges in February and struck off.
A spokesman for the SRA confirmed that its three-year investigation and subsequent 7-week prosecution before the Solicitors Disciplinary Tribunal (SDT) was its most expensive ever, eclipsing the previous record of £1.4m.
- Legal Futures: Leigh Day exonerated after longest and most expensive disciplinary tribunal prosecution ever
- Richard Moorhead, Lawyer Watch: Martyn’s Day, for a personal take on the verdict.
Dates and Deadlines
The second annual IPSO lecture, featuring John Whittingdale (who served as Secretary of State for Culture, Media and Sport from May 2015 until 14 July 2016) will now take place on Thursday 6 July from 6pm.
It will take place at Church House, Dean’s Yard, Great Smith St, Westminster, London SW1P 3NZ. For more information, email: email@example.com
Law (and injustice) from around the world
The New York Daily News reported recently that an appeals court had rejected a claim by Nonhuman Rights Project on behalf of two chimpanzees for recognition of their “legal personhood”.
A five-judge panel of the Appellate Division First Department in Manhattan ruled unanimously that the two creatures living in captivity Upstate, Tommy and Kiko, were not entitled to rights enjoyed only by humans.
“The asserted cognitive and linguistic capabilities of chimpanzees do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions,” Justice Dianne Renwick wrote.
The ruling also noted that nonhumans “lack sufficient responsibility to have any legal standing.”
We reported an earlier hearing in the case in Weekly Notes — 24 April 2015. In Tommy’s case the New York’s Court of Appeals on 4 December 2014 had dismissed an earlier appeal from the ruling by Justice J Sise on 18 December 2013 that he was not in law a person: see Weekly Notes — 15 December 2014.
War crimes judge convicted of being terror group member
Judge Aydin Sefa Akay, a UN war crimes judge who sits at The Hague, was detained last year in the wake of the failed military coup. He was later charged and convicted for membership of the ‘Gulenist Terrorist Organisation’ (FETO) and sentenced to seven years and six months imprisonment, though this has been suspended on humanitarian grounds.
Writing in the Law Society Gazette, Eduardo Reyes reported that:
The Mechanism for International Criminal Tribunals, The Hague, said: ‘The judgment of first instance is subject to potential appeal and review proceedings at national and international levels, and the verdict has therefore yet to acquire legal finality.’
It added: ‘The arrest of Judge Akay in September 2016, his detention and legal proceedings against him are inconsistent with the assertion of his diplomatic immunity by the United Nations, as well as the binding judicial order by the mechanism to the Government of Turkey issued in January 2017.’