Edward Fennell’s Legal Diary – Edition 47

Friday 26 February 2021 Edition 47

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

SHORT THOUGHT FOR THE WEEK

WFH, WFA, WTF?

Apologies to the Legal Diary’s regular reader for returning once more to this topic but where trend-setting and super-cool dude Mishcon de Reya leads, this humble Legal Diary has to follow. As you will have seen from the legal press, the firm’s managing partner James Libson has just issued new guidance that the firm will now permit all its staff and lawyers unlimited remote and flexible working. Given that the end of lockdown is in sight it looks like we can now say goodbye, definitively, to WFH. Instead, welcome with flags and tickertape WFA (‘working from anywhere’).

As usual the lawyers are not the first movers on the new trend. Sensibly. they have allowed other brave souls to take that risk – but they are not far behind. Just last week for example Spotify announced that it would be allowing its workforce to work remotely permanently beyond the pandemic. Paul Bennett, CEO of Perchpeek, an AI-powered relocation app, predicts a surge in WFA policies this spring as businesses look ahead to the future. “Putting the employee front and centre of where they do their best work allows for the hiring of a more diverse work force, allows [organisations] to retain top talent and allows for the repurposing of offices to be more focussed on social collaboration,” he said. “We’re on the cusp of one of the greatest migrations in working history.”

So how important will a law firm’s address be in the future? All those debates we used to have about being a ‘City’ or ‘West End’ firm – or even a ‘regional’ firm – already seem so tawdry and 20th century. All the LegalDiarist can suggest is, ‘Don’t renew the season ticket’.

The Legaldiarist.

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– Revving Up Posh Drivers

– Slaving A Way (of life)

– Freelances gain better prospects

– GROWing Up – A mentorship scheme which works

– Democracy (not) on Princes Street

+ LEGAL ANALYSIS OF THE WEEK

1. BREXIT BREACHES BRITS’ RIGHTS ABROAD

2. WHAT BREXIT MEANS LEGALLY FOR BUSINESS

+ APPOINTMENT OF THE WEEK

+ LEGAL ARTWORK OF THE WEEK: Clifford Chance’s Printmaking Prize

+ WEBINARS OF THE WEEK

THE LEGAL DIARY OF THE WEEK

– Revving Up Posh Drivers

 At Editorial meetings for the Legal Diary the assumption is that our regular reader drives a Porsche so this story is right up your autobahn. Leigh Day, normally regarded as the champion of the poor, weary and downtrodden but now one of the key firms pursuing Volkswagen over those dodgy emission tests, has just announced that it is widening its claim for alleged NOx emissions cheating to include Porsche and Audi brand vehicles.  This follows Porsche being fined €535 million by German prosecutors for cheating diesel emissions tests after finding “negligent breaches of supervisory duties” at the company.

“The group claim we are [now] investigating relates to newer and larger models of diesel vehicles manufactured by the Volkswagen Group and includes Porsche, Audi, Volkswagen, Volkswagen commercial[etc,],” said  Leigh Day solicitor Shazia Yamin  “This is the second group claim against the Volkswagen Group, and one of several emissions cases being investigated by Leigh Day. The allegation that manufacturers would deliberately cheat such tests and in doing so pollute our air with unlawful levels of NOx is incredibly serious .We urge anyone who believes they may have a claim to go to the Leigh Day website and complete the form to check if they are eligible.”

So expect a rush at https://www.leighday.co.uk/latest-updates/news/2021-news/leigh-day-launches-emissions-group-claim-against-porsche/

Slaving A Way (of life)

 Baker McKenzie was Headline Sponsor for the 2021 ‘Stop Slavery award’ which was held virtually this week. The firm has been involved with the awards since their launch and helped to develop the questionnaire for the Stop Slavery Enterprise Award (won this year by Hewlett Packard Enterprise) which highlights best practice in corporate commitment and reporting. “While COVID-19 has had a devastating effect on the world’s population, it has brought to light the prevalence of modern slavery in society – whether in the clothes we wear, the food we eat, the products we use every day,” said Alyssa Auberger, Baker McKenize’s Chief Sustainability Officer. “As a firm, we are proud to support the work that is being done across the world to highlight what is one of the most overlooked global issues of our generation, and to fight for those who need help.”

But there is no scope for complacency. In fact quite the opposite. Yesterday the Business & Human Rights Resource Centre (BHRRC) said that the UK Modern Slavery Act had failed in its objective to protect victims of forced labour due to the trifling level of reporting required from companies and lack of government enforcement. Depressingly after collecting five years’ worth of statements  the centre’s  Modern Slavery Registry revealed no significant improvements in companies’ policies or practice.“The Modern Slavery Act doesn’t place any legally binding standards on companies to eliminate forced labour and the meagre requirements on companies aren’t enforced,” says Thulsi Narayanasamy, Senior Labour Rights Lead, BHRRC “This points to a troubling lack of commitment to addressing these abuses. Tens of millions of workers are in forced labour – working in mines, on farms, in factories; to produce the everyday goods in our cupboards and wardrobes – bad businesses must be compelled to root this out of their supply chains.” 

For more go to: https://www.business-humanrights.org/en/

Freelances gain better prospects

As WFA (working from anywhere – see Short Thought above) increases its grip on the legal profession, the lines might become blurred between those who are in full-time employment and their cousins who, for one reason or another, prefer a more flexible engagement. This applies particularly to outfits such as Vario, Pinsent Mason’s flexible offer based on freelance lawyers, paralegals and other professional services consultants. And it has been underlined further by the firm’s announcement that Vario will start to offer learning and career development tools (under the title ‘Vario Advance’) to selected members of its workforce.

This is an important development. One of the drawbacks for freelances has been their exclusion from the professional development opportunities available to the permanent team. By now making some of this available in conjunction with ‘Bridge’ (a performance management platform) there are wins on both sides – the freelances gain more scope for career development while the Vario skill base is enhanced. “We believe we are one of the first – if not the first – contract lawyering provider to offer flexible training on this scale,” said Matthew Kay, Managing Director of Vario. “The combination of an innovative ALSP (alternative legal services provider) with a leading global law firm means that we benefit from the infrastructure, knowledge and expertise of Pinsent Masons. It’s because of this that we are now able to offer Vario Advance….it also demonstrates our ongoing commitment to investing in and developing our freelance community.”

Yes, WFA for an ALSP – that’s the enticing future which beckons us all.

GROWing Up – A mentorship scheme which works

Mentoring is increasingly recognised as the way to enhance career prospects for young lawyers especially those who have no ‘inherited’ familiarity with the profession.

So the GROW legal mentoring initiative, set up a year ago by Justin Farrance, a trainee solicitor with Allen & Overy, has much to commend it.

In an important breakthrough Coventry University has now announced that it will be the first university to join the scheme. “GROW supports students from the UK and the US by breaking down barriers when entering the legal profession,” said a spokesperson for the programme. “Students are assigned a mentor who is able to offer them tailored advice based on having something in common with them, such as the law firm they aspire to join, degree background, having the same alma mater, or membership of the same under-represented community.”

 Sharan Dhadda, associate lecturer and Coventry Law School’s liaison with GROW, said, “This initiative is a means to connect aspiring lawyers with legal professionals. It allows students to gain an insight into what working life is truly like and provides them with a direct line with people who have taken a similar path. The driving force behind this programme is to enhance social mobility, diversity and inclusivity in the legal industry. The legal profession can seem somewhat daunting, however Grow helps to minimise that by connecting the two worlds.”

For more go to https://growmentoring.wixsite.com/grow

Democracy on Princes Street?

“In functioning democracies, an independent legal profession is a much-valued cornerstone of the rule of law,” said Sternford Moyo , the president of the International Bar Association (IBA) this week. “Unfortunately, where governments wish to silence dissent, we have witnessed many instances of the abuse of regulatory power, with lawyers being jailed for carrying out their professional duties, simply because they represent a client who is critical of the government or head of a nation. The news reports are numerous and impossible to ignore. An independent legal profession, free from governmental interference, is essential.”

Now, I know that you are probably thinking that these remarks were directed at the Sturgeon regime in Edinburgh. Good guess but not quite right. They were actually aimed at a panel of high-ranking United Nations Member States’ representative as a response to a  new report on barriers to achieving the UN’s 2030 Agenda for Sustainable Development. Mind you, it probably ticks some boxes for an ‘independent’ Scotland too.

LEGAL ANALYSIS OF THE WEEK: BREXIT

(1) BREXIT BREACHES BRITS’ RIGHTS ABROAD

suggests Leon Fernando Del Canto

New post-Brexit visa rules are having significant repercussions on workers in the creative industry. In an open letter by arts union Equity, signed by British stars including Sir Ian McKellen and Julie Walters, the British government is being urged to lobby for the restoration of visa-free work in the EU.

The pandemic has caused significant work loss to Britain’s creative industry, and now Brexit red tape is requiring them to apply for short-term work permits to work freely in Europe.

Under ‘non-EU citizens rules of stay’, a person can visit visa-free for maximum 90 out of the last 180 days. The rule is very strict and illegal stay could result in banishment from the country for at least three years. There is no leeway for family emergencies, dealing with property damage or any other emergency. Information of all stays are recorded in immigration databases and staying longer than the visa allows in any of the 26 Schengen zone countries will not go unnoticed.

Against this backdrop, an important consideration is that almost half a million British citizens own second homes within the Schengen zone – many belonging to creative professionals who purchased them before 31 December 2020. We are currently considering the applicability, of the the first Protocol, Article 1 of the European Convention on Human Rights (ECHR) – of which the UK is still a member – which states that people have a legal right to peacefully enjoy the possession of their home.

This means that by denying individuals from peacefully enjoying their possession, these EU countries are possibly opening themselves up to litigation by potentially infringing British citizens’ human rights.

The EHCR defined that the article in question contains three distinct rules, including a/ the general principle of peaceful enjoyment of property; b/ the rule that a deprivation of possessions should be subject to certain conditions; and c/ that states are entitled to control the use of property in accordance with the general interest by enforcing such laws as they deem necessary for this purpose.

Preventing someone from peacefully enjoying their property, independently of whether it is their main residence, appears to directly contravene the right enshrined in the article. 

It is fundamental to take expert legal advice before starting any actions and consider that the person must have used all the remedies in the State concerned that could provide redress for the alleged violation. This is a process that may take several years to be completed.

Although the process may take some time and there is still some research to be done to establish strong specific grounds, we are of the opinion that the case may have some merits and may be worth to be explored by anyone particularly affected by this rule.

Leon Fernando Del Canto is an international tax barrister based in London. He is the founder of Del Canto Chambers, an international tax legal Firm with a country focus on the UK and Spain. More details on chambers can be found athttps://delcantochambers.com/

(2) WHAT BREXIT MEANS LEGALLY FOR BUSINESS

With the Covid crisis covering up and confusing some of the worst effects of Brexit, AMY PEACEY clears the fog over the Channel to remind us of what businesses importing and exporting goods to and from the EU must now do.

Since 1 January 2021 EU law has ceased to apply in the UK, but, so far at least, the practical impact of Brexit on business has been commercial, not legal.

The immediate issues facing business relate to arrangements for trade with the EU. Signed on 24 December 2020, the UK and EU trade relationship is now governed by the EU-UK Trade and Cooperation Agreement (TCA).

So what are the key issues for import and export of goods?

• Preferential treatment – The TCA facilitates tariff free trade between the UK and EU, BUT this only applies to goods which comply with TCA rules of origin i.e. that the goods originate in the EU or UK. There are detailed provisions for determining where components are made and where products are assembled, which must be proved by obtaining a supplier’s declaration. In addition, in order to import or export goods to and from the EU, businesses require an economic operators’ registration and identification number (EORI).
• New customs regime – Customs declarations are required for imports and exports. Now operating as a “third country”, a UK business importing goods from any EU country must complete detailed customs forms and comply with a customs regime. Although such compliance will be familiar to businesses used to importing goods from outside the EU e.g. China or the US, this is a new requirement for trade with the EU.
• VAT – the rules relating to imports and exports to and from the EU have changed and the special rules that related to trade with EU countries no longer apply.
• Product standards – The TCA provides no agreement for cross border product standards or regulation. Essentially compliance with regulations in the EU and UK is necessary if goods are to be offered for sale in both markets.
• Packaging and labelling – product labelling and marking requirements have changed. Businesses need to update product labels to ensure dual compliance if goods are to be sold both in the UK and EU.

As evidence from the principal ports already suggests, businesses face a steep learning curve over the next few months as they adapt to the new trading environment.

 Amy Peacey is a Senior Associate at Clarke Willmott LLP.  She specialises in advising businesses on all matters relating to commercial contracts, including compliance with data protection legislation.

APPOINTMENT OF THE WEEK

Penrose Foss joins Clyde & Co

Clyde & Co has recruited Penrose Foss as a Partner in its London-based accountants’ liability and regulatory investigations team.

Previously Foss was the General Counsel of accountancy firm RSM for a decade. She has extensive experience of advising at Board level on major risk management issues as well as defending complex, high value professional negligence claims, large scale regulatory investigations and disciplinary proceedings.

Clyde & Co’s accountants’ liability and regulatory investigations team handles both contentious and non-contentious matters for accountancy firms. It is currently working on some of the largest regulatory investigations by the Financial Reporting Council (FRC).

LEGAL ARTWORK OF THE WEEK – LYDIA HAMBLET

Clifford Chance’s Printmaking Winner

For the past 24 years Clifford Chance has awarded an annual Postgraduate Printmaking Purchase Prize to the best printmaker completing their MA studies at a London art college. This reflects the firm’s long-standing commitment to supporting printmaking as the focus of its extensive art collection.

The winner this year, as announced in the past few days, is  Lydia Hamblet who completed her studies at the Royal College of Art in 2020. Lydia was selected from a shortlist of potential recipients drawn up by Clifford Chance’s long-term art advisers Frank/Hindley Art Consultants.

“Though circumstances to view their prints were severely circumscribed, we were privileged to look at the work of many hugely talented printmakers, from which we agreed to award our prize to Lydia Hamblet, said Mark Payne, Clifford Chance Partner and Chair of the firm’s Art Committee, “We found her work particularly engaging, as it explores ideas about shared personal experiences through a vibrant engagement with printmaking processes. We greatly look forward to seeing future works by Lydia and hope this Prize assists her to progress her printmaking career.’

The award fund will be used by Lydia towards studio space and materials, with the intent of preparing for a solo show.’

More examples of Lydia Hamblet’s work can be viewed here.

WEBINARS OF THE WEEK

COLLYER BRISTOW

Webinar – Insecurity and Uncertainty: Data security and compliance for SMEs in a remote working environment As the pandemic continues, organisations have learnt to deal with the uncertain environment – however the feeling of insecurity is only growing stronger. Data security and compliance issues are proving to be a huge challenge for organisations and their management teams. There is little oversight of how securely employees are acting, and so policing cybersecurity and data compliance on legacy and new systems is an ongoing battle. Large scale remote working has placed security and compliance teams under increased pressure; just how well are they managing their threat landscape? In this interactive round-table discussion at 2-3pm on 16 March, we will discuss the key data security and compliance challenges currently facing SMEs, and provide practical, objective guidance on how best to nullify, or at least mitigate, these risks. Speakers: Simon Rycroft, Co-Founder & Director at Cyber Risk Management Group (CRMG) Patrick Wheeler, Partner – Head of Intellectual Property and Data Protection at Collyer Bristow  Location: ZoomDate: 16 MarchTime: 2-3pm

BDB PITMANS