Edward Fennell’s Legal Diary – Edition 48

Friday 5 March 2021 Edition 48

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

SHORT THOUGHT FOR THE WEEK

– WHEN’S THE RIGHT TIME TO SAY GOOD-BYE?

This week’s tale of two lawyers illustrates that the old etiquette of knowing when to resign and when to stand and fight misconduct allegations has completely frayed.

One lawyer is accused of lying, breaking sacred confidences and proceeding against prudent advice. She stays on. Another is caught up in a decade-old complaint which bounces around between various tribunals. He caves in on the grounds that the dispute is becoming a distraction. Where’s the consistency and where’s the consensus in wider society over good governance whether that be by the First Minister of Scotland or the President of the Law Society (or even the head of diversity at Deloitte’s).

Having a top job in any organisation – such as a law firm, in government or in business – increasingly carries with it the risk of accusations of bullying, sexual misbehaviour, discrimination, fraud. No longer is anyone ‘innocent until proved guilty’. Instead it is a matter of how brazen you are to tough it out. This might not be a matter for the law but some consistency on what constitutes ‘doing the right thing’ in these circumstances would be welcome. (But maybe no return to the bottle of whisky and a loaded gun in the library).

The Legaldiarist

In this week’s edition

+ The Legal Diary of the Week

– Old Bangers and Big Bangers at Macfarlane

– Barristers on a Budget

– Cooley Cashes In

– My vaccine or yours?

+ SPECIAL REPORT OF THE WEEK

– PRIVATE PROSECUTIONS FUNDING TO BE REFORMED

+ LEGAL ANALYSIS OF THE WEEK

– TAKING VAX TO THE MAX

+ APPOINTMENTS OF THE WEEK

+ PODCASTS AND VIRTUAL CONFERENCES

THE LEGAL DIARY OF THE WEEK

Old Bangers or Big Bangers?

By any standard David Gauke, previously the Lord Chancellor, is a decent man. He took his stand over Brexit and paid the price, ending his political career for the foreseeable future. But with such a track record it is no surprise to see him back at his old firm Macfarlanes as the head of the firm’s Public Policy practice. And it must be said that it is somewhat ironic to see him now fronting up on the firm’s (excellent) new briefing publication on Big Bang 2.0 which explores the potential benefits to the City post-Brexit.

“What might Big Bang 2.0 look like,” the firm asks. “Freed from the constraints of EU membership and EU rules, how might the UK reform financial services regulations to enable the City and the wider sector to flourish in the post-Brexit era?”

The report offers an impressive series of seventeen areas where it would be possible to do things differently. “Our purpose here is not to advocate for or against any particular reforms but to set out the options and the relevant factors in determining whether to proceed with any such reforms,” says Gauke,

And that’s when the document becomes pretty technical. AIFMD? CRD4? PRIIPs? FSCs? Yes, they are all here and the Chancellor (if not the Prime Minister) will no doubt be weighing them up as soon as he’s recovered from his Budget battering. But the Macfarlanes’ analysis is not just vague ‘what-iffery’ – the areas are specific and the pros-and-cons examined with forensic care .If you want real thought leadership this is what it looks like. Go to

Barristers on a Budget

Along with the care sector the justice system was feeling distinctly ignored following this week’s Budget. With lifebelts being hurled to all and sundry across the economy, carers and barristers have a good claim to feel they are being left (one again) to drown.

“With parts of our justice system facing unprecedented challenges, a 56,000 case backlog in the Crown Court and some victims of crime having to wait until 2023 before they are likely see justice done, it is disappointing to see no extra funding emerging from the Treasury in today’s Budget announcement,” said the Chair of the Bar Council, Derek Sweeting QC. “The Chancellor has turned a blind eye to law and order and settled for stretching last year’s commitments to cover the future survival of our justice system. It’s not enough. Although additional funding for domestic abuse is welcome, access to legal aid for the victims of this crime remains means-tested, denying the many who suffer at the hands of violent abusers living in their owns homes from gaining access to justice. Once again, the Ministry of Justice, the courts and the wider justice system are the poor relations in the Treasury’s priorities.”

The justice system has been in crisis for so long now it feels as if things will never change. But one day it might just pop.

Just What?

Although it clearly escaped the notice of the Chancellor this is JUSTICE WEEK – and today’s the final BIG day. Organised by the Law Society, the Bar Council and CILEX there have been events for the past four days. And today’s theme apparently is ‘The Big Legal Lesson’. We tried to find out more about what this meant via the Law Society website. However as you are aware, the Society has been facing acute difficulties recently – after all it is not quite every week they lose a President – so maybe no surprise that the link did not work. But we are sure it will be marvellous.

Cooley Cashes In

With Gold Standard Certification from the Women in Law Empowerment Forum for nine consecutive years and consistently perfect scores on the Human Rights Campaign Foundation’s Corporate Equality Index, Cooley has a good track record on diversity. But it’s new UK Diversity Fellowship programme offers an intriguingly fresh approach by supporting new entrants to the legal profession to act as catalysts for change within their own communities. Under the scheme ‘outstanding students committed to promoting diversity, equity and inclusion’ are given an award of up to £12,000 to assist with tuition and study expenses. “In addition to being high academic achievers, successful applicants will demonstrate a commitment to promoting diversity, equity and inclusion in their local communities or elsewhere,” says the firm.

This bottom-up approach has already been tried and tested in the USA explains Claire Temple, Cooley’s London office training principal. “Our programme in the US has been extremely successful, and we have a vibrant Diversity Fellowship alumni group. We look forward to replicating this track record in the UK and to working with Cooley’s next generation.”

My vaccine or yours?

Given that right now the names ‘AstraZenica’ and ‘Pfizer’ rank only marginally less significant in our lives than ‘Harry’ and ‘Meghan’ we decided to stroll back through the archives to Spring 2014 when a take-over of AstraZenica by its US rival was a hot legal issue. Anthony Woolich of Holman Fenwick Willan was quoted in The Times as saying, ”Attempted take-overs of this kind are governed by EU Regulations, meaning that it falls under the exclusive jurisdiction of the European Commission.”

Very quickly the matter had become quite a political football. “As usual the politicians have plunged in, talking about things they don’t understand,” sighed Edward Craft of Wedlake Bell. Nonetheless the absence of influence of the UK government in the matter was one of the factors which fed into the Brexit debate.

Naturally the question arises that if the takeover of the Anglo-Swedish business by the American giant had gone ahead would we now have have one vaccine or two? Would it be stored in a domestic fridge or a deep freeze? And would President Macron have sneered that it did not work.? Ah, one of the many great ‘What ifs’ of history.

Go Whistle for it

A new report, Are Whistleblowing Laws Working? A Global Study of Whistleblower Protection Litigation has been published bythe International Bar Association(IBA) Legal Policy & Research Unit(LPRU) and Government Accountability Project,which tracks the records of whistleblower laws in 38 countries. Depressingly it provides an unprecedented source for understanding the successes and, more significantly, shortcomings of whistleblower protection legislation worldwide.

‘We found that in most jurisdictions the laws are underused,” said Samantha Feinstein, Government Accountability Project Staff Attorney and Deputy Director of the International Program. “Where there have been cases, whistleblowers experience a poor success rate. In the few instances where they do succeed, whistleblowers are typically awarded meagre compensation. On this basis we make a number of recommendations for legislators and regulators, including greater transparency and ongoing review of these laws. Governments should prioritise public education to address underlying cultural stigma and ensure those who speak up know their rights.’”

Click here to download a PDF of Are Whistleblowing Laws Working? A Global Study of Whistleblower Protection Litigation
www.ibanet.org/Document/Default.aspx?DocumentUid=49c9b08d-4328-4797-a2f7-1e0a71d0da55

SPECIAL REPORT OF THE WEEK

– PRIVATE PROSECUTIONS FUNDING TO BE REFORMED FOLLOWING THE FLAWED POST OFFICE CASES

At long last some good is starting to emerge from the scandalous way in which the Post Office erroneously pursued its own Sub-Postmasters on charges of fraud. The real fault, as we now fully understand, lay with its own botched computer system. 

Following an inquiry prompted by the controversial private prosecutions the Government has agreed this week to change the rules on the payment of lawyers’ fees in some criminal trials so that defence and prosecution are on an equal footing,“The current rules are unfair and favour the prosecution over the defence,” said the House of Commons Justice Committee.

 The Committee’s report  Private prosecutions: safeguards was published in the Autumn last year and the Government’s response, announced yesterday, was overwhelmingly positive in tone. Chair of the Justice Committee, Sir Bob Neill, said,  “I am delighted that the Government has decided to support one of our recommendations and, crucially, has given a commitment to legislate. 

 Our inquiry found that the present arrangements for funding private prosecutions are unfair. Currently, a private prosecutor can recover all their costs from public funds even if the defendant is acquitted. This gives an unfair incentive to the prosecution because, by contrast, an acquitted defendant can only recover costs capped at legal aid rates. The Government’s response commits to legislate to ensure that the legal aid cap also applies to private prosecutors. This is a welcome levelling of the playing field”.  

 The Post Office case also exposed troubling features regarding private prosecutions generally. As the Justice Committee report pointed out, there appeared to be a lack of oversight from the authorities over the growing number of private prosecutions currently taking place. In the Post Office case, for example, it seemed that the only institution aware of the very large number of cases being brought by the Post Office was the Post Office itself.  

 The Justice Committee report therefore recommended that HM Court and Tribunals Service should establish a central register to keep track of all private prosecutions in England and Wales.“The lack of internal or external oversight of the Post Office’s approach to prosecutions is an issue which speaks to a broader concern,” said the report. “Examples of prosecutions brought by the Post Office and the RSPCA suggest that it is not sufficient to rely on the courts alone to identify and remedy problematic prosecutorial practices.”  

 The Government agreed with the Committee that such a register would go some way towards correcting the oversight issue and added that one would be established by the end of this year.  

This long and sorry saga – which resulted in premature deaths, suicides and financial devastation among those affected – is not quite over. But at last the gaps and unfairness in the system are being addressed.

LEGAL ANALYSIS OF THE WEEK

TAKING VAX TO THE MAX

How far can employers demand it? asks Mini Setty

‘No jab, no job’ could be a dangerous approach for employers to take. There is not enough evidence to suggest taking the vaccine makes everyone’s working environment safe. If an employer tries to force their employees to receive the jab or decides not to hire someone based on their refusal to get the jab, it could be result in employment claims, for unfair dismissal and/or discrimination.

However, in circumstances where a person is working in the healthcare sector, or with vulnerable children and adults, and refuses to get the vaccine, there may well be more validity to the request by the employer for vaccinations. Fortunately, there is already a legal framework that sets out what employers can and can’t do in the name of health and safety at work, but as things stand, there is not legal right for an employer to demand its employee is vaccinated.

Vaccinations create a conflict of legal protections, where the freedom of individual choice is weighed against the health and safety of others. Some employees may have a justifiable reason for not wanting to take the vaccine, and we would always urge employers to discuss an employee’s reluctance, whether it be related to a disability or religious reasons.

Additionally, in all cases, every other option would need to be exhausted before dismissal was to be considered. For example, they could ask an employee if they can work from home, or to consider switching to a role that would mean they are coming into contact with fewer people in order to effectively safeguard against the potential risk.

If no solution can be found, there could be serious ramifications for the employers if they dismissed or refused jobs. It is likely that we will see a significant increase in cases brought before the employment tribunal to decide the rights of employers vs employees.”

Mini Setty is a Partner in Employment Law at Langleys Solicitors

APPOINTMENTS OF THE WEEK

Ropes & Gray has appointed Dr Lincoln Tsang as a partner and head of its European Life Sciences practice, based in London.

Qualified in law, medical and pharmaceutical science Dr Tsang is a former senior UK regulator and advisor to numerous EU and global governmental authorities. He specialises in advising clients on UK, EU and cross-border regulatory compliance and enforcement, including litigation, internal investigations and public policy matters concerning the life sciences industry. “Dr Tsang’s  arrival supports our strategy of becoming London’s pre-eminent international law firm for private capital clients – many of whom are actively investing in the life sciences industry – alongside advising some of the world’s leading healthcare companies,” said Will Rosen, managing partner of Ropes & Gray’s London office.

Ann Frances Cooney has joined DWF as a Partner in its employment practice in Glasgow. Formerly with Addleshaw Goddard where she was a Legal Director and head of the Glasgow employment team, Cooney has extensive experience including advising on industrial relations & strike action, handling Board and C-Suite severance negotiations & settlement agreements, international mobility, discrimination and ill health management.

“I am delighted that Ann Frances is joining DWF to lead our employment practice in Scotland,” said Joanne Frew, UK head of employment at DWF. “Her experience and reputation in the market aligns with our business’ deep pedigree in supporting clients though a huge range of employment matters.”

PODCAST OF THE WEEK

Interview with Lord Neuberger

The latest Kids Law Podcast from the Next 100 Years featuring Lord Neuberger, former president of the Supreme Court and member of the House of Lords, is now available.

In this episode Lord Neuberger answering questions on what justice means, why it is important and the chaos that would ensue without it. He explains the role of parliament, civil servants and judges in making laws and why he believes children don’t learn enough about the how the country is run and should be taught more about law and justice at school.

To listen go to the following link: https://www.buzzsprout.com/1577473/8045640

BRITISH-SWISS CHAMBER OF COMMERCE

We aim to be back again next week so send your news, insights, comments and legal analysis to

fennell.edward @yahoo.com

and please circulate this edition to your colleagues