Edward Fennell’s LEGAL DIARY
Diary news plus insights, commentary and appointments from the legal world
28 February 2025
Editorial contact: fennell.edward@yahoo.com
SHORT THOUGHT FOR THE WEEK:
Time to Come Clean
Two significant events occurred last night regarding the fight for justice by ordinary people against a defensive and evasive state.
On TV the Corby pollution scandal of the 1990s was explored in ‘Toxic Town’ while in Liverpool a new Northern division of the law reform charity JUSTICE was launched at an event featuring a host of campaigners local and national.
Hillsborough, Covid-19, Grenfell, the infected blood scandal, the Post Office Horizon – the list goes on. Unlike in authoritarian states the truth does tend to come out, finally, in Britain – but, by heavens, it is a painfully slow and enormously difficult process and requires superhuman persistence (including from public-spirited lawyers).
What they are primarily up against is the dogged resistance of state employees who fight tooth and nail against legitimate questioning by the public. That is why – as was pointed out last evening – imminent changes to the law which impose a legal duty of candour on public authorities and officials to tell the truth and proactively cooperate with official investigations and inquiries could be a game-changer.
Such a development in the law should mean a transformation in the culture and a commitment to ‘come clean’ as the characteristic of public service.
One can but hope it comes good.
The Legal Diarist
In this edition
+ LEGAL DIARY OF THE WEEK
Last Night’s TV – Another Legal Drama
Is ‘Legal Certainty’ a Thing of the Past?
Close the Border?
Future for Law in Hong Kong
+ LEGAL COMMENT OF THE WEEK
on schoolboy return, ‘Stop and Search’, the Omnibus U-turn by the EU, maternity rights, OnLine Security and BADR
+ APPOINTMENTS OF THE WEEK
at Clarke Willmott
LEGAL DIARY OF THE WEEK
Last Night’s TV – Another Legal Drama
One year ago it was ‘Mr Bates vs the Post Office’ which rocked the political and legal conscience and now, as you might have seen last evening on Netflix, ‘Toxic Town’ is being aired to expose another profound failing by a British corporate body – the pollution left over from the demolition of the former British Steel site in Corby which led to numerous birth defects.
A key figure in the story is campaigning lawyer Des Collins (played on TV by Olivier Award-winning actor, Rory Kinnear) who has also been a high profile recently in the infected blood scandal fighting for justice for the victims of the NHS and civil servants’ incompetence.
Gratifyingly Collins received recognition for his persistence earlier this week during a BAFTA screening of the Corby docudrama which charted the 11-year battle to establish that the local Council had been negligent.
“I’m delighted for the families that Netflix has brought this environmental scandal to greater public prominence,” said Collins. “ If there’s one lesson I’ve learned from my career it’s that it often takes a bright spotlight being determinedly shone on malpractice for justice to be served. Sadly, however, I fear the current government’s drive to build new homes, many of which will be on decommissioned land, will mean the suffering of these Corby families will be repeated, in similar ways for similar reasons, by others before too long. I hope I’m wrong.
“Meantime, I’m honoured to support the families’ recognition, by both Netflix and BAFTA, of their enduring emotional and physical struggles, some 25 years on. I pay tribute to the bravery shown by the children and their families to get to where they are today.”
Is ‘Legal Certainty’ a Thing of the Past?
Whatever your view of the current President of the USA he certainly makes waves. But his wave-power depends on him tapping into attitudes, and preferences – or you might call populist prejudices – which are already on the move in the wider world. So that is why his rampage against sustainability measures has had an instant echo in Europe through the EU’s proposed rollback of corporate sustainability obligations for monitoring human rights and environmental abuses. Companies will also no longer have to terminate harmful business relationships.
Of course supporters of all these established policies are not backing down without a fight and Mary Robinson, the former UN High Commissioner for Human Rights, and the Business & Human Rights Resource Centre are voicing their opposition in particular to the European Commission’s weakening of the Corporate Sustainability Due Diligence Directive (CSDDD),
Mary Robinson said, “Von der Leyen’s new Commission’s attempt to eviscerate these sustainability laws must not be agreed by the European Parliament and by the member states.” Meanwhile Phil Bloomer, executive director of the Business & Human Rights Resource Centre commented, “The EU’s sustainable finance framework has been a beacon of long-term competitiveness and responsible governance. Yet, at a time when climate and inequality crises demand bold leadership, instead of strengthening these vital protections, the Commission is bowing to irresponsible business lobbies and rolling back progress under the guise of simplification. The proposed weakening of the Corporate Sustainability Due Diligence Directive (CSDDD) and other sustainability laws is not just a bureaucratic adjustment – it is reckless deregulation which undermines trust, legal certainty, and Europe’s global leadership.”
Maybe in the era of Trump any idea of ‘legal certainty’ is already an illusion. Time to adjust to ‘move fast and break things’ – especially the law. (For more see below comment by Lucy Blake, Partner at Jenner & Block)
Close the Border?
In due deference to our Scottish reader we have to report that the Law Society of Scotland has declared that the country’s newly announced plans for legal aid ‘fail to reflect the urgency and scale of the crisis in access to justice’.
So no surprises there you might say. Matters are desperate on both sides of the border. It’s just that perhaps the Scottish professional body expresses its alarm with a bit more colour.
Ian Moir, the Co-Convener of the Law Society’s Legal Aid Committee, said, “The Scottish Government has finally acknowledged that legal aid is in trouble. However, at a time when legal aid is burning to the ground, the Scottish Government has put in an order for a bucket rather than calling the fire brigade.”
Moir went on to say that the measures proposed were ‘nowhere near good enough’, in either scale or timeline. Additional financial support is needed now if legal aid is to have any chance of surviving long enough for a long-term reform process to play out.
“Legal aid is a vital part of Scotland’s justice system, and its long-term survival is vital for access to justice so people can get legal support regardless of their financial circumstances. It’s a problem that gets worse each week as solicitors choose to retire or seek work elsewhere. We support absolutely the need for legal aid reform, but the dire state of the sector now can’t be ignored. The plans published fail to recognise the urgency of this crisis.”
Where are they ‘seeking work elsewhere’, one wonders. South of Hadrian’s Wall things are probably even worse.
Future for Law in Hong Kong
Given the carnage going on across the world one wonders when the real commercial war will break out between China and the USA – and where will Western law firms be left in those conditions?
Historically, of course, Hong Kong always stood a little aloof from East-West tensions but its independence of late has been severely undermined. So it is interesting to see that CMS has just announced that a merger is taking place of its Hong Kong operations through the integration of Lau, Horton & Wise LLP and CMS Hasche Sigle, Hong Kong LLP.
Unusually for a law firm CMS actually has a motto ‘Law -Tax -Future’ and maybe in this context it is the emphasis on ‘Future’ which is so important. Steven Wise, the new Office Managing Partner at CMS Hong Kong LLP, has commented, “The combination represents a significant step forward for the CMS brand in Hong Kong. By bringing together the expertise of Lau, Horton & Wise and CMS Hasche Sigle, Hong Kong, we are creating a stronger platform that allows us to deliver a broader and more integrated range of services that clients need. The unified CMS Hong Kong team will offer clients the best of both worlds: strong local knowledge paired with truly global insights.”
Offering the ‘best of both worlds’ always seems to be a canny way to conduct oneself but for how long will it be possible to straddle the different segments into which the globe is dividing? “By combining our strengths, we can deliver comprehensive and agile solutions to meet the complex challenges faced by businesses both locally and globally,” says Caryn Miller, Joint Managing Director of Asia and the Middle East at CMS UK.
Time will tell.
LEGAL COMMENT OF THE WEEK
TOPIC: The decision by the High Court to support parents who wanted their 13-year old boy to remain at a boarding school in Ghana following fears that he was involved in gang and criminal activity in the UK.
COMMENT BY: Amean Elgadhy, Barrister, 4PB
“This case raised a number of interesting legal issues, relating to the participation of children/young people in proceedings and when it may be appropriate to interfere with a parents’/carers exercise of parental responsibility. It was interesting to note that whilst Mr. Justice Hayden considered it was wrong for the parents to have ‘duped,’ YP into travelling to Ghana that there appeared to be some empathy with the predicament of the parents and ultimately, that factor did not weigh heavily against the child remaining in Ghana.
It estimated that many young people from first- and second-generation backgrounds are often returned to their parents’ country of origin, in an attempt to keep them safe from the ills of gang culture and cared for by family members.
It will be interesting to see whether or not there are more cases of this nature brought before the Courts. Every case will no doubt have to be considered on its own merits but it will be interesting to see how this area develops and what other factors may lead to a different outcome, such as the particular stability of the foreign country concerned and/or the standard of the education system there.“
TOPIC: The Metropolitan Police’s new Stop and Search Charter
COMMENT BY: Julian Hayes, criminal lawyer, Berris Law LLP
“With the rise in knife crime and resultant loss of young lives the police had been placed in the invidious position with, on the one hand the public demanding that action be taken, yet on the other when taking the most obvious step of stop and search come under some justifiable criticism for being overzealous and falling into the trap of racially stereotyping suspects.
The Charter is welcome to provide the police and communities with a form of working ‘agreement’ as to how to effectively manage a valuable crime prevention tool but to ensure that the public can have confidence in its integrity and efficacy. This will require the police to train and in some cases re train officers to ensure it is approached with courtesy and respect.
However, this is only one small cog in knife crime prevention. The only truly effective method of crime prevention is education and for that resources need to be put into youth centres and schools.”
TOPIC: The impact of the Omnibus package to sustainability laws announced by the European Union
COMMENT BY: Lucy Blake, Partner at Jenner & Block
“Companies had hoped the proposed Omnibus would simplify and clarify the myriad of overlapping EU ESG laws. However, far from harmonising the different laws or providing guidance on areas of uncertainty, the proposals have in fact introduced still more confusion by relitigating adopted legislation.
These changes undermine the efforts and resources many businesses are already currently investing into compliance and leave many companies unsure how to proceed. This uncertainty is compounded for those businesses who operate in both Europe and the U.S. , where there is a backlash against ESG in certain states with companies facing litigation, enforcement action – as well as negative attention from the White House and Congress – for considering ESG factors in their decision making.
Notwithstanding the unpredictability of the current climate, the extensive criticism of the Omnibus – including from industry – suggests that the dilution of the European ESG norms is far from a fait accompli. Companies in scope are not off the hook yet so should not take their foot off the pedals when it comes to investing in their compliance programmes.”
TOPIC: Effective communication of maternity rights by employers following survey which suggests major increase in job-loss
COMMENT BY: Adele Coupland, employment lawyer, Freeths
“These survey results point to concerning trends about the treatment of women by employers during pregnancy and maternity. However, many of the negative experiences highlighted can be avoided with consistent communication.
“We work with employers to ensure that they communicate effectively with their employees on maternity leave, so it isn’t a case of ‘out of sight out of mind’.
“We suggest that before a woman goes on maternity leave her employer should agree how much contact they would like and what method of contact should be used.
“During maternity leave employees should be kept updated with relevant information about their role, events, and workplace updates, unless they request otherwise, and employees should always be informed about promotion opportunities and vacancies.
“Ahead of a return to work we encourage employers and employees to use their Keeping in Touch days and communicate with each other about what adaptions could be made to ensure the workplace is appropriate for their return, such as is there a room to express milk in.”
TOPIC: The Criticism of OFCOM’s ‘checklist’ approach to the OnLine Security Act
COMMENT BY: Iona Silverman, Media Partner, Freeths
“Headlines too often remind us of the dangers that the internet, and social media in particular, pose to under-18s. Concerns relate to the content being pumped out by algorithms to impressionable minds, but also to the age of the children viewing this content. Most social media sites require users to be 13 in order to have an account, but we know from the Advertising Standards Authority’s 100 children report, that children lie about their age online in order to access social media. Consequently, much younger children are being exposed content, and to adverts for age-restricted products, that we know impacts their mental health and goes on to fuel self-harm, suicide or crime.
Social media companies need to start taking responsibility for the content propagated by their algorithms. Traditionally they have taken the view that they can’t police content, and that it is the responsibility of those that upload it to ensure it is safe. That approach is no longer tenable. The Online Safety Act requires social media entities to protect users, in particular young people, from online harms.
Ofcom continues to take steps towards providing guidance on how the Online Safety Act will be enforced, most recently proposing measures that tech firms should take to tackle online harms against women and girls. Crucially, if Ofcom finds that a service provider has contravened its obligations under the Online Safety Act, it has the power to impose a penalty of up to 10% of qualifying worldwide revenue or £18 million (whichever is the greater) and require remedial action to be taken.
While this is hugely welcome, Ofcom needs to act fast. Given the rapid changes to technology and AI, as well as the shifting political landscape, Ofcom will need to ensure that its guidance is forward-thinking and flexible and that it encourages positive use of new technologies to counter online harm. Crucially, Ofcom needs to start to impose significant fines for failure to comply, in order to give the Online Safety Act the teeth that it needs to effect any meaningful change. If Ofcom isn’t able to keep pace with technology, we may see more pressure to move towards a blanket ban on social media for under 16s, as we have recently seen in Australia.”
TOPIC: The impact of the changes to Business Asset Disposal Relief (which will increase from 10 per cent to 14 per cent from 6th April this year).
COMMENT BY: Kim Klahn, corporate partner, Clarke Willmott LLP
“There was speculation that BADR might even be abolished in the Autumn Budget so the CGT increases that have resulted are not as drastic as many had feared. We therefore expect to see increased activity among some owner managers wanting to take advantage of the current BADR rates in the first quarter of 2025. We also expect that a lot of people will be looking to invest their money following an exit – and this could boost deal activity from an investment and fundraising perspective.
“There may also be more interest from shareholdings selling into an Employee Ownership Trust, which is CGT exempt. Being aware of key dates in a deal is critical for tax purposes, so it is important for our clients to be aware of the incoming changes and when they will take effect.”
APPOINTMENTS OF THE WEEK
Clarke Willmott LLP
Laurence Lacey has been appointed head of energy, infrastructure, and natural resources at national law firm Clarke Willmott LLP. Formerly with Watson, Farley & Williams where he focused on green technologies including wind and the generation of power using methane from capped, disused landfill sites, Lacey joined Clarke Willmott in 2007 initially to work on the repowering of wind farms, as well as supporting both developers and landowners to build new solar farms supported by the previous feed-in tariff subsidy regime.
In his new role the aim is to build on the legacy of his predecessor, Priscilla Hill, and expand the firm’s impact in the energy, infrastructure, and natural resources sectors at a time when there are growing questions about the depth of support for sustainable energy in the USA and the EU.
“We do a lot of work for energy developers as well as for house builders and property developers, as planning and legislative requirements mean that new developments need to be as low carbon as possible,” said Lacey. “Alongside the development of energy projects, such as solar, battery storage and hydrogen, we also get involved in district heating schemes, including here in Bristol, and advising on the impact of some of the new credit trading schemes. This work sits alongside our involvement in major infrastructure projects, such as the Newquay Strategic Route, where we provide advice on site assembly, development and funding (including by way of grant).”
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