Weekly Notes: legal news from ICLR — 31 July 2017

This is our last round up of recent legal news and commentary for this Trinity law term, with updates on access to justice, Brexit and corporate manslaughter. The next Weekly Notes won’t be until the beginning of the Hilary Term in October, but we’ll continue posting case notes, reviews and occasional points of law over the vacation.

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The Supreme Court took a wrecking ball to Grayling’s tribunal paywall

Access to justice

Employment tribunal fees order unlawful

Last week the UK Supreme Court by its judgment in R (UNISON) v Lord Chancellor [2017] UKSC 51 took the wrecking ball to a large chunk of Grayling’s paywall. In a judgment written by Lord Reed, with whom the other justices concurred, supplemented by another by Lady Hale, the court ruled that the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893), which imposed fees totalling £1200 to enable claims involving issues such as unfair dismissal, equal pay or discrimination to be heard by an employment tribunal, was unlawful under both domestic and EU law because it had the effect of preventing access to justice. You can read the court’s own summary here. (A link to ICLR’s case summary will be added shortly.)

Lord Reed said, at para 66:

The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the “users” who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings.

That seems a pretty good description of MOJ thinking under Grayling’s leadership. Lord Reed explains further, at para 68, in a paragraph that will surely be quoted in constitutional law textbooks for decades to come:

At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.

There’s also a pointed reference to the role of parties’ names in reported case law, at para 70, refuting the idea that litigation is of benefit only to the litigants and serves no wider purpose in a common law jurisdiction based on precedent:

The written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved, and each of which is relied on as establishing a legal proposition. The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people.

The court’s decision was welcomed, somewhat caustically, by another former Lord Chancellor:

Unison’s legal team deserve all the praise they have been getting, including notably Unison’s Head of Legal @Adam_Creme, for continuing to battle on a point of principle, despite defeats in the Divisional Court and Court of Appeal.

The decision means the government will have to refund something like £27m in fees already paid, as well as compensation to others who, by reason of the fees, may have lost an opportunity to pursue claims. However some newspapers, taking their cue from some business leaders, reacted negatively, suggesting that the decision was a bad one for business and would encourage unmeritorious claims (a point specifically addressed in the judgment).

Litigation Futures reported that the civil courts recorded a surplus of more than £100m in 2016–17, according to the annual report of HM Courts and Tribunals Service (HMCTS). Much of that comes from the new high court fees. Tribunals, on the other hand, made a loss. Their loss will be all the greater now. The report notes, however, that

“A fees strategy review is underway to seek to balance the interests of all court and tribunal users and the taxpayer in the wider context of funding for the system overall.” (p 74)

Brexit

Talks stalled

As to substance, The Times Brexit Briefing reported last week that

There was a distinct air of frustration in the closing press conference from the EU’s chief negotiator, Michel Barnier about the lack of clarity in the British position. “We require clarification on the financial settlement, on citizens’ rights, on Ireland,” he said.

The lack of a British position paper was particularly frustrating, said Barnier, and it was necessary for one to be produced rapidly. But that would be difficult, said The Times, when the UK “cabinet is divided on what we should offer and there is no common government position”.

Chickening out of a chlorinated trade deal

Concerns over the safety of the chlorine washes used by US chicken producers to kill bacteria including salmonella has long been a sticking point in transatlantic trade discussions.

Liam Fox was challenged by Campaign Open Britain, a pro-EU group, last week to put his mouth where his money seems to be, by eating a US-style chlorinated chicken in public, in a stunt which (if performed) would be reminiscent of a former Conservative minister, John Gummer, asking his daughter to consume on camera a beefburger made with British meat in the early days of the BSE contamination scare in 1990. What became of Cordelia Gummer, the Mad Cow girl?, asked the Daily Express on the 25th anniversary of this dubious event, reminding readers that:

Six years later a link between BSE and a human form of the disease was officially confirmed in the Commons. By then an EU ban on British beef, which was not fully lifted for a decade, was already in force and the industry was brought to the brink of ruin.

The girl does not seem to have been adversely affected by the ordeal, according to the paper, although

Officially 177 Britons and more than 50 others worldwide have died from Variant Creutzfeldt-Jakob disease (vCJD) — the human form of BSE.

Cordelia’s brother Ben, who did not (so far as history relates) eat the hamburger (or indeed drink the Kool Aid), has nevertheless inherited his father’s interest in conservative politics, became an MP, and served as Minister for the Cabinet Office and Paymaster General from July 2016 until June 2017.

Tory story — collapse of stout party

The Tories are turning Brexit into a humiliating shambles. They called a referendum when they didn’t have to, they accepted the result, they willed Brexit, they promised Brexit, and now they’re comprehensively failing to organise it.

Crime

Grenfell Tower fire: corporate manslaughter charges likely

there are reasonable grounds to suspect that each organisation may have committed the offence of corporate manslaughter…

This is not unexpected (as we reported earlier: Weekly Notes — 19 June 2017. See also Lawyer 2B, The Grenfell Tower fire: the legal ramifications). Nor does it rule out charges being brought against other organisations or companies, including the various construction companies involved in the tower’s recent refurbishment and the fitting of what has proved to be highly combustible cladding.

But David Lammy MP, who called for a full criminal investigation shortly after the disaster, suggesting the likelihood of corporate manslaughter having occurred, is now saying this may not be enough. He points out that under the Corporate Manslaughter and Corporate Homicide Act 2007, on which the police seek to rely, convicted organisations can be heavily fined, as well as publicly shamed, but no one goes to jail:

“A fine would not represent justice for the Grenfell victims and their families. Gross negligence involuntary manslaughter carries a punishment of prison time and I hope that the police and the CPS are considering involuntary manslaughter caused by gross negligence.”

However, gross negligence manslaughter is a common law offence which is harder to prove, and the likelihood of particular individuals being identified as responsible for breach of a duty of care is therefore slender.

Fire safety tests failed

Fake compensation allegation

Law (and injustice) from around the world

America

Hocus Potus !— or Hire’m Fire’m

Since the current White House Chief of Staff at the time was someone called Reince Priebus, he had by necessary implication been sacked. The First Tweeter of the United States (FTOTUS) duly confirmed this 11 minutes later.

According to the New York Times (not a fan) “Mr. Priebus’s ouster was the latest convulsion in a White House that has been whipsawed by feuds and political setbacks in recent days.” (Interesting new word: whipsawed.)

All this followed another swift job-grab about a week before, when FTOTUS appointed former hedge funder honcho Anthony Scaramucci (aka The Mooch) as White House communications director, forcing the very loyal but often ludicrously parodied Press Secretary Sean Spicer to resign. (See Atlantic, The Scaramucci Takeover.) Spicer could spin till his head fell off, but he couldn’t stomach reporting to Scaramucci, it seems. Nor did Priebus last long, after a tirade in which, by accident or design, Scaramucci spilt the beans (or his own bile) on the then still chief of staff, whom he accused of being paranoid, as well as Trump’s chief strategist, Steve Bannon, whom he accused of autofellatory ambition, in a telephone call to a New Yorker reporter, Ryan Lizza, on the topic of unauthorised leaks. The phone call was itself a form of leak, and people have wondered if it was sanctioned by the Mooch’s boss, FTOTUS himself, since it seemed to predict very accurately the likely fate of Priebus (whose alleged paranoia was therefore justified); and contained threats to sack lots of other staffers in order to drain the swamp of potential leakers. It’s a rollercoaster read.

Pakistan

[Im]moral justice

Jirgas, a kind of council formed of local elders, often settle disputes in rural Pakistan. However, they are illegal and have been condemned for a series of controversial rulings — including ordering so-called “honour killings” and past incidents of “revenge rape”.

The idea that two wrongs made a right is a common enough one in criminal justice systems, even in quite advanced civilisations (to misquote the Bible, “vengeance is mine, sayeth the law”), but the idea that the wrongs should be visited on innocent people instead of the actual perpetrators seems especially barbaric. Two points seem worth making.

First, in answer to many of the more prejudicial comments on the BBC’s story, this is not an aspect of Sharia law. It’s a hangover over from ancient tribal customs to which a cracked veneer of religious respectability has been applied. (And if you think “that couldn’t happen here”, try watching or reading The Handmaid’s Tale.)

Second, it is against the secular law in Pakistan, not part of it. However, in its coverage of the story Reuters observes that “In most of the country, jirgas are tolerated but not recognized by the formal courts and police.” This reflects the fact that:

Pakistan has a centuries-old tradition of quick justice handed down by gatherings of local elders, known as jirgas or panchayats, seen by many villagers as preferable to the often-cumbersome and corrupt formal legal system.

In this case, the police have arrested a number of people who may, perhaps, be tried and punished. However, Pakistan’s record of enforcement of the law in such matters is patchy: in an earlier case in which an innocent woman was “revenge raped”, most of the perpetrators were acquitted by the Supreme Court because of a lack of prosecution evidence. The victim, Mukhtar Mai, complained that the police bungled the case. She has since become an outspoken women’s rights activist and runs a school for girls in her village.

That’s it for now. Our thanks to all who flagged up stories, via their blogs (which we always try to acknowledge) and via Twitter (where useful tweets are retweeted).

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The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

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