NEW LEGAL YEAR...NEW FACES

A NEW LEGAL YEAR OPENS AND THERE WILL BE NEW BOYS AND GIRLS IN THE JUDICIAL RANKS........

Court of Appeal:

• Black J becomes Black LJ to replace Wall P in the Fam D
• Gross J becomes Gross LJ to replace Dyson SCJ in the Sup Ct
• Tomlinson J becomes Tomlinson LJ to replace Waller LJ, who retired last term

High Court

• Robin Spencer QC (criminal silk from Chester) becomes Spencer J (QBD) on the promotion of Tomlinson J (see above)
• Michael Supperstone QC (public law silk from 11 KBW) becomes Supperstone J (QBD & Admin Court) on the promotion of Gross J (see above)
• Peter Jackson QC (child law silk from 4 PB) becomes Jackson J (Fam D) on the promotion of Black J   - (see above)
• Keith Lindblom QC (planning silk at FTB) becomes Lindblom J (QBD) on the retirement of David Clarke J

County Court

• Colin Birss QC (IP silk from 3 NS) becomes HHJ Birss QC of the Patents County Court and Chairman, Copyright Tribunal on the retirement of HHJ Fysh QC
• District Judge Mark Gosnell (District Judge from Manchester - former solicitor  - this is quite a promotion - from one side of the Pennines to the other and presumably over the heads of the the resident existing circuit judges?!?)  is advanced to Senior Circuit Judge and Designated Civil Judge in Leeds on the retirement of HHJ Grenfell
• Allan Gore QC (PI silk from 12 KBW) becomes Senior Circuit Judge and Designated Civil Judge in Liverpool replacing HHJ Stephen Stewart QC.

I also see that Gloster J is the new J in charge of the Commercial Court and that Collins J is no longer in charge of the Admin Court - this has fallen to Sir Anthony May who is also P of the QBD (I don't know when that interesting change was made).  As has been widely reported Tugendhat J is taking control from Eady J of the trial lists in the QBD.  

JUDICIAL RECUSAL

What many people don't realise is that the justice system relies on a large number of part time judiciary.  The county courts, employment tribunals and even the High Court plug the gaps in the their judicial resources by deploying lots of judges who are still practising lawyers and sit part time.  Miss Recorder Cherie Booth QC is one such famed example.  The problem often with these judges is that they have wide ranging professional connections to lots of people which mean that they are sometimes conflicted out of hearing many cases.  I recall attending the Employment Tribunal at Truro presided over by a local employment law solicitor who who had acted for so many people in the small world of that corner of Cornwall that he had to constantly recuse himself due to a perception of bias.  We are reminded of all this because the Court of Appeal yesterday (Re A (CHILDREN) (2010) CA (Civ Div) (Thorpe LJ, Smith LJ, Patten LJ) 23/9/2010) had to set aside some findings of fact made against a father in a Children Act case because the Recorder had an ongoing professional relationship representing the Guardian of the Child (in a different case) who had supported the mother's version of events.  Difficult to understand why the Recorder did not recuse hereself - especially as she did withdraw at a later stage in the case.  The Court of Appeal gives the following good advice to judges:

 (2) (Per curiam) A judge would be wise to err on the side of caution and reveal at the outset anything that might lead to recusal. (3) (Per curiam) On an application for recusal it was incumbent on ajudge to explain in sufficient detail the professional or other relationship that was challenged.

PROBLEMS WITH FIXED TERM PARLIAMENTS

The Fixed Term Parliaments Bill had its second reading yesterday.  I have commented on this very bad Bill before.

My very small son would not go to sleep so I made him watch the second reading on the BBC.  He was as riveted as I was and the transcript is here for those seeking entertainment.


The following issues were raised:

• Most speakers complained about the lack of any pre-legislative scrutiny (no green or white papers or indeed any consultation at all) and the guillotined consideration of a constitutional bill in both Houses.
• Many MPs and lawyers consider that because the Bill permits the Prime Minister to order that an election can take place 2 months earlier or later than the 5th anniversary of the last election, the Bill is one which provides for the power to extend the term of a Parliament and is therefore not subject to the Parliament Acts and can be vetoed by the House of Lords. Wouldn't that be an interesting outcome - if the Lords vetoed the Bill to save the Commons from this constitutional folly.
• The Speaker could be involved in political and legal wrangles as he must certify that the relevant vote has taken place in the House and that an election could be called.  Imagine if the Speaker got it wrong and faced a challenge?
• The Bill does not take the power to call an election from the Prime Minister and hand it to the House of Commons.  If the Prime Minister and Whips ordered their majority of MPs to abstain or be absent from a vote on a general election...it would be lost by the Prime Minister and the Prime Minister would have the general election he wished for....

The Dep Prime Minister was pleased to tell the House that HM Queen had placed her power to dissolve Parliment into the hands of her Commons assembled.  I am not sure that was the wisest thing for Her Majesty to do...still she has no choice:

The Deputy Prime Minister (Mr Nick Clegg): I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place her prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

THE RIGHT HONOURABLE BARON BINGHAM OF CORNHILL, KG, PC, FBA

Quondam: QC, MR, LCJ and last Senior Lord of Appeal in Ordinary. A rare judicial Knight of the Garter.

 RIP.

He was visitor of my alma mater - Balliol College, Oxford and I had the privilege of meeting him several times in that capacity.  He was a true believer in the rule of law and was in a position to put right several injustices during his judicial career.

I recall this from the Fairchild judgment -which permitted mesothelioma claimants to recover even though science could not get them through the goal posts on the usual causation standard of proof in English Civil proceedings - Lord B had no problem moving the goal posts to avoid injustice:

The crux of cases such as the present, if the appellants' argument is upheld, is that an employer may be held liable for damage he has not caused. The risk is the greater where all the employers potentially liable are not before the court. This is so on the facts of each of the three appeals before the House, and is always likely to be so given the long latency of this condition and the likelihood that some employers potentially liable will have gone out of business or disappeared during that period. It can properly be said to be unjust to impose liability on a party who has not been shown, even on a balance of probabilities, to have caused the damage complained of. On the other hand, there is a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so, when the harm can only have been caused by breach of that duty and when science does not permit the victim accurately to attribute, as between several employers, the precise responsibility for the harm he has suffered. I am of opinion that such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim. Were the law otherwise, an employer exposing his employee to asbestos dust could obtain complete immunity against mesothelioma (but not asbestosis) claims by employing only those who had previously been exposed to excessive quantities of asbestos dust. Such a result would reflect no credit on the law.

Are the PCS going to challenge the Superannuation Bill in Court?

See my earlier post on this - following the PCS's victory over the last Govt., quashing its attempt to limit civil service redundancy pay - the Coalition is using legislation to push through changes which they have been unable to agree with all the civil service unions - representatives of which gave evidence to a select committee on 27th July 2010.


It seems that litigation is again likely -here is the evidence of the PCS to the Committee:

Mr Lanning: No, we do not because it was the administration that was found to have acted unlawfully and the reason why they did was because they tried to take away without agreement people’s accrued rights, and that is effectively trying to replicate people’s contracts. It is a bit fortunate that maybe BP have made the point for us today that in the private sector people would be protected normally by their contracts on what they are entitled to on redundancy, and that was not available to people in the Civil Service. The main difference you find is actually between the low paid and high paid. We are not opposed to dealing with the exceptions that get quoted in the press, but we do not think you should penalise the majority in order to deal with the problems which are the exceptions rather than the generality. What we are keen to do is a fair deal.

Q6 Chair: So you do not think you are going to finish up with a worse outcome as a result of winning the court action?

Mr Lanning: We do not think so because we think what they are doing is still unlawful. The proposition of the capping at 12 months and 15 months, according to our legal advice, falls foul of exactly the same issue, although under a different law, where the administration is trying to take away the accrued rights under human rights legislation. Pensions are regarded as possessions and we think this will be as well. We do not think it will be a workable scheme. What the administration and the Cabinet Office need to do is come together and have an agreement. There is all this focus always on the terms. The best way to reduce staff is through natural wastage and not through compulsory redundancy, and we did that for about 100,000 people and that would be the best way to save money going forward.

That sounds like fighting talk - that the accrued pension rights of existing employees are their possessions within the meaning of article 1, protocol 1 of the European Convention of Human Rights and are therefore protected by the Human Rights Act 1998. Save that article 1 says this:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.


In other words - Parliament can make laws in the public interest to deprive civil servants of their possessions - i.e.their pensions/redundancy rights.    There will have to be a legal debate in Court about whether the most proportionate way is being deployed to achieve a legitimate public interest - and if the PCS will not negotiate - the Govt may well argue that they have no other choice but to forcibly legislate in the public interest of saving the nation from bankruptcy.  


This is probably why the Minister (Criminal Barrister 1977-85) responsible replied to the PCS, in his evidence to the Committee, as follows:

Q38 Chair: Can I ask about the Bill and in particular the notes on compatibility with the European Convention on Human Rights, which is rather a longer paragraph than we usually have in such notes because in the case it was clear that the rights accrued through administrative practice were nevertheless legally enforceable rights. The Bill does not seek to address that directly. It places a cap on redundancy payments as an alternative to addressing that directly, but it could be argued that by limiting the right to compensation expected under the Civil Service Compensation Scheme you are in fact seeking to deprive people of their possessions as defined by Article 1 of Protocol 1 of the European Convention on Human Rights. Have you got a comment on that?

Mr Maude: I am a very long retired lawyer. It is 25 years since I donned a wig and entered a courtroom (in that guise anyway) and I am advised that what we are doing does not in any way breach the European Convention on Human Rights.

The battle lines between Union and Tory are drawn again.  Thankfully the battle will be in the court room rather than the streets.


POST SCRIPT - this Govt really is rushing through its legislation without proper consideration - by a majority of 63 - it had a motion passed last night which limits consideration of the Superannuation Bill to only 16th Sept in Committee and to only 7 hours thereafter in the House before it goes to the Lords.  This is a Bill which has major implications for 1,000s of civil servants?

SUPERANNUATION BILL

Motion made, and Question put forthwith, (Standing Order No. 83A(7)) ,

That the following provisions shall apply to the Superannuation Bill:

Committal

1. The Bill shall be committed to a Public Bill Committee.

Proceedings in Public Bill Committee

2. Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 16 September 2010.

3. The Public Bill Committee shall have leave to sit twice on the first day on which it meets.

Consideration and Third Reading

4. Proceedings on consideration shall (so far as not previously concluded) be brought to a conclusion three hours after the commencement of those proceedings.

5. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion four hours after the commencement of proceedings on consideration.

6. Standing Order No. 83B (Programming committees) shall not apply to proceedings on consideration and Third Reading. - (Jeremy Wright.)
The House divided: Ayes 307, Noes 244.

WHEEL CLAMPING (ON PRIVATE LAND) TO BE NO MORE

Break out the champagne.  This is the best news this week.  Speaking as a man who had a very expensive run-in with a belligerent wheel clamper and failed to make any progress with their laughable appeal procedure and the industry regulatory - I am overjoyed by this news.  Trespass is a tort with civil remedies (including abatement by self-help) which can easily deal with errant parked cars  -but the extortion of clamping was something else!

Well done the Coalition (on this matter).

This was the crucial statement in the House yesterday (I look forward to the rest of the 'Freedom Bill' - but hope there will be pre-legislative scrutiny and proper time for debate! ):

Wheel-clamping

4. Diana R. Johnson (Kingston upon Hull North) (Lab): When she plans to bring into force existing powers to curb the activities of private sector wheel-clampers. [13085]

The Parliamentary Under-Secretary of State for the Home Department (Lynne Featherstone): I announced on 17 August the Government's intention to ban wheel-clamping and towing on private land. The ban will be included in the freedom Bill, which is due to be introduced this autumn. Sections 42 and 44 of the Crime and Security Act 2010, which provide for the regulation of the vehicle immobilisation industry by way of business licensing, will be repealed.

Diana R. Johnson: In Hull, we know that the previous Government's legislation would have stopped overcharging by wheel-clamping companies, and it was widely consulted on. Why cannot the hon. Lady introduce that provision while she waits for the legislation to go through Parliament to introduce the changes that she wishes to see?

Lynne Featherstone: Because all the previous Government's legislation, despite their very good intentions, would have been complex and expensive to introduce. When we looked again at the results of the consultation, we decided that precisely because of the abuses that take place, banning was the best option. That will be brought forward this autumn, which is not that long to wait.

Bob Russell (Colchester) (LD): When the Minister made her announcement, had she consulted the industry? Bearing in mind that there are some genuine, law-abiding firms that provide an enforcement service where parking abuse takes place, would it not have been better to deal with the cowboy wheel-clampers rather than legitimate businesses? What compensation will legitimate businesses get?

Lynne Featherstone: I thank my hon. Friend for that question. Yes, the industry was consulted, and of course there are probably a number of people in the industry who are not cowboys, but unfortunately, given the vast number that were cowboys, the industry brought the change upon itself. That is why we have had to take this action rather than bring in more and more regulations that would not be enforced. Such regulations would put burdens on the police to enforce something that was never truly enforceable, and abuses would continue.

We will not pay any compensation, but the vast majority of clamping companies are already using ticketing. When the ban comes in, the others will be able to transfer to ticketing if they are any good, and private landowners will be able to protect their property anyway.

Kelvin Hopkins (Luton North) (Lab): This very week, private wheel-clampers are in operation in my constituency, extorting vast sums of money from my constituents. May I urge the Minister to go further and abolish private wheel-clamping altogether, and hand it over only to local authorities and police forces so that it can be publicly accountable?

6 Sep 2010 : Column 5

Lynne Featherstone: I am pleased to be able to inform the hon. Gentleman that wheel-clamping is being abolished altogether on private land. Local authorities will still carry out wheel-clamping on public land.

TOO FAST! TOO FAST! WHERE ARE THE BRAKES?

The Coalition just keeps on driving its constitutional reform agenda forward - no stopping, no thinking, just keep going.

An excellent Parliamentary research paper on the Parliamentary Voting System and Constituencies Bill says this: (emphasis added by me)


Scrutiny of the Bill
The Bill was introduced on 22 July and is due for its Second Reading on 6 September 2010. A programme motion has been published which allows for five days in Committee of the Whole House and two days for Report and Third Reading.
There has been concern at the pace at which the legislation is designed to pass through Parliament, especially as another important constitutional bill, the Fixed- term Parliaments Bill, is also due for a second reading on 13 September. The Political and Constitutional Reform Select Committee issued a report on 2 August which complained about the lack of time available for scrutiny. The Committee hoped to take further evidence in September and report substantively on the Bill before its Committee stage.
In a letter to the Deputy Prime Minister, the Committee Chair, Graham Allen said:
Your legislative timetable has put me and my committee in an extremely difficult position. When the House agreed to establish the committee, it did so, in the words of the Deputy Leader of the House, “to ensure that the House is able to scrutinise the work of the Deputy Prime Minister”. In the case of these two bills you have denied us any adequate opportunity to conduct this scrutiny.
Professor Hazell has argued that both bills were introduced without any formal consultation in the form of green or white papers, and that they raise important constitutional issues demanding proper scrutiny. Witnesses to the Political and Constitutional Reform Committee and to the Lords Constitution Committee have suggested that more thought needs to be given to the type of proportional representation put before voters and the rules under which the referendum will be fought, as well as greater consideration about the changes in the Rules for the Redistribution of Seats.
The Opposition have tabled a reasoned amendment as follows:
That this House, whilst affirming its belief that there should be a referendum on moving to the Alternative Vote system for elections to the House of Commons, declines to give a Second Reading to the Parliamentary Voting System and Constituencies Bill because it combines that objective with entirely unrelated provisions designed to gerrymander constituencies by imposing a top-down, hasty and undemocratic review of boundaries, the effect of which would be to exclude millions of eligible but unregistered voters from the calculation of the electoral average and to deprive local communities of their long-established right to trigger open and transparent public inquiries into the recommendations of a Boundary Commission, thereby destroying a bi-partisan system of drawing boundaries which has been the envy of countries across the world; and is strongly of the opinion that the publication of such a Bill should have been preceded by a full process of pre-legislative scrutiny of a draft Bill.
The SNP and Plaid Cymru have also put down a reasoned amendment:
That this House declines to give a Second Reading to the Parliamentary Voting System and Constituencies Bill because it plans to reduce the number of Members of Parliament in a way that could disproportionately disadvantage Wales and Scotland, does not seek the consent of devolved administrations regarding the date of the referendum, fails to take into account the recommendations of the Gould Report into the 2007 Scottish elections by placing the referendum vote on 5 May 2011, the same day as devolved government elections, requiring multiple ballot papers which will further obfuscate the elections of those regions, resulting in possible chaos at polling stations, and provides for a referendum on UK-wide voting systems which would dilute interest in the elections of the devolved governments, and fails to include an option to choose a proportionate electoral system. 
The form of the Bill has been affected by the timetable for the referendum. It contains detailed changes to the electoral rules which are more commonly found in a referendum order which is issued once the primary legislation has achieved royal assent. The Bill also includes the necessary changes to electoral legislation to implement AV, without the need for further primary legislation, should the referendum result in a Yes vote.

THE SPEED OF CONSTITUTIONAL REFORM

The Coalition is in a massive hurry to get its constitutional changes through Parliament.  The House researchers have issued a paper to assist MPs with the Fixed Term Parliaments Bill.  I have added a link to it on the right (featured documents) and it pays reading.  These extracts however, tell you all you need to know about the indecent speed with which our constitution is being amended to self-serve the interests of this Coalition (I have wept before that we appear unable to give these major constitutional changes the debate and scrutiny they deserve - but this seems to take the biscuit):

The Bill has not been subject to pre-legislative scrutiny and the timetable for parliamentary consideration has been subject to some criticism. Its Second Reading is due to take place one week after that of another constitutional bill: the Parliamentary Voting Systems and Constituencies Bill 2010-11. The Constitution Committee in the House of Lords is conducting an inquiry into the Government’s proposals. The Political and Constitutional Reform Committee in the House of Commons took evidence from the Deputy Prime Minister, Nick Clegg, on constitutional issues including fixed-term parliaments, and is to take evidence from the Clerk of the House on 7 September 2010.



There have been some concerns expressed that the Bill has been drafted in a short time scale, particularly as if enacted the legislation will have a major impact on the UK constitution. Professor of Constitutional Law at Kings College London, Robert Blackburn, has said that:
This particular bill is something that needs very careful thought because it can have a huge impact on general elections. Let us not forget, of course, that a general election really is the main political event in our democracy. We are determining not just the life and the composition of the House of Commons but also of the Executive, so it is a very important subject which should not really be rushed.
The Political and Constitutional Reform Committee published a short report expressing concerns about the timetable for the Parliamentary Voting System and Constituencies Bill 2010-11.15 The Second Reading of that Bill, also introduced on 22 July, is scheduled to take place one week before that of the Fixed-term Parliaments Bill. The report included a letter from the Chair of the Committee, Graham Allen, to the Deputy Prime Minister which also criticised the timetable for the Fixed-Term Parliaments Bill 2010-11. Graham Allen wrote:
When the House agreed to establish the committee, it did so, in the words of the Deputy Leader of the House, “to ensure that the House is able to scrutinise the work of the Deputy Prime Minister”. In the case of these two bills you have denied us any adequate opportunity to conduct this scrutiny.
The Committee has announced that the Clerk of the House of Commons is to give evidence on the Fixed-Term Parliaments Bill 2010-11 on 7 September 2010.

The other great constitutional reform bill mentioned is that to permit the referendum on the AV system of voting - the Bill is here.  The Bill also contains the amendments to voting legislation which will be enacted if the referendum is carried in favour of AV.  I was expecting reams of legislative amendments to enact the AV system - however the changes are very short and sweet - this is the key provision:

How votes are to be counted
45A   (1)   This rule sets out how votes are to be counted, in one or more stages
of counting, in order to give effect to the preferences marked by	15
voters on their ballot papers and so to determine which candidate is
elected.
(2)   Votes shall be allocated to candidates in accordance with voters’ first
preferences and, if one candidate has more votes than the other
candidates put together, that candidate is elected.	20
(3)   If not, the candidate with the fewest votes is eliminated and that
candidate’s votes shall be dealt with as follows—
(a)    each vote cast by a voter who also ranked one or more of the
remaining candidates shall be reallocated to that remaining
candidate or (as the case may be) to the one that the voter	25
ranked highest;
(b)    any votes not reallocated shall play no further part in the
counting.
(4)   If after that stage of counting one candidate has more votes than the
other remaining candidates put together, that candidate is elected.	30
(5)   If not, the process mentioned in paragraph (3) above shall be
repeated as many times as necessary until one candidate has more
votes than the other remaining candidates put together, and so is
elected.

MESOTHELIOMA & THE ARMED FORCES

MESOTHELIOMA - caused by the inhalation of asbestos many years ago is about as bad as it gets for industrial injuries leading to death.  The Courts have mercifully developed a fast-track route to compensation for sufferers, or more usually widows.  The Govt have to pay out a lot themselves - to all those who worked in prisons, schools and shipyards for the state - stripping out boilers etc.

There is one section of crown employment however, where full compensation is denied.  Members of the armed forces who were exposed to asbestos before 1987 (and if they were, the exposure is very likely to have been pre-1987) in the course of their duties cannot obtain compensation from the Govt because of section 10 Crown Proceedings Act 1947 - which was repealed prospectively from 1987 onwards only.

This means that civilian employees of the MOD or of the Crown generally can claim compensation, but not military personnel and their families.  The quid pro quo is that military men, women and their families can instead obtain a war pension.  The idea that a war pension replaces full compensation for mesothelioma is a bit of a joke.  General damages for Mesothelioma usually fall within the £60k-£90k range plus loss of earnings/dependency etc whereas war pensions do not even come close (latest rates here - roughly £150 per week for the living and £117 for a widow - so would have to survive 12 years to get £100,000).  The Govt have recently moved to ensure that mesothelioma war pension claimants get 100% entitlement to a war pension automatically - but is that enough?

The law has been adjusted several times (Fairchild, Compensation Act 2006) to permit easy access to compensation for mesothelioma - perhaps a further adjustment is now necessary to stop this injustice?  Perhaps a further Bill to repeal section 10 of the 1947 for military mesothelioma claimants, whenever the disease was contracted?