Edward Fennell’s Legal Diary – Edition 38
Friday December 11th 2020 Edition 38
Diary news, commentary, insights, appointments, blogs, webinars and arts from the legal world
SHORT THOUGHT FOR THE WEEK – BUSY, OR WHAT?
The latest figures for activity in the legal sector shows a bewildering variation of fortunes. The stand out figures are that property and insolvency work has crashed (by 31% and 18% respectively) while tax has grown by almost 14% and commercial work is still very healthy.
How this will shake out over the next six months remains to be seen once Brexit and the Covid-cure are factored in.
But it’s a funny old world and while crime and litigation are allegedly the hardest hit sectors of all anecdotal evidence suggests a rather different picture. For example, one highly respected and experienced criminal barrister outside of London described the state of play as follows:
“I’m working harder than ever at the moment, with a tsunami of work coming my way. The CPS have taken their in-house advocates out of court for the next six months so we are having to cope with cases that haven’t been properly prepared or dealt with and most are way out of date. They demand written Advices on evidence, etc., like yesterday.”
So there are already winners and losers emerging from this crisis. And where any single individual ends up looks like a complete lottery.
The LegalDiarist
IN THIS WEEK’S EDITION
LEGAL DIARY OF THE WEEK
+ Political nouse in law firms
+ Data protection post-Brexit
+‘Leasehold Enfranchisement’ tome finally arrives
+Irwin Mitchell’s cuddly image
LEGAL GUIDE OF THE WEEK – Eversheds Sutherland’s Guide to Public Inquiries
LEGAL INSIGHT OF THE WEEK – Do we have to be Covid-jabbed?
COURT REPORT OF THE WEEK – Inaccessibility of British Courts
LEGAL VIDEO OF THE WEEK – Lady Dorrian
THE LEGAL DIARY OF THE WEEK
Political Nouse
Much is being made of the recruitment by DLA Piper of Andy Tyrie – now, of course, Lord Tyrie – the former chair of the Competition and Markets Authority. It is certainly part of a growing trend for highly experienced politicians (or those with political skills and experience) to be signed up by law firms. Above all, it reflects the widening of the skillsets offered by top firms who recognise that clients want more than just legal advice – they want strategic law counsel. As DLA Piper itself says, ‘[Lord Tyrie’s] appointment is a reflection of increasing client need to operate in fast-changing regulatory environments, where understanding and adapting to political opportunity and risk is as important as receiving high quality legal and regulatory advice. Businesses are, as a consequence, looking to their law firms to provide support that goes beyond traditional legal services. This is a trend that is here to stay.’
In the midst of the Brexit crisis, however, it would be hard to judge whose opinion could be trusted. Almost nobody has better political or legal credentials than Ken ClarkeQC – now Baron Clarke, the former Chancellor of the Exchequer and holder of most other top jobs in Cabinet – but just a few days ago he tweeted regarding the Brexit negotiations “I understand EU officials are trying to track down Noel Edmonds to help facilitate a ‘deal or no deal’ decision. Mr Blobby is already in attendance from the UK government.” When such incisive insider insights come for free who needs to pay for them via a law firm?
Date protection: I’ll show you mine if…..
As we all sit on the edge of our seats waiting for Sunday’s decision on that deal here’s an interesting contribution from Kennedys around the issue of data protection post-Brexit.
Looking ahead the firm comments that once an EU adequacy decision has been obtained (on the UK’s level of data protection), the UK should adopt “a much more pragmatic approach to adequacy criteria and adequacy decisions for third countries than the EU does.” The firm goes on to say that while there is a balance to be struck between the rights and freedoms of individuals and the free flow of data across borders, the EU adequacy decision-making process has, in its view, been too bureaucratic and conservative. “In 25 years, the EU has made 13 adequacy decisions, seven of which relate to small states which are adjacent to the EU. Only two of those countries are in the top 10 trading partners of the EU.
“More than 100 countries globally have data privacy laws, and while those laws vary widely in their level of protection for personal data, and very few offer a truly equivalent standard of privacy protection under the GDPR, there are many jurisdictions that the UK could declare adequate without significantly compromising the rights and freedoms of UK citizens.”
Whether this is the freedom for the UK to set its own rules that Boris has in mind remains to be seen. But it is certainly an interesting example of what that freedom might mean.
Big Red Christmas Book
This being the season of good cheer my spirits rose earlier this week as a large box arrived on my doorstep from Thomson Reuters. In years gone by such boxes often contained (although not necessarily from Reuters) a jolly, small bottle of gin or something similar. Imagine then my feelings when what emerged was a jolly heavy copy of the seventh edition of Hague’s ‘Leasehold Enfranchisement’ edited by Anthony Radevsky (Barrister, Inner Temple) and Damian Greenish (Consultant Solicitor to Forsters LLP).
However my initial disappointment swiftly changed to wonder at the sheer size of the endeavour of the book. As Martin Rodger QC comments in his foreword, this is the fifth revision of the work in two decades and reflects the torrent of new rules and regulations in this complicated field.
Having a family member who not so recently wasted several thousands of pounds in trying to pursue a commonhold the LegalDiarist had some direct interest in the subject. Again as Martin Rodger observed, “Commonhold has not yet caught on and an alternative approach involving extensive changes to enfranchisement has been recommended.” Added to which, he says, “Along with many more egregious abuses, the cost of exercising enfranchisement rights has contributed to a wider climate of dissatisfaction with leasehold tenure.”
So while I cannot suggest that Reuters will intoxicate me this Christmas I can say they are keeping me hot under the collar.
IMage Rites
Wow! I almost smashed my boiled egg to smithereens at Monday breakfast time when I saw the family-friendly ad from Irwin Mitchell in The Times.
First it was the firm’s strap line which I had not noticed before ‘Expert Hand – Human Touch’. Are you sure this is a law firm we’re talking about here? And then there was the image – a stay-at-home dad jiggling a small blond child on his knee. ’Protect what matters most’ it proclaimed ‘In challenging times we are here for you, your family or your business’.
This is not law firms – or at least Irwin Mitchell – as we are accustomed to seeing them. Mind you the ad also carried on it the logo of ‘England Rugby’ with the slogan ‘Official legal partner’. That’s more like it. I reckon those headbangers are much more IM’s style and will be giving them plenty of work in the years to come.
LEGAL GUIDE OF THE WEEK – THE PRACTICAL GUIDE TO PUBLIC INQUIRIES
Eversheds Sutherland’s Public Inquiries & Investigations team, together with Dr Emma Ireton of Nottingham Law School have authored a new guidebook The Practical Guide to Public Inquiries, as a stage-by-stage guide on the process of public inquiries,
Aimed at legal practitioners, participants, witnesses and those with an interest in public inquiries the book offers practical advice and guidance on the functions, processes and procedures of a public inquiry. Based on the team’s considerable experience from inquiries such as the Bloody Sunday Inquiry, Mid Staffordshire NHS Foundation Trust Inquiry, Leveson Inquiry and Grenfell Tower Inquiry it provides guidance on the life-cycle of a public inquiry. The topics covered range from the appointment of the chair to selecting an appropriate venue, to using experts and publishing inquiry findings.
“We know first-hand how challenging public inquiries can be, often dealing with personal, emotional and sensitive topics,” commented Isabelle Mitchell, a principal associate at the firm. “With this context, it’s crucial public inquiries are facilitated in a proper and professional way, and we hope the book goes some distance in ensuring this by offering very real, practical advice.”
Meanwhile Sir Robert Owen, Chair, Litvinenko Inquiry observed, “The authors are to be complimented on an impressively comprehensive and authoritative guide to public inquiries. It addresses every aspect of their establishment and conduct, and provides clear guidance supplemented by eminently practical checklists, a boon to the busy practitioner. Such a guide is much needed, and will prove invaluable to all those involved in the wide range of statutory, non-statutory and other forms of inquiry that have become such a feature of our public life.”
More information about The Practical Guide to Public Inquiries is available here.
LEGAL INSIGHT OF THE WEEK : COVID JAB – WHOSE RIGHT TO DECIDE?
Sarah Calderwood, Human Resources and Employment Lawyer at Slater Heelis discusses some of the legal issues which might surface in the months to come and what the rules are when it comes to employers asking staff to get the vaccination.
This week has brought exciting advancements in the treatment of Covid-19 and as the first 800,000 doses of the vaccine are rolled out in the coming weeks, the UK public is beginning to ask about their rights and whether their employer can force them to be immunised.
Under current health and safety legislation, employers have a duty to protect the health of employees, anyone on their premises and anyone else effected by the business. Existing vaccination guidelines state that if a risk assessment finds a risk of exposure to biological agents and effective vaccines exist, employers should offer to provide immunisations to those who are not already immunised, however, employees are at liberty to refuse immunisation. Here are some of the other questions that might arise:
Does my employer need to know if I have been vaccinated against Covid-19?
“Employers may have to make data protection considerations as the Information Chief Commissioner’s Office (ICO) has confirmed that an employee’s health information is special category personal data. In the context of vaccinations, a permitted ground for processing special category data would be for heath purposes. However, employers must ensure they are handling their employee’s data with care and the ICO advises that employers only need to obtain confirmation whether the employee has had the vaccine and collecting any more data is unnecessary and excessive.”
Can my employer add an immunisation clause to my contract?
“If employers want to make the Covid vaccine a contractual requirement, changes in the terms of the contract would need to be agreed by staff. Employers enforcing this change without employees’ express and implied agreement would be in breach of contract and employees would be entitled to resign and claim constructive unfair dismissal. Employers could find it difficult to show this change in terms as reasonable and may struggle to introduce this type of agreement for existing employees.
“If employers were to introduce an immunisation clause into new starters’ contracts, it would have to be in a reasonable manner which would include consultations with any employees worried about the vaccine for any reason.”
Employers cannot force their staff to get the vaccine or discipline those who refuse to do so.
“Overall, vaccinating employees without their consent would be criminal assault and probably be a repudiatory breach of contract. Although there is no case law, dismissing an employee because they do not want a Covid vaccine would likely be considered unfair dismissal as it is unusual for an employer to force staff to undergo a medical procedure. Vaccine requirements could also subject employers to discrimination claims as individuals may not be able to get vaccinated on health or religious grounds.”
What can an employer do to encourage vaccination?
“Employers who are keen for their staff to be immunised should write a non-contractual policy outlining the benefits of getting the vaccine and any arrangements for staff to be immunised. Any employees who refuse the vaccine could be met privately to explain the benefits again, but employers should not force or discipline staff who refuse.”
Sarah Calderwood is a Human Resources and Employment lawyer at Slater Heelis with over 17 years advising on employment related issue. To find out more, visit the website .
COURT REPORT OF THE WEEK: DIFFICULTY OF ACCESS TO BRITISH COURTS
A new report from Bolt Burdon Kemp highlights deficiencies in courts’ lay-out and facilities for serving the disabled
British courts are highly user-unfriendly when it comes to the disabled and those with special needs according to an investigation by specialist lawyers Bolt Burdon Kemp The new research assessed 444 courthouses in England, Wales and Scotland on 11 accessibility criteria, namely the availability of:
- Disabled parking
- Accessible toilets
- Lifts
- Hearing loop systems
- Interview rooms
- Baby changing facilities
- Video conference facilities
- Wireless internet access
- Witness support facilities
- And offering wheelchair access and allowing assistant dogs into the building
The main finding of the research was that only 2% of courthouses across Britain were able to meet all 11 of the criteria listed above. This is a total of eight courthouses, three of which are based in the South West of England:
- Aberystwyth Justice Centre (Wales)
- Leeds Combined Court Centre (North East England)
- Manchester Civil Justice Centre (Civil and Family Courts) (North West England)
- Plymouth Combined Court (South West England)
- Taunton Magistrates’ Court, Tribunals and Family Hearing Centre (South West England)
- Weston-Super-Mare County Court and Family Court (South West England)
- Wigan and Leigh Magistrates’ Court (North West England)
- Worcester Combined Court (Midlands)
According to the research:
Over three-quarters of courthouses (84%) are not fully accessible for wheelchair users.
People who use wheelchairs or other mobility aids, or suffer from chronic pain or fatigue, may find it difficult to navigate courthouses. Particularly so if the courthouse is large or is made up of several floors, requiring both time and effort that could become exhausting. Not to mention any lack of availability of functional lifts if hearings are taking place on upper floors.
In fact only 16% of courthouses in England, Scotland and Wales are fully accessible, offering wheelchair access, disabled parking and accessible toilets. Again the South West leads the way, with 30% of its courthouses being fully accessible:
To help those who might have to grapple with the court system Bolt Burdon Kemp has created an interactive walkthrough of a typical British courthouse. The experience is intended to help people with hidden and visible disabilities prepare for their upcoming hearing. It also takes into account people with care responsibilities – another demographic that may find it difficult to attend court hearings.
See the new interactive experiencewhich guides you through the stages of attending a typical British courthouse hearing, with a focus on people with hidden and visible disabilities.
LEGAL VIDEO OF THE WEEK – LADY DORRIAN
See LEGALLY HERS new film interview with of Lady Dorrian, sponsored by Ashurst.
As the Lord Justice Clerk, Lady Dorrian is the most senior woman judge in Scotland. Her appointment to this role made history in 2016 as no woman had ever served at this level in the Scottish legal system before.
Leeona Dorrian’s status as a trailblazer began decades prior when she became the first woman to serve as Advocate Despute in the Faculty of Advocates