Judicial pensions and O’Brien: MoJ retreats before the little army of part-time judges

In these straitened times the Government is cutting off legal avenues to almost everyone, hence denying the crumbs and scrapings of bread and butter this meant to all but those starry City law firms. Now the Ministry of Justice has moved swiftly to block another handy source of minor revenues to lawyers – and to avoid a costly bust-up with members of its own judiciary.

The litigants in this case would have been that oppressed and misunderstood minority, not quite in the newly defined precariat class, but certainly living on the margins of society and needing someone to stand up for them.

They are the little army of part-time fee-paid judges, recorders, tribunal chairs, adjudicators and assessors who keep the wheels of grassroots British justice running smoothly.

What was in prospect was that hundreds of well-shod, sensibly suited, grey-headed or blue-rinsed judges, recorders, tribunal chairs etc would have marched on some of those very same tribunals wildly waving their writs containing their revolutionary demands.

What do they want? Pensions. When do they want them? Now would be nice, backdated if possible, please.

Their case is pretty unimpeachable. The UK Supreme Court has ruled in O’Brien v MoJ that the exclusion of fee-paid Recorders from the judicial pensions scheme was discriminatory against part-time workers under EU equal treatment regulations. It follows that all other judicial fee-paid part-timers have (prima facie) similarly been discriminated against.

The only issue was whether the part-time judges, tribunal chairs, adjudicators etc would have to divert themselves from their important labours to bang in their claim forms before they were time-barred – thus clogging up the Employment Tribunal system and requiring the payment of more judges, tribunal chairs, etc to clear the backlog. Vicious circle, you see.

“A flood of claims would not be in anyone’s interests,” according to the Ministry of Justice. It continues, in a somewhat panicked style: “They would not be in the claimants’ interests, because they would be put to the cost and inconvenience of presenting their claims; they would not be in the Ministry of Justice’s interests, because the Ministry would be put to the cost and inconvenience of responding to the claims; and they would not be in the Employment Tribunal’s interests because of the administrative burden that they would impose upon Tribunals.”

No mention, note, of the interests of lawyers given they may be finding themselves at a bit of a loose end at the moment with the abolition of legal aid in a swath of legal areas not to mention the deterrent effect of new fees on Employment Tribunal claimants.

To stem the tide of protective claims from part-time judges, tribunal chairs, adjudicators etc that would be put in to avoid the time bar the MoJ has instituted a moratorium – in effect a pledge not to raise time bar issues should such cases come to court (the wording of the promise is below). Meanwhile it is designing a “bespoke” pension scheme for Recorders, the implication (though not the promise) being that something of the sort might be applied to all the other part-time judges, tribunal chairs, adjudicators etc.

The time bar moratorium covers anyone who retires or ceases to be a part-timer (including those getting a full time pensionable position) as well as new appointees after 1 March 2013. But in effect it covers all the part-time judiciary, suggesting they need not take any legal action at this stage and await instead the munificence of the MoJ. It makes clear that it is making no admission of liability apart from to Recorders and that it won’t be extending its generosity (should it produce any generosity) to anyone already time-barred by 1 March, for example those who have left the service and not already put in a claim. Nor does it make any promises regarding backdating. So maybe the little army should be lacing up its marching boots after all.

Twitter: alrich0660

Legal note on O’Brien v Ministry of Justice [2013] UKSC 6
Dermot Patrick O’Brien, a retired barrister, was a part-time recorder from 1978 and claimed he should have had the same sort of pension rights that accrue to full-time judges.

Otherwise he would be suffering “less favourable treatment” regarding terms and conditions because of his part-time status, contrary to an EU directive transposed into domestic law by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/155). For a successful claim the regulations specify at Section 5 (2) that the detriment suffered is specifically “on the ground that the worker is a part-time worker”, not on some other grounds, and that “the treatment is not justified on objective grounds”. Mr O’Brien had simply been told that “the office of recorder was not a qualifying judicial office under the [Judicial Pensions and Retirement Act] 1993 Act, and because there was no obligation to provide him with a pension under European law as he was an office-holder, not a worker”.

The Supreme Court referred to the Court of Justice (CJEU) the matter of worker/office-holder status and whether it is “permissible for national law to discriminate (a) between full-time and part-time judges, or (b) between different kinds of part-time judges in the provision of pensions”.

On the first question the CJEU said member states could decide on who falls within the “office-holder” category but could do so only “if the relationship between judges and the Ministry of Justice is, by its nature, substantially different from that between employers and their employees falling, according to national law, under the category of workers.”

‘While there is no evidence that the lack of a pension deters good quality candidates from applying to be recorders, the same may not be true of those parts of the justice system which rely upon fee-paid part-timers to do the great majority of the work’ – Lord Hope

On the second question, unsurprisingly, it said a distinction between full-time judges and part-time judges regarding pensions was unlawful “unless such a difference in treatment is justified by objective reasons, which is a matter for the referring court to determine”. There is an exception for purely casual workers but the MoJ didn’t seek to argue that. In this case, as far as the EU is concerned, a “worker” is distinct from a self-employed person. For judicial figures their mode of appointment and removal is important (so, arguably, since they are appointed, not just called in ad hoc or able to send someone else in their place, they must be “workers”. Judicial office holders in general “are not free agents to work as and when they choose, as are self-employed persons. Their office accordingly partakes of some of the characteristics of employment” (Sir Robert Carswell LCJ in Perceval-Price v Department of Economic Development [2000] IRLR 380). On the other hand they are, of course, constitutionally independent. According to the MoL: “Judicial office holders exercise their function wholly independently of influence or direction by any Minister, Government Department or agency.”

The MoJ was seeking to muddy the waters in this argument. Judges are, like “workers”, under the control and direction of their employers in terms of being required to come to work and to consider cases and give judgments. The independence with which they do it is simply the approved manner of their work.

Perhaps one day we will have a freelance judiciary, maybe competitive tendering with the lowest bid accepted. Then judges would be independent in employment terms (under a contract for services rather than a contract of service), but their judgment would perhaps be somewhat less than independent with too much thought about getting through the business and on to the next case. But we aren’t there yet. As Lord Hope noted in O’Brien: “The CJEU has, however, made it clear that the principle that judges are independent in the exercise of the function of judging as such is not called into question by extending to part-time judges the scope of the principle of equal treatment to protect them against discrimination as compared with full-time workers.”

The MoJ did not pursue this argument and instead fell back on saying that Recorders were simply different from full-time judges. You should ignore their actual written terms and conditions and look at the reality – when a Recorder was needed, it was more like calling in a barrister to do an individual piece work.

Hope dismissed this: “The court does not accept that the terms and conditions laid down by the Lord Chancellor for recorders do not give a true picture of the reality of the work that is done by a recorder. On the contrary, Mr O’Brien’s evidence shows that he was on one occasion required to explain why he had in two successive years failed to achieve the required number of sittings, and Mr O’Brien had to explain and apologise. The reality is that recorders are expected to observe the terms and conditions of their appointment, and that they may be disciplined if they fail to do so.”

In effect the argument is that an employer must make a clear distinction for EU purposes between a “worker” (ie employee) and a self-employed person. Creating strange hybrids with hidden terms and conditions doesn’t do the job.

So Hope ruled: “the court holds recorders are in an employment relationship within the meaning of clause 2.1 of the Framework Agreement on part-time work”.

The court went on to consider objective reasons that might justify unequal treatment. The MoJ position was that these comprised: “(a) the alternative opportunities available to part-timers, but denied to full-timers, to make provision for their retirement; and (b) the greater contribution made by the full-timers to the working of the justice system”.

Somewhat desperately, on might think, the MoJ argued that EU protections were for poor workers, not the privileged. They had good jobs elsewhere and could make pension provision through them, not through the public purse. But, of course, as Hope noted, while they are sitting as recorders, they aren’t clocking up the hours or income in their other jobs that would then count towards their pension.

As to (b), less onerous tasks – that’s just silly. Pensions are for everyone, not just the people who work hardest or the most hours. Hope did not quite dismiss the argument in these terms. Instead he could find no particular differences between recorders and full-time judges that would justify discrimination except that Recorders are part-time (and hence do less work) and full-time judges are full-time – and hence do more. Obvious, really. There should be no “whole-sale and indiscriminate exception to the pro rata temporis principle”.

The MoJ argued that it could not employ only full-time judges since it needed “a cadre of fee-paid part-timers who can be flexibly deployed to meet the varying demands of court business”. This too is nonsensical and amounts to saying that “we need these people so much that it is legitimate to discriminate against them”. Hope dismissed it thus: “This efficiency should not be purchased at a price which discriminates against the part-timers.”

There was more such argument from the MoJ. “The judicial pension scheme is a substantial incentive for high quality practitioners to seek and accept a full-time appointment” – so presumably it is justified to keep Recorders lean and hungry so they will leap like trained porpoises that little bit higher for the fatter, juicier, full-time rewards. In fact, as Hope points out, part-timers and full-timers must both be of high quality. “While there is no evidence that the lack of a pension deters good quality candidates from applying to be recorders, the same may not be true of those parts of the justice system which rely upon fee-paid part-timers to do the great majority of the work.”

This comment points the way for all those part-timers who are not Recorders and hence not (except by extension) covered by the O’Brien judgment. It is a pretty clear steer for the MoJ that they shouldn’t bother going to the expense of taking other cases through the judicial system to the highest court in the land and beyond unless they have some rather better arguments to deploy than in O’Brien.

Note: The case was remitted to the Employment Tribunal for the determination of the amount of the pension to which Mr O’Brien is entitled.

The MoJ promise
“The Ministry of Justice undertakes that if a present or former fee-paid part-time judicial office-holder (including legal and non‐legal tribunal members) is in time for the purposes of regulations 8(2) and (3) [of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000] and could not as at 1st March 2013 for a pension-related claim under the 2000 Regulations, the Ministry of Justice will not take any time point against him or her arising from the fact that the claim was not presented until some date after 1st March 2013.”

MoJ statement: Moratorium – fee-paid judicial pension cases

Anti-squatting law and the death of Daniel Gauntlett

It is six months or so since the passing of a law criminalising trespassing in Britain and already there is – apparently – a tragic victim and – certainly – a nasty political row. The victim is Daniel Gauntlett, a 35-year-old unemployed man who died in the bitter cold on the step of an empty boarded up bungalow in Aylesford, Kent. Reports suggested police had been involved in preventing him breaking in to the house some time previously – “and so Mr Gauntlett, had taken the fatal decision to abide by the law,” according to news service KentOnline.

Campaigners against Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which criminalised squatting in residential property, believe the new law may be responsible for Mr Gauntlett’s death.

Some go further and are pinning the blame directly on MP Mike Weatherley, who introduced the anti-squatting legislation into the House of Commons, a suggestion pursued with unpleasant vigour – hence the controversy.

The claim against him is that he insists squatters are generally young, politically motivated leftists whose aim is to undermine notions of property, whereas here was a bona fide homeless man who died as a result of the new law.

In answer Mr Weatherley told the Kent Argus: “It is true that some of those who are homeless have squatted but this does not make them squatters.

“A typical squatter is middle-class, web-savvy, legally minded, university-educated and, most importantly, society-hating. They are political extremists whose vision for society is a dysfunctional medieval wasteland without property rights, where an Englishman’s castle is no longer his home …

“If squatters really cared about the homeless then they would help them access council services, not scare them into believing that they would be arrested.”

Mr Weatherley makes an interesting point. Let’s put aside his view that a squatter isn’t really a squatter just because he or she has squatted. The interesting bit is his assertion that “squatters” (the web-savvy anarchist ones) if they cared about squatters (the tiny number of “real” ones) would be out there pointing them in the direction of “council services”.

Such services are indeed available, (see below) though they are pretty limited for people like Mr Gauntlett. But whose job is it to point homeless and roofless people in the right direction? Mr Weatherley seems to think it is a role for the middle class web-savvy anarchists who apparently occupy all the plum squatting sites. It seems more likely, though, to be a duty for the state and emanations of the state – among them the police.

‘It would be much better for us to introduce an offence that is capable of protecting law-abiding property owners and occupiers on the one hand, while working with other government departments, local authorities, the police and homelessness charities … to mitigate any impacts the new offence might have on the levels of rough sleeping’ – Crispin Blunt

Mr Weatherley seems to accept that some squatters need these services but unfortunately the legislation he backed is silent on responsibility for ensuring they get them. We have only the passing comment from the then justice minister Crispin Blunt during the brief Commons debate on the squatting clause:

“Consultation responses indicated that squats can be unhygienic and dangerous places to live and are no place for genuinely vulnerable people. That is why we will ensure that reforms in this area are handled sensitively, in conjunction with wider government initiatives to tackle the root causes of homelessness. We are also working to provide affordable homes and to bring more empty homes back into use.”

Further on he adds: “It would be much better for us to introduce an offence that is capable of protecting law-abiding property owners and occupiers on the one hand, while working with other government departments, local authorities, the police and homelessness charities to continue to address the root causes of homelessness and to mitigate any impacts the new offence might have on the levels of rough sleeping.”

Beyond that it is not clear what policies are now in place to “mitigate any impacts the new offence might have” on rough sleeping. And this is the crucial issue in the light of Mr Gauntlett’s death. The Government and, as mentioned above, “emanations of the state”, including Members of Parliament, have very clear duties to people like Mr Gauntlett. Under the European Convention on Human Rights they should ensure they enjoy “the right to life”. Here is Article Two:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

The second paragraph is unusually restrictive in setting out exceptions about when life can be sacrificed by the state. Such exceptions do not include situations where deaths may result from the passing of laws intended to protect the rights of “law-abiding property owners”.

The new law could result in death in at least two ways: firstly as a result of people being driven from squatting in houses to die in sub-zero temperatures outside; and secondly because they are driven from squats to seek other forms of protection from the elements such as derelict and possibly dangerous industrial and commercial properties.

Mr Weatherley is someone who wants to extend the law against residential squatting to commercial premises. He would doubtless accept that such places aren’t suitable for people to live in and possibly agree with Mr Blunt that squats in general “can be unhygienic and dangerous places”. Banning squatters,  to that extent, may be seen as being in their own interests.

European Court of Human Rights jurisprudence has insisted that national states put in place: “a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life” (see below). Unfortunately Mr Weatherley seems to have failed to include in the anti-squatting legislation a means of helping homeless people who squat out of their unsuitable and possibly dangerous circumstances into reasonably acceptable and safe accommodation. He has opted instead for the solutions of the punitive state – deal with social problems by imposing sanctions and criminal penalties.

It may be unfair to blame Mr Weatherley directly for Mr Gauntlett’s death, but we can say at least this: in promoting legislation that fails to recognise the existence of the marginal homeless and that therefore fails to do anything to help such people, he has made himself part of the problem, not part of the solution.

Twitter: alrich0660

More on the squatting law on Thinking Legally: How protection of property could crumble
Also a piece on Ministry of Justice guidelines on Nearly Legal here.

The Ministry of Justice guidance says:

“There might be instances where the police are asked to clear a residential building that is known to house rough sleepers. In these circumstances, the police might wish to liaise with local authorities and homelessness service providers prior to enforcement action to ensure they are ready to assist if required and give appropriate advice on housing options. This process is likely to work most effectively if protocols on joint working have been developed in advance.
In other circumstances, the fact that somebody is squatting to avoid rough sleeping might only become known once enforcement action has been taken. In these circumstances, liaison with local authorities and homelessness providers would ensure the appropriate advice and assistance is offered to the accused after the point of arrest.”

Note: This post is intended to offer a legal critique of the Section 144 anti-squatting legislation from a human rights perspective. The case of Mr Gauntlett, into whose death an inquest is pending, should not be pre-judged. In particular there is some suggestion that social services did have some involvement with Mr Gauntlett and that the police may have sought to prevent him from breaking and entering the bungalow – an offence that, of course, long predated the new law. Potentially Article 2 of the ECHR could well come into play during a coroner’s inquest into the death of a homeless person since courts are bound by the the Human Rights Act 1998 to take the Convention into account during their deliberations. See R (Middleton) v West Somerset Coroner which notes:

“The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life.

The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated.”

Cases so far
There have been three custodial sentences of squatters in the months following the passing of the new law. Alex Haigh, aged 21, was the first to be jailed after he was arrested for living without permission in a housing association flat in Pimlico, London. Cameron Makepeace, 18, was given an 18-week suspended jail sentence for a separate burglary after he was arrested in an empty house he had entered intending to squat after an estate agent had left the key in the door. Michael Minorczyk, 27, was sentenced to 15 weeks in jail after reportedly refusing to leave an empty property he had been sleeping in. There is no evidence any of them were web-savvy student anarchists.

Council duties
While councils can provide housing for those in priority need as defined in Section 189 of the Housing Act, (mothers, families with children and those statutorily deemed vulnerable), homeless and jobless men don’t usually come within this category even when the temperature is minus 2C and they have nowhere to go. Part III of the National Assistance Act 1948 (Section 21) says local authorities may provide “residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them”. People like Mr Gauntlett may come within “any other circumstances” and may be able to get basic hostel accommodation from the council. Otherwise local authority “advice and assistance” may be made available under Section 192 of the Housing Act, perhaps pointing them to agencies that can provide emergency accommodation if the council cannot.

Vicky Pryce is innocent, OK

If we had had a rather more robust jury in the second Vicky Pryce trial, some pertinent questions might have been put to the judge.

For example: “Why do we have to sit and watch a chap in a funny wig constantly slagging off that poor woman over there?”

Or: “Why did he tell us that we weren’t going to hear evidence from a lady we’ve never heard of, was never mentioned in the first trial and who anyway doesn’t seem to have had any role in Ms Pryce taking driving penalty points for her husband, Chris Huhne?”

Or: “Given the offence took place 10 years ago and the issue was what happened on the fatal day when Pryce was persuaded to take the speeding points,  why did we have to listen to all that scuttlebutt from years later about Huhne’s affair, his relationship with his kids, Pryce’s relationship with journalists, her abortion – all of which is properly the province of the Sun and the Mail, which we can read in our leisure time?”

Or: “Given Chris Huhne has admitted the offence, was the beneficiary of the offence, and was clearly the mastermind behind the offence, why are we wasting vast thousands of public money (and our time as jurors) trying to pin it on his wife as well?”

Some of the answers are clear enough. Take the first and third questions. The denigration of Vicky Pryce by the prosecuting barrister and the consequent examination of how a “woman scorned” sought revenge for the break-up of her marriage years later arose out of the nature of her defence. She pleaded marital coercion – that she was forced or obliged to take the then MEP and rising Liberal Democrat star’s penalty points for him.

The common law of marital coercion was abolished in the Criminal Justice Act 1925 but replaced with the words: “on a charge against a wife for any offence other than treason or murder it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband”. Once the defendant makes the plea, it will be presumed coercion took place unless the prosecution can rebut it.

This the prosecution proceeded to do in the Pryce case – not by showing that Huhne was not present when she signed the legal documents accepting the points or that he didn’t, as a matter of legal fact, coerce her. Instead the line was that a woman like Pryce, feisty, tough, intelligent, a career woman and brainy to boot – her expertise is in the most unwomanly area of economics and she has become rich and famous on the back of it – a woman like that in this day and age could not possibly have been coerced into doing anything by Chris Huhne.

This is why the Pryce team felt it necessary to lay before the court all the intimate evidence that showed family life chez Huhne was not the marriage of equal minds and mutual respect that one might have assumed.

But the prosecution seemed to want to go further. It wanted to prove that Pryce was not merely tough and clever but also, well, evil. That she was a Greek Medea figure, scorned by her husband and not quite up to murdering his children, but certainly prepared to go to any lengths to bring him down.

‘The prosecution case was framed as an attack on tough successful women and the evil that they do when they get together, possibly over a bottle of Lambrusco’

This is where Constance Briscoe, the witness who never was, came in. The rumours about the barrister and part-time judge’s involvement with Pryce had been known to journalists for a while but publication of stories was slapped down by court order when Briscoe was arrested in October. Nothing was to be published about the specific reason for her arrest or her link with Pryce or the fact that there was a police investigation into it.

Nothing was said in the first Pryce trial, halted when the jury couldn’t reach a verdict and seemed rather confused about their job. But suddenly she appeared in an off-stage role in the second trial.

The court was told this woman they’d never heard of might have been a witness but wasn’t going to be; that she was, by implication, an untruthful person because she had been dropped as a “witness of truth” (a concept the jury will never have heard of and would be unlikely to understand) and that she could face charges of perjury or perverting the course of justice (though no charge had yet been brought).

We also heard a bit more scuttlebutt. Briscoe had suffered relationship breakdown as had Pryce. Her partner, Anthony Arlidge QC, had left her at the age of 76 for a woman of 25. Briscoe is 55.

What the jury was to conclude from this was not that men are bastards tossing aside women at will – even women who would commit offences on their behalf – but that women are conniving she-devils ready to bring men down by criminal means if necessary. Andrew Edis QC, prosecuting, said the two women “appear to have cooked up a plan” to destroy Huhne by going to the press about it. We also heard Briscoe was a bit of a drinker, or at any rate, “quite partial to a glass or two” according to a journalistic contact, quoted, apropos of nothing, by the prosecution. So a very bad woman indeed to be a friend of the accused.

The prosecution case was framed as an attack on tough successful women and the evil that they do when they get together, possibly over a bottle of Lambrusco. Thus the judge, when he came to sentence Pryce to 8 months’ jail, was quite clear in his mind that she was “controlling, manipulative and devious”.

There seemed rather less about the fact that Chris Huhne didn’t want to face up to the minor embarrassment of being caught speeding (it would have made the papers for a day or two) or the minor expense (for a millionaire) of having to pay a chauffeur to ferry him about for a bit. Nor about his preference for allowing his wife to take the rap.

It will be interesting to see, once these two have paid their debt to society, which of them first returns to his (or possibly her) honoured place as a member of the establishment.

Twitter: alrich0660

Note: Vicky Pryce’s solicitor, Robert Brown, gives his view that she should have been dealt with as a victim/witness in the case here. He will consider an appeal (whether over conviction or sentence is not clear) when transcripts of the case are issued.

Background
This is a fascinating insight into the thinking of the the trial judge, Sweeney J, regarding marital coercion: ICLR blogpost.
His ruling in full is here. The judge notes that marital coercion involves two elements: that her husband was present and that he “coerced her – that is put pressure of some sort on her to commit the offence in such a way that, as a result, her will was overborne”. He adds that this includes being overborne “to commit the offence out of love for, or loyalty to, her husband or family, or to avoid inconvenience (whether to herself or others)”.

He notes that the prosecution view of the circumstances of the actual offence were as follows: “The Prosecution assert that, at the material time, Ms Pryce was one of the most powerful, intelligent and trusted women in the country. The commission of the offence benefited both of them. In particular, to her and the family’s benefit, it enabled him to pursue his political ambitions and it enabled her to avoid suffering the considerable inconvenience of driving him around (which is what she did suffer when he was banned, a few months later, in October 2003). The crime was, the Prosecution say, the product of a choice made by Ms Pryce (albeit possibly against her better judgment) at a time when she and her husband could be confident that their crime would never be discovered.”

It’s a reasonable case against her and pertinent to the events of 10 years ago – when the offence actually occurred. Yet the prosecution case was made up of attempts to denigrate her for her “woman scorned” revenge after the break-up of the marriage years down the line – paradoxically showing her up as not at all the controlled, steely woman that they portrayed her as for the purposes of showing she couldn’t be “overborne” by Huhne.

The argument of this post is that the defence sought – successfully – to show her as a vengeful she-devil over a period of years and that this is why the second jury convicted. The first was both confused and unconvinced. One might add that the idea of “one of the most powerful, intelligent and trusted women in the country” driving her husband around (as she did, apparently, later on) suggests that she was not the one wearing the trousers in that relationship, nor was she quite regarded as Huhne’s equal in it, despite what the prosecution tried to assert. She had to serve his ambition and his consequent travel needs, whether by taking his speeding points or becoming his unpaid chauffeuse.

Note: On 22 April 2013 Southwark Crown Court announced: “In the course of the submissions made on behalf of Christopher Huhne that he should not be responsible for the entirety of the prosecutions costs application against him, the court was referred to the applications he made for witness summonses that resulted in documentation relating to Constance Briscoe coming to light, which led to allegations being made against her.”

Extinguishing the right to light by prescription

UK Prime Minister David Cameron has likened his battle against planning regulation to the war against Nazi Germany. Now it looks as if a Blitz-style blackout will be a crucial part of Britain’s bid to build itself out of recession. The government wants to abolish the right to light.

The thinking is that valuable developments are being prevented by the centuries-old “easement” of light, whereby the owners or occupiers of one building should not have light reduced by new buildings or other blockages on neighbouring ground. The Law Commission has been tasked with reviewing the law – preferably to get rid of it.

The case that has set the bees buzzing around government ministers’ bonnets is HKRUK II (CHC) Ltd v Heaney (2010) in which developers built two new storeys to a property in Leeds and a judge issued an injunction requiring them to be removed since they blocked some of the light to a nearby building.

Facts of the case
Marcus Alexander Heaney owns a fine Victorian building in Leeds, formerly a Yorkshire Penny Bank, which he had converted into offices and a conference centre. It benefits from “the easement of light” through “prescription” – meaning it had enjoyed the light for at least 20 years and hence had an indefeasible right to it (see below for legal explanation).

In 2007 the developers (Highcross for short) bought part of Cloth Hall Court, across the road from the old bank, and added a sixth and seventh floor to it, depriving the old bank of a small amount of light. Highcross knew the right to light was an issue but saw it as one of potential compensation, not enforced demolition of the extra storeys. They had bought the property at a discount of £350,000 for that reason, and set aside a £200,000 contingency to deal with the matter.

There were negotiations with Heaney, but, unusually in such cases, the “servient owner” (ie the developer owing the duty to allow light to the “dominant tenement”) took the step of putting the matter before a court in 2009 by issuing a claim for a declaration – expecting it to be for compensation rather than an injunction requiring the removal of the floors. Heaney counterclaimed for injunction.

There are such things in this world as light surveyors who can assess sunlight entering windows. Valuations can then be done on the basis of the business value of that light to one building compared and contrasted with the business value of new development on the other. Needless to say the reports from each side were not in agreement. That from Heaney’s surveyor suggested a settlement based on a third to a half of the profit on the two extra storeys of they nearby building (around £1m). One from the developers’ surveyor suggested “the loss of light would only have a limited impact on [the old bank’s] value”.

The judgment
The decision of a court to order compensation rather than an injunction to stop (or undo) building work is governed by the principles of Shelfer v City of London Electric Lighting Co (1895). According to this case compensation may be applied if:

• the injury to the claimant is small;
• it is capable of being estimated in money;
• it can be adequately compensated by money;
• and it would be oppressive (to the developers) to grant an injunction.

Although the loss of light was to floor space less than 1% of the whole building, the impact on certain rooms might be much bigger than that implies. For example there was a large loss of light to the “star room” of the bank building, the board room. Judge Langan QC, at Leeds High Court, decided that: “the injury done to the defendant’s rights in this case lies close to the margin of what is, and what is not, small for the purposes of the first of the Shelfer criteria”.

‘When the access and use of light to and for any dwelling house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing’ – Prescription Act 1832

He accepted the injury could be satisfied with money; that the owner could either get damages for nuisance or a buy-out of his right to injunction. However, he set the potential compensation at £225,000, which he decided was not a “small” figure in Shelfer terms, making injunction more appropriate.

On the issue of “oppression” there was the huge loss of removing the parts of the building blocking light and issues about the behaviour of Heaney in not initiating court proceedings or seeking injunction as the building went on. But the judge declared the infringement neither trivial nor inadvertent (in that the developers knew of the problem from the start but carried on building). Smaller storeys could have been built without infringing the right to light. Courts are not in the business of sanctioning unlawful behaviour.

Change in the law
The Law Commission only touched on the right to light in a 2011 report on easements, but under new orders from the Government seems minded to suggest a major change.

Prof Elizabeth Cooke, the Law Commissioner leading the project, is reported to have said that “while such a right [to light] was important ‘there is also a public interest in the development of the modern, high-quality residential, office and commercial development that we need in our town and city centres’”.

But there lies the fiendish complication behind any change. If the right to light is removed, albeit with some form of compensation regime in place rather than outright abolition, it opens the doors to the potential destruction of business, never mind damage to residential environments.

Take one of the leading right to light cases, Allen v Greenwood (1980) which was about a fence and caravan blocking light to a greenhouse where tomatoes were grown. An argument that there was no right to heat or direct rays of the sun was rejected, with Lord Justice Buckley asserting instead that: “the amount of light to which a dominant owner is entitled under a prescriptive claim is sufficient light, according to ordinary notions, for the comfortable or beneficial use of the building in question, again according to ordinary notions, for such purposes as would constitute normal uses of a building of its particular character. If the building be a dwelling house, the measure must be related to reasonable standards of comfort as a dwelling house. If it be a warehouse, a shop or a factory, the measure must be related to reasonable standards of comfort or beneficial use … If the building be a greenhouse, the measure must, in my opinion, be related to its reasonably satisfactory use as a greenhouse.”

This suggests that the business that is already established has a right to the necessary light from the sun to continue its business as before. What the new law is likely to suggest is that a new business can trash an old business or render it less profitable – simply because new business and development must be promoted. One assumes that there will be some form of complex compensation in place utilising the calculations of the light surveyors, but in fairness these calculations must take into full account the loss to the traditional business – and make up for any loss of light that might actually drive the business into bankruptcy.

The results could be bizarre, a sort of Futurist nightmare with new buildings constantly going up and, like giant trees, killing off all those in the shade around them or else being forced to subsidise the continuance of neighbouring businesses like zombie firms.

The approach is sanctioned by economic theory. If one firm can make better use of space and compensate another fully for its resulting losses, that, according to theoreticians, would be a profit-maximizing and Pareto-efficient outcome. But in the real world, for those in the shadow of the onward march of the giants – forced into desperate negotiations and costly court cases (light surveyors don’t come cheap), it is an unnerving prospect.

Note on the current law

According to the Prescription Act 1832, section 3:

“When the access and use of light to and for any dwelling house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.”

For prescription to work, the owners or occupiers of the land that benefits (the “dominant tenement”) must access the “easement of light” (as with any other easement such as a footpath across a neighbour’s land) without secrecy or force. The owners of the other property (the “servient tenement”, that is, the land with the burden of the right) must have acquiesced with neither an actual agreement (which would make it a limited licence) nor evidence of opposition. The right to light is a negative easement – it prevents the servient owner acting in a way that would deny or reduce the benefit.

Cases and materials
Allen V Greenwood [1980] Ch 119
Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287
HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch)

Law Commission’s 2011 report (pdf):
 Making Land Work: Easements, Covenants and Profits a Prendre [PDF, 1.67mb]

A report on the case is here

It’s time for the seasonal shows – with Shami Chakrabarti as leading lady and Matthew Hancock as handsome prince

It is that time when one looks over the last 12 months to give an overview of the most significant legal stories of the year, those in particular that are likely to have significant ramifications in 2013.

Prime amongst them must surely be the irresistible rise and rise of Shami Chakrabarti, director of Liberty. Constantly seen on Question Time and Newsnight; bracketed (when it comes to Olympic flag-waving) with nobel prize winners, UN general secretaries and sporting deities such as Muhammad Ali; garlanded with symbols of monarchical approval (she got a CBE in 2007); and honoured by a place under the benign eye of the saintly Lord Justice Leveson.

And now she is to be fast-tracked into the upper levels of the judiciary. Well, that is perhaps an exaggeration, but she will take her place among other “distinguished jurists” who will lecture other judges on “Being a judge in the modern world”.

The programme organised by the Judicial College comprises four lectures over the coming months by Lord Carnworth of the Supreme Court, Lord Chief Justice Lord Judge, the aforementioned Lord Justice Leveson – and young Shami, a civil liberties campaigner and former Home Office barrister.

Now, one would not wish to hazard a guess as to which of these legal luminaries will be the biggest draw (tickets are limited, but don’t all rush at once – you have to be a judge to attend, even if not to speak). But one wonders whether the College ran out of starry judicial names to fill the modest halls they have hired up and down the country (Shami will be doing Manchester). In particular, perhaps the failings of the judicial appointments processes have left the upper levels of judicial posts so lacking in female holders (see Alrich blogposts passim) that none of the few there are was available for the gig.

But it is a singular honour for Shami, recognition commensurate with her burgeoning career as darling of the establishment. How soon can we expect the Baroness Chakrabarti of Kenton to grace the Mother of Parliaments?

Cinderella sector
It’s panto time and here’s a Cinderella story involving a handsome prince (the Skills Minister Matthew Hancock) and a hard-worked and overlooked serving girl who deserves better in life. Hancock has announced that a swath of high level professional careers, including law, will now be made available to post-A-level students on an apprenticeship basis.

He said there was no reason why aspiring lawyers cannot attain the qualifications without first getting a degree, “starting on-the-job training in an apprenticeship from day one”. And he has been having talks with BPP, the huge and hungry corporatist education “provider” owned by giant US conglomerate Apollo Global, to do the job.

There is no mention of his talking to the non-private university sector, doubtless perfectly willing to take on this work. Is this an example of the Government, wholly contrary to its political claims, picking winners in the private sector and shovelling more opportunities their way? It certainly looks like it, particularly given that the principle and practice of an apprenticeship pathway into the legal world is by no means new. People working in legal establishments have been able to do this for half a century through the CILEx route (formerly ILEX). This is overseen by the Chartered Institute of Legal Executives which owns ITC, a distance learning legal training provider.

According to their blurb students include “aspiring solicitors and chartered legal executives, legal support staff, students from many local authorities, government departments and commercial organisations, as well as from ITC’s client organisations such as the Crown Prosecution Service”.

The new regime will allow apprenticeship study to level 6 and 7 – graduate level (a service offered already by CILEx through a university partnership) and to postgraduate level. Hancock and the Department of Business press release make no mention of CILEx’s apprenticeship work nor any role it might have in “delivering” the new scheme.

But then, it’s not a huge and hungry corporatist education provider owned by a giant US conglomerate.

Be very afraid
Among foreign legal innovations in 2012 that could have interesting applications if introduced to Britain is the apparent willingness of authorities to prosecute experts for their failure to predict things. Thus seven Italian scientists were sentenced to jail for giving “false assurances” a week before the Abruzzo earthquake.

In France a psychiatrist was found guilty of involuntary homicide for failing to stop a patient going on a murderous rampage with an axe.

In more superstitious times magicians were required to produce predictions for their masters, preferably rather positive ones, and were duly punished if they got them wrong. Now our superstitious faith has been transferred to all manner of experts with academic qualifications despite science being, by its essence, the art of uncertainty.

So how would it affect Britain? For starters, those liable under the new law would include former Chancellor of the Exchequer and Prime Minister Gordon Brown, who may have “saved the world” from recession but unfortunately failed to predict the almighty cataclysm that plunged the world into the recession in the first place.

Next in the dock, of course, would be Conservative Chancellor, George Osborne, who started in his role confidently but, as it turned out, gave false assurances about his own ability to get us out of Brown’s pickle. Or they would have constituted “false assurances” if anyone had believed him.

But surely there is one man who would sleep most uncomfortably if the foreign legal innovations were imported into Britain. Yes, weatherman Michael Fish, of course, who asserted 25 years ago that people should not worry about the coming of what turned out to be the Great Storm of ’87. Since then the Met Office has invested in better quality seaweed and pine cones, but it still can’t reliably predict more than three days ahead.

Queen’s move
A significant, and dangerous, constitutional innovation occurred towards the back end of 2012: the Queen attended a Cabinet meeting. This smashes a royal gold-bedecked coach and horses through constitutional niceties regarding separation of powers and the effects are likely to reverberate through the coming year.

Her Majesty, of course, is not supposed to involve herself in politics, yet her appearance at the Cabinet table resulted in her wading knee deep into them. For one thing, she demanded less legislation from our legislators. If that is not a royal commandment fettering the parliamentary discretion of our democratic leaders, nothing is.

She attended a discussion on the accession to the throne, a matter that has caused war and revolution in the past. One cannot but think her stern regard would have somewhat stymied free debate on this important constitutional matter.

But worst of all, it seemed necessary to provide her with presents as a souvenir of her historic visit. So they gave her a chunk of the Antarctic.

Unfortunately in naming Queen Elizabeth Land the Government has trodden with leaden boots on international sensibilities. The land is claimed by Argentina, just as the Falklands was. The upshot of the Queen’s meddling in politics is that it is likely a state of war will soon exist between Great Britain and the Argentine. Happy New Year!

Twitter: alrich0660

Note: Since publication of the above on the Matthew Hancock announcement, CILEx has issued its own views on the apprenticeship scheme. See The Lawyer and the Law Society Gazette: Legal Apprenticeships No Threat to CILEx.

In a further press release it has said: “The chief executive of CILEx, Diane Burleigh OBE, warns that any work towards a National Apprenticeship, leading to a full lawyer qualification, must not be carried out without comprehensive discussions with all current legal regulators and professional associations … ‘There need not be a costly ‘starting-from-scratch’ process here. CILEx has been providing high quality apprenticeship style legal training for 50 years. We offer qualifications that can see school leavers become fully qualified lawyers as Chartered Legal Executives and we enable law graduates to take a vocational route to becoming a solicitor. We also offer qualifications addressing the needs of paralegals and their employers’.”

 

We need a judicial review into who’s killing JR

Here’s a riddle wrapped up in a paradox: could judges using the power of judicial review strike down David Cameron’s attempts to curb the use of judicial review?

The British Prime Minister has complained at people exercising their right to hold the executive to account. He wants to “reduce the time limit when people can bring cases; charge more for reviews – so people think twice about time-wasting”.

Now let us remind ourselves of the chilling threat issued by Baron Steyn, of Swafield in the County of Norfolk. In R (Jackson) v Attorney General (House of Lords case 2006) he said on the supremacy of Parliament:

“The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”

He is saying that if Parliament sought to abolish judicial review, courts would have to defy Parliament even though Parliament is sovereign. The rationale for his position is that there exists in Britain the rule of law. You know the one: the rule that says the Government is subject to the law, just like everyone else. The one the Government, and particularly the Prime Minister, David Cameron, keeps forgetting.

Sir George Young, Bt, and the original cash for honours scandal

So what exactly is a baronet? We need to know to understand, in these class-sensitive times, following hard on “plebgate”, whether the appointment of Sir George Young, Bart, as the UK Government’s Chief Whip upsets the delicately crafted social balance of the British Cabinet. Is Sir George a bat’s squeak more posh or a smidgin more plebeian than Hampstead-born, Rugby and Cambridge-educated ex-Army officer and former Lazards banker Andrew Mitchell?

Young is well loved as the gentlemanly bicycling baronet, his copybook slightly blotted by his witty apothegm: “The homeless are what you step over when you come out of the opera” – often quoted out of context, as here. Those were more vulgar, more Thatcherite times. The Conservative party is now, of course, intensely relaxed about the filthy poor.

But back to the baronetcy. Behind it lies a shocking tale of snobbery and social climbing, naked patronage and the original cash for honours scandal.