Jenny Rowe appointed Chief Executive of Supreme Court

January 22 2008

Minijust has announced that Jenny Rowe will be the first chief executive of the Supreme Court. Until it opens officially for business in late 2009 she’ll be working with the Law Lords to manage the transition, as well as setting up the court’s systems and recruiting the people needed to support them.

This is a very safe appointment: I knew Jenny Rowe at the Attorney General’s Office, and she’s very much the smooth, reassuring, calm, diplomatic and efficient operator one expects to find in the senior civil service. Having worked with ministers for many years, and with a background in what was the Lord Chancellor’s Department, she’ll have no problem working with the Law Lords and organising the court. It’s hard to quibble with this choice.

Having worked as a lawyer in the civil service myself, though, I came to believe the service needed the input of more outsiders at the top; and I do wonder what effect the appointment of someone who’s very much a civil service insider will have on the personality of the new court, on its ethos, its staff and its attitude to the public. The chief executive will have to motivate staff to make into a reality what should be an inspiring, beacon institution; she’ll also have to fight for resources and manage them in a way that delivers absolute legal excellence.

My experience of the civil service generally – and especially of the Attorney General’s Office – was far from that kind of inspiration. The AGO is in many ways a terrific place for a lawyer to work, but when I was there if felt as though there was a war on, and we had to make do and mend. It was a short-term, task-orientated culture where managers were “too busy” to raise their vision and improve systems, or invest in resources, and lawyers were forced to work in sub-optimal ways and with inadequate resources in order to do their jobs. We still made paper submissions to ministers, when other departments did it electronically; the library was embarrassingly under-resourced (I advised on employment law without access to Harvey, the leading employment law encyclopedia – it had been cut before I arrived, and sat on the shelves going steadily out of date); as far as people were concerned, there seemed little time for motivation: no thought seemed to go into lawyers’ careers, or even whether they were doing suitable work for their experience; and the office was far too reliant on temps, some of whom had been there for a long time yet who cannot have felt strong commitment to the office. I don’t blame Jenny Rowe for any of that – but I think the challenge for a civil servant in this new role will be to break completely free of the usual “this will do; it’s how we’ve always done it” mentality that’s often found in Whitehall and in spite of which people manage, somehow, to produce excellence – some of the time at least.

Looking from the outside, one of my touchstones will be openness, as I’ve mentioned before. Fancy logos, poetry and glass doors are all very nice, but beside the point. Will our Supreme Court carry on as the House of Lords does now? Or will we be able to follow proceedings by reading written submissions and same-day (or close) transcripts of hearings? Or even (shock horror) webcasts of hearings, like at the European Court of Human Rights? I think the answers to those questions will tell us a lot.

2008-01-22T13:18:00+00:00Tags: |

European Union (Amendment) Bill

January 21 2008

The Reform Treaty, or Treaty of Lisbon as perhaps I should get used to calling it, is big news again, as the European Union (Amendment) Bill to give effect to it has its second reading today. Here are the explanatory notes. Vaughne Miller’s research paper for the House of Commons library is helpful too, and contains some critical commentary on what’s in the bill, and what’s left out.

At first glance, it seems to me minimalist in one sense – although not all its clauses are strictly necessary for the UK to ratify the treaty. It’s minimalist in the sense that it does as little as can sensibly be done to give the treaty legal effect in the UK: it merely amends the European Communities Act 1972 rather than, say, replacing it with a more up-to-date European Union Act. There’s still some old, out of date guff in the 1972 Act about customs and agricultural levies, if I remember right, that might have been cleared away – but haven’t been.

What the government is up to, I think, is to present the bill in a way that gives the impression that this is just one more amending treaty, like Nice or Amsterdam, and that the new EU – which is arguably a new organisation, created at Lisbon – is just the same one that was founded at Maastricht. The presentational aspect of the bill seems to me vital, as it has always been since we joined – section 2(4) of the 1972 Act was I think a masterpiece of disingenuous and misleading draftsmanship, the boring pianissimo bit between the third comma and the semicolon making the most radical effect of any legislation in our modern constitutional history. So, spun legislation is nothing new when it comes to Europe, but I’d love to have seen a copy of the FCO lawyers’ instructions to the Parliamentary draftsman on this amending bill.

The non-necessary parts of the bill relate to Parliamentary control over the new treaty amendment procedures brought in at Lisbon – in fact they’re politically necessary, though legally dispensable. Plus there’s provision for updating terminology in domestic legislation, from EC to EU.

Clause 2 is the legal meat of the bill – it would make European law as amended at Lisbon part of our domestic law. But I agree with the implication in the research paper that the way the bill excludes from domestic law any provision on the new treaties in so far as it could be applied in relation to the Common Foreign and Security policy might have some unexpected effects as far as trade and development policy is concerned: if decisions in those areas flow from CFSP policies, UK firms and individuals might end up not being bound in UK law by them. But that’s all nerdish stuff of course and no doubt the drafters know what they’re doing better than I do. They probably do.

The research paper suggests clause 8 could be amended to provide for a referendum – I wonder whether, as a strict matter of Parliamentary procedure, that’d be outside the scope of the bill. I note that the critical clause 2 is designed simply to come into effect on Royal Assent. But the government’s said it will make sure a debate on a referendum can take place, so an amendment that would require one must be possible.

2008-01-21T15:54:00+00:00Tags: , |

Bath buns, Lancashire cheese and Parma ham: Protected Designations of Origin

January 21 2008

At the weekend I missed a Comment is Free piece by Leo Hickman, giving an insight into the strage but fun world of European food law on protected designations of origin: you know, parmesan cheese, Arbroath smokies, Bonchester cheese (Bonchester? I’ve never heard of it actually, but it’s protected). All that.

I think he has a point, actually, that we British could be more aggressive about seeking protection: considering the number of German beers and mineral waters listed, I reckon there should be lots of British listings in those categories, too.

2008-01-21T11:17:00+00:00Tags: , |

Richmond Adult Community College v McDougall

January 18 2008

The Court of Appeal gave judgment yesterday in an interesting disability discrimination case about mental illness.

Elizabeth McDougall applied for a job at the college in 2005, and got it – subject to medical checks. But when those checks were made, the college withdrew the job offer. Ms. McDougall suffered from persistent delusional disorder and schizo-affective disorder, and had been treated in 2001-2 in hospital under the Mental Health Act, and then in the community by a consultant psychiatrist, whose view was that she was now fully able to return to work. A bit sad, you might think, that the college felt it had to go back on its offer because of Ms. McDougall’s history of mental illness. I agree.

She made a complaint of disability discrimination to the Employment Tribunal, and the legal issue that went to the court of appeal was whether she was disabled within the meaning of the Disability Discrimination Act 1995.

According to section 1, she’d satisfy the definition if she had

a physical or mental impairment which has a substantial and long term adverse effect on [her] ability to carry out normal day-to-day activities.

Of course Ms. McDougall was not arguing that her underlying mental illness stopped her doing her job; her psychiatrist though it wouldn’t. But Schedule 1, paragraph 2(2) provides that

Where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

If, then, her condition was likely to recur, she’d be disabled, and the dismissal would be discrimination, contrary to section 4(2)(d).

Now, at the time of the dismissal, it would seem to have been reasonable to think the conditions, in their more serious, work-affecting form, wouldn’t be likely to recur: Ms. McDougall was well and fit for work. But as it happened, Ms. McDougall went downhill and the condition did recur, following the dismissal. So when the case reached the Employment Tribunal, how should the tribunal approach the question whether at the time of the alleged discrimination the condition was likely to recur? Would it be right to take into account the knowledge that it did in fact recur? Or should the tribunal ignore that, and consider only the evidence at the time?

The ET ignored the fact of the later recurrence; the Employment Appeal Tribunal reversed that, holding that the later knowledge was relevant; and now the Court of Appeal has reversed the EAT’s ruling, deciding that the later recurrence is not to be taken into account. At the time, Ms. McDougall’s condition was, on the evidence, unlikely to recur – and she was not disabled. The college did not discriminate unlawfully against her.

What I think is strange is how de-coupled the approach of the parties and the Court seems from the social reality here. Of course Ms. McDougall, at the time she got the job, would have hoped her mental health problems were behind her. Had she been asked she would have said, presumably, that they were unlikely to recur. As for the employer, you have to ask why they withdrew their offer: because they feared her mental health problems might well recur, presumably. The reason they dismissed her was obviously because of her mental health problems, and the risk of their recurrence – so it seems very odd indeed that they should be able to argue, now, that at the time they thought it unlikely.

I expect advocates and campaigners on mental illness feel quite gloomy about this case.

2008-01-18T17:29:00+00:00Tags: , , , |

Reform Treaty: categories of competence

January 18 2008

An excellent and helpful post on EU Law Blog earlier this week set out the way the Reform Treaty categorises the competences of the EU under three broad headings: those things only the EU will have power to do and that member states will have given up power in entirely, the areas of the EU’s “exclusive competence” – customs and international trade negotiations are the best-known of these; those competences shared between the EU and member states, in which member states will be able to act to the extent that the EU has not – like the internal market, social policy and the environment; and finally the areas in which the EU can only act to support member state policies – like education and culture.

This clear categorisation of competence is one of the best things about the treaty – it doesn’t involve any significant shift in competence away from member states, but is I think a fair attempt to define where competence is already. But much better to see the lines drawn in black and white. It may even help avoid the kind of creeping competence mentioned in the post.

By the way, I don’t know who writes EU Law Blog (the “about link doesn’t work for me at least) but I love the way he or she uses a diaeresis in words like coöperation and coördinate. I think that’s really cool.

2008-01-18T12:25:00+00:00Tags: , |

Peter Hain: trouble with PPERA

January 14 2008

I’ve blogged often enough before about the Political Parties, Elections and Referendums Act 2000, its requirements in relation to political donations and the offences that can be committed under it. And as I explained yesterday in Consilio’s audio review of the week’s legal news, the Peter Hain case is a big test for the legal and regulatory regime on political donations: if PPERA and the Electoral Commission are to earn public confidence, some time, some politician has to be made an example of, and prosecuted for an offence. In Peter Hain’s case, that’d be under paragraph 12(2) of Schedule 7, unless he can show he took all reasonable steps and exercised all due diligence to ensure donations were reported, in accordance with paragraph 12(3).

I also said in the review that I felt sorry for Peter Hain: this is why. The paragraph 12(3) test of due diligence seems to me a high one, and I doubt it can http://www.gooakley.com/ really be discharged simply on the basis of delegating responsibility to a member of staff. If I were advising someone like Peter Hain in advance of his campaign, I’d have told him he needed to require weekly updates on donation reports so that a failure of compliance could only happen if his staff deceived him contrary to section 61(2) (which applies because of paragraph 9 of Schedule 7, which puts the regulated donee, Peter Hain, in a position analogous to that of party treasurer for this purpose), thus releasing him from personal criminal liability and putting someone else in the frame.

Well, perhaps Peter Hain did something like that, and perhaps the Electoral Commission will accept his explanation that he was too busy to keep proper track as satisfying paragraph 12(3). But my broader point is that I’m not sure, really, that Schedule 7, by placing personal criminal liability personally on candidates for party office, really fits the political realities. It seems to me reasonable, actually, that a candidate for deputy cheap oakley leader should be able to delegate responsibility for matters like donation reports. He should be too busy for that kind of thing. He should be able to focus on campaigning – and in spare moments, serving constituents as an MP, and the general public as a minister. So I think PPERA actually over-regulates the position as regards candidates for party office, and imposes criminal liability personally on the regulated donee in a way that I think is inappropriate.

What I’d like to see is amendment to Schedule 7 so that a regulated donee can nominate a treasurer to be personally responsible for reporting campaign donations, just as parties themselves nominate a treasurer responsible for donation reports, under section 24. That’d be too late for Peter Hain though, and for the Electoral Commission, who now face a major test. Will they pass papers to the CPS?

2017-03-20T08:32:01+00:00Tags: , , |

Consilio weekend audio review: Peter Hain and "donorgate"

January 13 2008

I was invited to take part today in Consilio’s audio review of the week, a new venture in which Charon QC takes half an hour or so to review some of the week’s legal stories that have caught his interest, talking to a variety of legal figures and blawgers along the way. This weekend as well as talking to me about Peter Hain and all that, he interviews John Bolch of Family Lore about dominatrix solicitors and other more serious family cheap oakley sunglasses law issues, to Justin Patten of Human Law on mediation, and to Geeklawyer who denies having a special interest in wigs – and with whom I completely agree on “format shifting”. Kicking off is Peter Rouse of Advizory with his reflections on the week.

A great idea that’s bound to do well, I think: listen to this week’s review here.

If you like that, you’ll be interested in Consilio’s 4-minute daily audio law news, too.

2017-03-20T08:32:09+00:00Tags: , , |

Prosecutor v Taylor

January 9 2008

The other important hearing that re-started this week is the trial of Charles Taylor, former President of Liberia, in front of the Special Court for Sierra Leone, for a number of crimes against humanity committed during the civil war in Sierra Leone between 1997 and 2003 including terrorism (i.e. terrorising the civilian population), murder, rape, use of forced labour and recruitment of child soldiers.

Here’s a Guardian news story http://www.gooakley.com/ about the case; but if you want to follow the trial closely, the essential reading is the Special Court’s website and this astonishing website which is monitoring the case closely. All relevant documents are available, together with transcripts of the evidence – and expert commentary is promised, too.

Here’s the indictment against Taylor.

2017-03-20T08:32:38+00:00Tags: , , |
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