Edward Fennell’s Legal Diary – Edition 40
Friday 8 January 2021 Edition 40
Diary news, commentary, insights, appointments and arts from the legal world
SHORT THOUGHT FOR THE WEEK
– CAPITOL ATTACK MORE THAN JUST VANDALISM
The storming of the Capitol in Washington this week will bookend Donald Trump’s Presidential career. But the scale of the shock to the American psyche is so signifiant because it was an assault, as one US politician put it, on ‘hallowed ground’.
Western secular societies no longer revere the historic ‘sacred spaces’ of churches and cathedrals. Instead, encouragingly for lawyers, the places where politicians gather to ‘make law’ have come to fill that gap with the legislative process itself having an almost sacramental status.
‘The Fall of the Priests and the Rise of the Lawyers’ (Bloomsbury) by Philip R Wood QC (Hon) formerly of Allen & Overy traces the way that law has supplanted religion in holding society together. By attacking the Capitol Trump’s insurgents were tearing down America’s very faith in itself.
The Legaldiarist
In this week’s edition
– THE LEGAL DIARY OF THE WEEK
+ ‘In Her Words’ from The Next 100 Years
+ Baker McKenzie’s ‘Levelling Up’?
+ Domestic Abuse Bill lacks stranglehold
+ Surveillance WFH
– ONES TO WATCH
+ The Political Jury from Gresham College
+ Post Brexit Competition Enforcement from BIICL
THE LEGAL DIARY OF THE WEEK
In Her Words
The Next100 Years project, which celebrates the advances of women in the law, shows no sign of running out of steam with the publication of the book ‘In Her Words’ which is described as ‘A unique snapshot of women in the legal profession from around the world at a defining point in their history’.
Consisting principally of photographs of women lawyers which were taken during the project’s global Face the Future ‘photography day’ back in March 2019 the book is a validation of the width of women’s participation in the legal industry. The images are accompanied by written reflections from each individual about their journey in the profession and their hopes for the future.
To order go to https://first100years.us11.list-manage.com/track/click?u=88b273ce621586ba86aaa5812&id=c618a47040&e=30ef329c7d
Lure of London undermining regional levelling up?
Congratulations to Kate Stonestreet who has just been announced by Baker McKenzie as its new Global Chief Operating Officer. As well as being further evidence (see the story above) of women advancing to the most senior ranks in top law firms it is also significant in terms of British regionalism.
Part of the Government’s ‘levelling up’ agenda lies in increasing opportunities for those hailing from outside of London and the South East. Encouragingly, Stonestreet gained her degree at Northumbria University and has deep northern roots. As she herself commented, “Coming from a small village in Yorkshire in the North of England and joining the firm in a relatively junior role in Hong Kong, I am a story of what is possible at Baker McKenzie.”
Having been recruited in 1995 Stonestreet subsequently enjoyed a global career. But success inevitably led her to London where she has been based since 2004.
This highlights, however, the conundrum of regional ‘levelling up’ in the law where bright young people from the regions inevitably seem to head to the capital. Successful women lawyers can support other women. But must successful lawyers from the regions inevitably leave their roots to transform into ‘southerners’? As the co-lead on the firm’s social mobility program that might now be a question for Stonestreet to mull over.
Domestic Abuse Bill still insufficient?
With the Domestic Abuse Bill going through the House of Lords this week Sarah Jane Lenihan of Stowe Family Law, points out that this will include, for the first time, a statutory definition of domestic abuse which will include emotional, coercive and controlling behaviours and economic abuse. “All of which we have seen a rise in during the pandemic” she adds.
Among other things the Domestic Abuse Bill removes the defence of ‘rough sex’. However, as Lenihan points out, there remains much debate as to whether the bill really goes far enough given that it fails to make ‘non-fatal strangulation’ a separate offence.
“Changes should be implemented promptly, particularly as we continue to live in lockdown conditions,” says Lenihan. “We need new legislation to be passed and implemented as soon as possible to help support the victims once they find the strength to seek help.”
The Surveillance Trap
Now we are back in lockdown and facing ever greater WFH can we expect a rise in the use of surveillance techniques by employers eager to keep track of what we’re getting up to (or not, as the case may be).
According to Tim Jones, head of the employment team at West Midlands law firm Higgs & Sons, great care needs to be taken in the introduction of such systems. “It’s expected that the pandemic will be the catalyst for lasting change in the workplace culture,” he says.“This is a big change for the UK and it’s completely understandable that some employers will have concerns about productivity levels and potential distractions.”
Although some software can be useful in showing how members of staff are using their time, Jones is urging businesses to be very mindful of the requirements of Article 8 of the European Convention on Human Rights which affordsemployees the right to private and family life. Now incorporated into UK law by the Human Rights Act 1998 it means that covert surveillance is subject to tight controls. “The question is, how can this law be reconciled with employee surveillance happening in their private homes?” asks Jones.
Any measures introduced must be “necessary and proportionate to a legitimate aim” says Jones. This could include assessing an employee’s productivity and performance, reducing the risk of misconduct, limiting the businesses’ exposure to liabilities and protecting confidential information of the business.
So might this be one of those areas where UK laws could start to deviate from our friends’ across the Channel. Need to keep an eye on it.
UPCOMING EVENTS – ONES TO WATCH
THE POLITICAL JURY
Monday evening 11th January 6pm-7pm (online or watch later)
Serving on a jury is one of the most stimulating but excruciating undertakings one could imagine. And thanks to its secrecy (at least in the UK) it is largely terra incognita even to researchers. But that will not stop Thomas Grant QC, Visiting Professor of Politics and Law at Gresham College, from reflecting on the patchy history of the jury system in England on Monday evening (11th January 6pm-7pm, online or watch later) in his lecture on The Political Jury as part of the college’s Politics of the Courtroom series.
“The arc of the jury’s development has been, in broad terms, to entrench its independence from the judge and the litigants, and entrench its freedom of decision making, and to make it more representative of the nation from which it is drawn,” says Professor Grant.
One of the points Grant will examine particularly is the willingness of juries to disregard judges’ directions in order to ‘do justice’. But sometimes judges are just as confused by the evidence as the juries. Certainly the Legaldiarist’s own experience of jury service has borne out Professor Grant’s observation that, “If the system we have means that some people are acquitted who should have been convicted, because a jury was baffled by the evidence or bamboozled by the advocacy of defence counsel, then so be it. The alternative is infinitely worse.”
To register go to https://www.gresham.ac.uk/lectures-and-events/political-jury
COMPETITION ENFORCEMENT POST-BREXIT
Monday 25 January 2021 | 16.00 – 17.00
Now that Brexit’s ‘done’…..
The British Institute of International and Comparative Law presents a panel discussion on Competition Enforcement after Brexit: Agreements, Unilateral Conduct and State Aid
This is the second BIICL panel discussion on competition enforcement post-Brexit and will consider the enforcement issues that arise as a result of Brexit in unilateral conduct and state aid enforcement as well as enforcement against anticompetitive agreements, It will provide an overview of the competition enforcement relationship between UK and EU post Brexit.
Chair
Sir Jonathan Faull, Brunswick Group
Speakers
- Alexandros Stratakis, Van Bael & Bellis
- Ann Pope, Competition and Markets Authority
- Helen Jenkins, Oxera
This event is convened by Professor Ioannis Kokkoris, Co-Director of the Competition Law Forum, BIICL and Centre for Commercial Law Studies, QMUL
The event is free but pre-registration is required. For more information, go to: www.biicl.org/events
AND FINALLY
As 2021 gathers pace do – and we talk about more than Covid (possibly) – please send in your news, views and legal analysis and commentary to
fennell.edward@yahoo.com
We look forward to hearing from you for next week’s edition.