Edward Fennell’s Legal Diary – Edition 98

Friday 25 March 2022

Diary news, commentary, insights, appointments and arts from the legal world

SHORT THOUGHT FOR THE WEEK – DRIVING ON THE WRONG SIDE OF THE LEGAL ROAD?

Quite rightly the war in Ukraine dominates the news agenda and will continue to do so for many weeks to come.

But behind the scenes other, more ordinary, life goes on. Take what is happening on our roads. In this week’s Legal Diary we feature the way developments in technology are changing our transport system in terms of Smart Motorways, self-driving cars and the EV-Charging infrastructure.

The worry is that – over-shadowed by Ukraine and as with Covid – everything else gets forgotten about. But the law must not be allowed to lag behind. Lives are at risk here as well.

The LegalDiarist

IN THIS WEEK’S EDITION

LEGAL DIARY OF THE WEEK

– Collegial support from the Bar to Ukraine

– Ukraine a Game-Changer on Human Rights Act Debate

– Baby You can Drive My Car (Except on a not-so Smart Motorway)

– GSC Marks 50 Not Out

– Legal help for those with Special Educational Needs

LEGAL COMMENTS OF THE WEEK on the Chancellor’s Spring Statement, the Dubai ‘Princess Haya case’, the on-going’ Whiplash’ consultation, EV infrastructure and the long-awaited arrival of ‘No fault’ divorce

LEGAL APPOINTMENTS OF THE WEEK at Morrison & Foerster and Dechert

LEGAL DIARY OF THE WEEK

Collegial Support from the Bar to Ukraine

As and when the courts system resumes in Ukraine it will be able to enjoy a new, closer relationship with barristers in England and Wales. This follows the announcement by the Bar Council of a project to ‘foster dialogue, solidarity and support between barristers in England and Wales and Ukrainian lawyers.’

A key part of the project will encourage Chambers to identify projects and work opportunities for Ukrainian lawyers who have either decided to stay in Ukraine or who have fled to other countries. There will also be support for ‘sister organisations’ including the two Bar associations in Ukraine and those in other Eastern European countries who are close to the ‘front line’ with Russia. Also included will be a ‘supportive dialogue’ between the Young Bar in England and Wales and its counterparts in Ukraine.

Of more immediate significance, however, will be the gathering of names of barristers and judges in England and Wales who want to sponsor Ukrainian lawyers to come to the UK and, where possible, match them with Ukrainian colleagues through the Bar Council’s partnership with the Ukrainian National Bar Association.

The Bar Council points out that it has already received names of Ukrainian lawyers and their families who want to come to the UK, and has been contacted by barristers and judges in England and Wales wanting to sponsor Ukrainian lawyers.

Ukraine a Game-Changer on HRA Debate

The Russian invasion of Ukraine has added another dimension to the debate around the Government’s proposal to repeal the Human Rights Act, according to researchers at the University of Exeter Law School who claim that he plan to replace the Act with a ‘British Bill of Rights’ would “fatally undermine” protection of rights under the European Convention on Human Rights in domestic law.

This would “wind the constitutional clock back to the 1990s” says the Exeter academics and the result would be that people would then have to bring claims to the European Court of Human Rights in order to vindicate their rights. “Any weakening of human rights could be seized upon by those countries with poorer records as justification for their own egregious denial of human rights,” say Exeter’s David Barrett, Richard Edwards and Natalie Sedacca. “It would send all the wrong signals at a time that the UK must be seen as vigorously defending human rights and the European Convention on Human Rights.”

In defending the current legislation the Exeter lawyers say that the Human Rights Act has blended justice with British constitutional traditions and principles, and has “has had a largely positive influence and impact”.

“Our judges now talk the language of Convention rights and make a significant and positive contribution to the development of European human rights,” said Richard Edwards. “The HRA has promoted a judicial dialogue between British judges and the Strasbourg court. It provides an elegant mechanism for the reconciliation of the tension between the constitutional principles of the rule of law and parliamentary supremacy.”

Consequently the repeal of the HRA and its replacement with the proposed provisions in the form of a ‘Bill of Rights’ would reverse this development.

Baby You can Drive My Car (Except on a not-so Smart Motorway)

For anyone – including the LegalDiarist – who has to drive regularly along Smart Motorways such as the M3 which boast no hard shoulders the recent research findings from lawyers at accident claims lawyers Bolt Burdon Kemp will not come as too much of a surprise.

According to BBK dozens of fatalities could occur on the UK’s roads if the right checks and legal frameworks are not quickly put in place – not least because self-driving cars are being made legal this Spring. 

The starting point is that recent so-called Smart innovations have created a right legal mess. For example, the removal of the hard shoulder means that motorists could quite easily find themselves stranded in the middle of upcoming traffic – with potentially fatal consequences. As a result, Highways England could be reported to the police for criminal manslaughter. “By removing the hard shoulder on smart motorways, the government effectively declared that smart motorways are faultless, and able to quickly and reliably detect if motorists are stranded on the road,” points out the firm.

The problem is that this sounds suspiciously similar to the Post Office scandal in which it was declared that the Fujitsu HORIZON accounting system could not possibly go wrong. ‘The computer does not make mistakes’ was the official line. As we now know, it did – horrendously.

Similarly  the Automated Lane-Keeping System (ALKS) which was introduced for cars could create grey area for legal liability.  No wonder then that motorists’ concerns about  motorway safety increased by 50% from 2020 to 2021.

Legal regulations need to evolve fast, says BBK. “It is crucial that changes are made to the Highway Code before self-driving cars are made legal,” they say.

For the full report go to:  https://www.boltburdonkemp.co.uk/our-insights/posts/smart-motorways-where-are-we-now/?

GSC Marks 50 Not Out

A quick ‘Happy Birthday’ to City firm GSC Solicitors LLP which is celebrating it’s 50^th year in business. In an era of ever-increasing size it’s great to a firm which doesn’t succumb to giantism but sticks to its identity with 12 partners and 43 staff and continues to thrive with a carefully curated collection of high class clients.

In GSC’s case that includes household names such as Universal Music, Channel 4, EMI, Phonographic Performance Ltd (PPL), The Performing Rights Society (PRS) and Gratte Brothers Group, plus a number of high performance businesses and individual private clients. 

Originally founded as Green David Conway & Co the title changed to GSC with the arrival of the current Senior Partner, Saleem Sheikh .  “Our founders knew that people do not fit into neat boxes and so neither does our approach to the law,” says Sheikh. “Just as they were 50 years ago, our clients are innovators and thought leaders, entrepreneurs and international business leaders. They may be just starting out or they are significant family businesses or global brands.”

A timely reminder then that you don’t have to have offices across every continent – or even Russia – to be a success.

Legal Advice on Special Education Needs Now Available On-line

A grant of £10,000 has been made by theWorshipful Company of Information Technologists (WCIT) to the charity Support SEND (for children with Special Education Needs and Disabilities) to help parents ‘manage the endless flow of tasks involved in accessing their children’s human right to an education’.

Having a better understanding of the law and legal processes is a key part of this process and the Support SEND ‘Kids hub’ is a place for parents to access advice from SEND law experts, SEND professionals and other parents who have direct experience of navigating a complex legal process.

“By making legal insights around every stage of the Education Health Care Plans (ECHP) application process freely available, Support SEND Kids hopes to help schools, parents and local authorities ensure that every SEND child is able to claim their right to learn, develop and fulfil their potential,” says the organisation.

The news follows the launch by Support SEND Kids of an on-line version of the ‘Noddy Guide’, a no-nonsense guide to SEN law reimagined by the authors David Wolfe QC and Leon Glenister in accessible Q&A format. This aims to both make the law accessible and to use an interactive Q&A format to highlight inconsistencies and emerging issues in SEN law with which the SEND community can engage. “The EHCP process by design lacks transparency and is overly bureaucratic, with the result a fragmented and inconsistent application of the same law running across over every local authority in England,” said Janvi Patel, co-founder of Support SEND Kids, “Helping parents to manage the anxiety generated by this complexity and giving them more piece of mind and time to spend on things other than list building is key to what we are trying to achieve.” 

To support the launch a short film has been released featuring barristers discussing what they see happening to SEND law. For more go to:

https://talk.supportsendkids.org:449/player/0a4e89c2-f76f-4788-84c4-cf7b183cc10b

or email contact@supportsendkids.org

LEGAL COMMENTS OF THE WEEK

TOPIC: The Chancellor’s Spring Statement announcement.

COMMENT BY: Stephanie Hall, Partner, Davitt Jones Bould

“With the controversial Planning White Paper seemingly dropped earlier this month, and the cost-of-living crisis high on the political agenda, it is perhaps not surprising that the Spring Statement is short on planning content. It feels very much that we must wait for further announcements, such as the Energy Security Strategy next week and the Levelling Up Bill later this year, to understand the Government’s vision for the next chapter of the planning system.

“With the nationwide net zero carbon target drawing ever-closer, coupled with rising energy prices amidst uncertainty of supply, next week’s Energy Security Statement takes on even greater significance. Will Boris overrule certain Cabinet members and take a fresh look at onshore wind energy, which paragraph 158(b) of the NPPF effectively bars? Or would this be an unpopular move at a time when the PM is looking to restore confidence amongst the electorate in advance of key local elections?

“Similarly, meaningful action is needed to bring levelling up to life. The Levelling Up White Paper published in February is a stark curtailment of the Government’s ambition to reform the planning system and it remains to be seen how the Government intends to increase the supply of housing and whether (another) new infrastructure levy is the best way to support new development.

“It again appears to be the familiar refrain of “watch this space” – will the Government be brave and put aside short term political gains to make meaningful and lasting improvements to the planning system?

COMMENT BY: Elizabeth Small, Partner, Forsters

“A surprisingly upbeat Spring 2022 Statement with a much welcomed £3,000 increase in the NIC threshold. Advisers and businesses will be digesting the Tax Plan (published today) and looking forward to the Autumn Statement which promises improved R&D tax credits and capital expenditure initiatives.  Meanwhile, home owners were given a boost with a zero VAT rate for energy saving materials including solar panels.”

TOPIC: The finding by the High Court that the ruler of Dubai, Sheikh Mohammed bin Rashid al-Maktoum, had domestically abused Princess Haya and its ruling that he should have no substantive influence over their children’s upbringing.

COMMENT BY: Deborah Jeff, Head of the Family Law department, Simkins LLP.

“This judgment is a reminder of the wide implications of domestic abuse and coercive/controlling behaviour. The court now recognises the lasting impact, not just on the partner who experiences it, but on children and their wellbeing.”

“The court has taken the bold but undoubtedly correct step of ensuring an abusive parent cannot make decisions with their mother regarding what is in the best interests of their children – the right outcome after many years of abuse, giving the family time to heal and minimise the ongoing impact of their father’s historical behaviour.”

“It’s encouraging to now see the courts recognising the coercive/controlling element which for many years was so difficult to have taken seriously in our courts.”

TOPIC: The government’s response to ‘Part 2’ of the Whiplash consultation

COMMENT BY: Qamar Anwar, Managing Director of First4Lawyers

“While this response has been a long time coming, we welcome the fact that the government has finally seen sense and decided against further reform.

“It would be madness to force any more change upon a sector still dealing with the fallout from the Official Injury Claims portal, which has been blighted by problems since its launch in May. While the government’s intention was to eliminate the need for lawyers, data shows it has had quite the opposite effect with around 90% of people still seeking legal assistance before bringing a claim.

“The reports hints that more reforms could be further down the track. However, the MoJ should focus on fixing a broken system before it attempts any more ill-advised changes and given past failures should commit to meaningful consultation with the industry before it does.”

TOPIC: The legal implications of rapidly expanding the charging infrastructure for electric cars.

COMMENT BY: Richard Gordon-Brown, Partner, UK and European Patent Attorney and Design Attorney at the intellectual property law firm EIP.

“This will be a boost for those developing the technology that underpins the EV charging ecosystem, whether that be EV manufacturers and their suppliers, energy companies, or other specialist businesses.  Removing barriers to greater take-up of EVs will increase the market for their products.  This will give them confidence to invest further in R&D to create new innovations from which consumers will also benefit, such as faster ways to charge vehicles.  In addition to potentially seeing more sales of their own equipment, patenting their innovations could open up opportunities to license out their technology to others wishing to implement it in return for licence fees.  This could lead to healthy revenue streams for some, particularly if any such patented innovations become standardised across the market.”

COMMENT BY:Aidan McClean, co-founder and CEO of UFODRIVE and author of  ELECTRIC REVOLUTION.

The UK Government’s new Electric Vehicle Infrastructure Strategy, with the promise of a tenfold expansion in EV chargepoints by 2030, is highly welcome yet frustratingly light on details.

The announcement of the Strategy has not come a moment too soon – for both the EV market and Britain’s efforts in battling climate change. When the Government acts decisively, it not only gives consumers the confidence to continue buying EVs, but also gives the private sector the impetus to invest, build and contribute towards this future.

This is a great start, but more will be needed – and it is nothing without telling the truth about Electric Vehicles; how vital they are for tackling climate change, and how practical and realistic they can be given the right infrastructure and environment. We hope to see the Government lead with this message.

TOPIC: The arrival of ‘No Fault’ Divorce on April 6 – the biggest reform to Divorce Law in 50 years.

COMMENT BY: Joanne Edwards, Head of Family and Partner at Forsters

“This long-awaited reform is to be embraced whole-heartedly. It is not about making divorce easy and marriage disposable, as opponents have cautioned; it is about making it kinder for the 100,000 or so couples who divorce each year and, arguably more importantly, the 225,000 or so children of those couples.  For too long, starting the divorce process with discussions about who was to “blame” for the end of the marriage has been a source of discord and made resolving more important things (like arrangements for the children and money) very much more difficult.  

“Whilst, in isolation, these changes to divorce law are important, they will only have stronger potency if coupled with (a) reform of the law around how money is divided on divorce, including a legislative framework for pre-nups and (b) proper public funding for financially vulnerable individuals to take some initial legal advice and be appropriately signposted as to their “rights”.

“There are other factors that make a move to no fault divorce timely this Spring. One of them is the fact that since the legal aid cuts in 2013, many people in family proceedings represent themselves.

“With the onset of the pandemic, backlogs in the family court have reached record levels and the system is struggling to cope.  It is difficult for an unrepresented person drafting a divorce petition to know they don’t have to go to town with their behaviour particulars, or an unrepresented Respondent to know they won’t likely be adversely affected if they don’t defend the petition, often leading to contested court proceedings about the divorce.  All of that will fall away. The move to online divorce lends itself to a simplified process.”

LEGAL APPOINTMENTS OF THE WEEK

  Marie-Claire Strawbridge has joined Morrison & Foerster as a partner in its Antitrust Law/Competition and National Security practices. She was previously at Freshfields Bruckhaus Deringer where she had extensive experience of UK and EU competition law.

“Marie-Claire is a terrific addition to the London office,” said Paul Friedman, Morrison & Foerster’s managing partner for Europe. “Adding a dedicated CMA-focused competition and FDI practice is key in a post-Brexit context, and essential to our burgeoning M&A practice. The emerging UK regulatory approaches around competition enforcement and the new UK-specific FDI regime introduced by the National Security and Investment Act mean Marie-Claire’s experience will greatly benefit our clients.”

Strawbridge graduated in Law and French from the University of Glasgow and holds a Master’s in European Legal Studies from the College of Europe in Bruges, Belgium. She is qualified in England & Wales and registered with the Brussels bar.

Judith Seddon is joining Dechert LLP as a partner in the ‘white collar’ practice of its London office. Formerly with Ropes & Gray and Clifford Chance Ms. Seddon graduated from King’s College, London, with First-Class Honours and subsequently received an LL. M. from Yale followed by a Bachelor of Civil Law from New College, Oxford.

 She is now recognised as one of the UK’s leading white collar practitioners, and has represented corporate clients, financial institutions and individuals in some of the most significant and complex SFO and FCA investigations in the UK, and by prosecuting authorities around the world. .

 “Judith is one of the biggest, most respected names in the European investigations market, and we are delighted she is joining us,” London-based white collar partner Roger Burlingame. “Her experience further deepens our already unmatched transatlantic capability, and her expertise advising financial institutions, corporations and individuals cements our spot in the UK’s white collar elite.”

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