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Grenfell effigy bonfire and Section 4A – a flawed piece of legislation

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Was a criminal offence committed when a group of friends took it into their head to mock up a Grenfell Tower cardboard effigy and set it ablaze on Bonfire Night? The short answer would seem to be … it’s complex – and that the law six of them have been arrested on is deeply flawed and potentially oppressive.

The question for the police is: did their action amount to causing intentional harassment, alarm or distress according to Section 4A of the Public Order Act 1986? This says:

  1. A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—
    (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
    (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
    thereby causing that or another person harassment, alarm or distress.

The cardboard Grenfell Tower is a “visible representation” and setting it alight is “behaviour”. But the issue is the motivation of those doing it. Leaving aside the social media issue, the burning of the effigy was in a private garden – possibly among like-minded friends. Can the police show intention to cause  harassment, alarm or distress to a particularly defined group? Can they also show that such harm was, in fact, caused?

The Section 4A provision of the Act that the police are using is something of a confused botch-up. Significant parts of the Public Order Act are very much about public, open places or public buildings. It is about avoiding public disorder: riot, affray, provocation of violence; that sort of thing.

But Section 4A was introduced in the Criminal Justice and Public Order Act 1994, at a time when a new sense of public threat was abroad under a tough new Home Secretary, Michael Howard (the 1994 Act also cracks down on trespassers and squatters). The political focus was on victims and toughening up the law dealing with the remarkably subjective harms of “harassment, alarm or distress” (wording also in Section 5, and controversially so; see Harvey v DPP 2011; see here) but not explicitly in a there-and-then public space.

In contrast, Section 4 (part of the original Act) on provocation uses similar wording, criminalising threatening, abusive and insulting words and behaviour and visible representations etc but only insofar as there is “intent to cause that person [the victim] to believe that immediate unlawful violence will be used against him or another by any person”.

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Can Sir Philip Green suppress media interest in his ‘banter’?

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So it was just banter. That is how British entrepreneur Sir Philip Green is defending his behaviour towards employees – and presumably defending his right to keep his behaviour secret with the full weight of a permanent High Court injunction. But hasn’t his statement to the Mail on Sunday (“There has obviously from time to time been some banter, but as far as I’m concerned that’s never been offensive”) rather undermined his case for such an injunction?

The essence of the case is that his behaviour, as covered by non-disclosure agreements with alleged victims, is a private matter. It comes within the English Common Law “equitable doctrine of confidence”, that is to say confidentiality, particularly applicable to the relationship between employer and employee. “The doctrine serves the public interest by encouraging trust, candour and good faith in legal relationships,” as Mr Justice Haddon-Cave expressed it in the original High Court injunction case (which Green and two associated companies lost).

One has to ask, of course, whether Sir Philip’s “banter”, was likely to encourage “trust, candour and good faith” with his employees. He insists: “I’ve got a good relationship with all my staff” – though some would seem to disagree. But the legal point is that Green and his lawyers have to establish the issue as one of confidentiality/privacy since that is the only way they can exercise power over the media to bar publication. This is the reason for his rather carefully worded (and hence rather odd) statement when his name was revealed in the House of Lords by Peter Hain:

“to the extent that it is suggested that I have been guilty of unlawful sexual or racist behaviour, I categorically and wholly deny these allegations”.   

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Who pays for Grenfell-style cladding? The government plan

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Various UK government ministers have insisted that those living in flats with flammable Grenfell-style cladding should not have to pay for it to be stripped from their blocks and replaced. The latest view was given by Dominic Raab, Minister of State for Housing and Planning, who told a CIH Housing conference that “leaseholders should not pay those costs. And the private sector should not be let off the hook.”

The legal stituation as it stands is that cost of recladding will very much fall on leaseholders (the people who have bought their flats), as suggested by the Citiscape case (judgment here – not binding but indicative of where we are). So does the Government have a plan? Apparently it does, and Raab’s comments give clues to what it is. In broad terms, this seems to be it:

• The main thrust of the plan will be for those leaseholders who have bought their flats from local authorities or through housing association schemes (such as right to acquire or shared ownership). As the law stands, one would expect the LAs and housing associations to get the recladding done and bill the leaseholders for their share. (Note that other tenants may be in those flats who would never have faced such costs.) Instead:

• The Government will dip into its affordable housing budget and will use it to fund 50% (according to rumours) of the costs of recladding for leaseholders in the above categories. The implication of Raab’s words at the conference is that the local authorities and housing associations will fund the rest of the cost on behalf of leaseholders (as well as the full cost for the rest of their flats in the blocks ie those with tenants rather than leaseholders).

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‘Inaccurate and misleading’: Judge rejects Legal Aid Agency’s attack on eviction advice service

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A High Court judge has delivered a devastating crtitique of the UK Legal Aid Agency over its moves to change the way people facing eviction or repossession of their homes receive legal help. A crucial part of his argument for the change was based on a claim that was “both inaccurate and misleading” – or, as will be seen (and thankfully this blogpost can be less circumspect in its language), what is commonly known as “untrue”. The LAA had claimed two lawyers organisations backed the changes. In fact they had not been asked for their view.

The arguments of the Ministry of Justice and the Legal Aid Agency used to justify the change were “based on assumption or conjecture or, at most, ‘anecdotal’ evidence from a handful of un-named providers [of the legal services]”, said Mrs Justice Andrews, hearing a judicial review application brought by the Law Centres Network (pdf) in the High Court.

The matter at issue was the Housing Possession Court Duty (HPCD) schemes that seek to ensure on-the-day legal advice and representation for people in court facing repossession and eviction. They are largely funded by legal aid to the tune of £3.6m a year – 0.2% of the legal aid total – and in many cases not-for-profit organisations, including local law centres, have the contracts to do the work.

Around 2014 the Legal Aid Agency suggested the schemes should be subject to price competition for the first time and re-tendered in a more consolidated form – ie a reduced number of schemes covering wider areas rather than focused on local courts. (At around this time there were were 117 HPCD schemes covering 167 courts; this was to be reduced to less than 50).

The argument was that some providers had withdrawn from offering schemes for economic reasons and  the change would promote “sustainability” (that weasel word meaning anything and nothing). But Andrews found no evidence for either contention. Read the rest of this entry

How Labour opened hostilities against the Windrush generation

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“Gloria Fletcher wouldn’t have lost her job as a consequence of anything a Labour government did.” How wrong Labour MP Jack Dromey was when he made this confident statement on Radio 4’s Westminster Hour (at 38 mins) about one of the victims of the Windrush scandal. He was seeking to distinguish his party from the UK Conservative government that put in place the “hostile environment” against immigrants — with appalling effects on the Windrush generation in particular.

But it looks as if Dromey was wrong when he claimed that Gloria Fletcher, sacked after 36 years’ working in the same job in Britain, would never have fallen foul of Labour immigration policy. In fact she seems to have been the victim to Labour’s own legislation, passed as far back as 2006, to institute a “hostile environment” in order to drive out illegal immigrants from employment.

Labour’s 2006 Immigration, Asylum and Nationality Act at Section 15 says:

(1) It is contrary to this section to employ an adult subject to immigration  control if [broadly, s/he is an immigrant without leave to remain].

(3) An employer is excused from paying a penalty [for employing such a person] if he shows that he complied with any prescribed requirements in relation to the employment.

It turns out that, to avoid a penalty of up to £10,000 for, even unknowingly, employing a person without a legal right to be in Britain, the employer must have checked his/her documentation — a passport, for example, or any other relevant immigration document. This is what Mrs Fletcher had to show her new employer (after her firm was taken over). And since she had been in the country perfectly legally for 50 years without needing a passport or other document to stay, she could not produce the required proof.

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Citiscape: Tribunal says leaseholders must pay for cladding

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Note: Since this case Barratt, the builders, has agreed to pay for the cladding and firewatch.

The property tribunal considering who should pay for possibly unsafe cladding on a pair of London tower blocks, Citiscape, has delivered a blow to the leaseholders who own the individual flats. It has confirmed they must pay huge bills for replacement cladding after the Grenfell Tower tragedy highlighted dangers.

Leaseholders in the Croydon, South London, blocks had argued that the cladding – presumably perfectly legal when it went up – should now be treated as defective owing to post-Grenfell changes in regulation. They argued the freeholder, Proxima GR Properties, ultimately owned by the Tchenguiz family trust of property tycoon Vincent Tchenguiz, should pay. Or else the managing agent, FirstPort, should pay and then find who the money is due from: freeholder or developer or insurer or cladding manufacturer or possibly even the Government.

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Citiscape cladding case at the Property Tribunal: report

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Note: The Tribunal has now [March 2018] ruled against the leaseholders; report here.

The first battle in the tortuous struggle over who pays what for post-Grenfell tower block cladding has shown how complex this issue is going to be – but also offered some clues as to how the battle lines will be drawn up. One of the leaseholders of the Citiscape blocks in Croydon, south London, made a compelling submission to the Property Tribunal in London to explain why leaseholders should not have to pay for replacing allegedly dangerous cladding.

New government regulations require blocks to be stripped of cladding of the sort assumed to have been the cause of the Grenfell Tower fire tragedy in Kensington, west London, last year.

The issue of who pays will come down, not to who has the most money – freeholders or leaseholders – nor to the “moral case” according to Sajid Javid, Secretary of State for Housing (that “the tab should be picked up by the freeholders of those properties”). It will come down to interpretation of the leases between freeholders, who own the land (and hence are paid annual ground rents), and leaseholders who have bought flats in the blocks up and down the country (and hence have to pay the annual service charges for work on the buildings and administration).

The flats are bought on leasehold which means they revert back to the freeholder after a term of years – in the Citiscape case 999 years in total (they were built in 2004). This period is deemed “almost freehold” (ie almost as if the leaseholders owned outright), and that fact may have a bearing on the eventual outcome of the case. Note also that not all leases are the same, so the Citiscape case may give clues for other cases (of which there are likely to be many) but won’t be a precedent.

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