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Archive for September, 2016

Regulation of the “on demand” economy

26/09/2016 | Louisa Hartley
Imagine being able to book your next stay in an exciting new city, get a lift home from a night out with friends within 2 minutes or even being able to order whatever you fancy for your Saturday nigh

Imagine being able to book your next stay in an exciting new city, get a lift home from a night out with friends within 2 minutes or even being able to order whatever you fancy for your Saturday night dinner, all at the click of a button? In fact, you don’t need to imagine anymore as this is now reality. Modern advances in technology have led to what is being termed the “on demand” economy, that is, economic activity being created by online companies serving consumer demand for the immediate provision of services and goods. Examples include Airbnb, Uber and Deliveroo.

However, this evolution in technological innovation and consumer behaviour presents challenges to traditional business models. With new start-up companies and large corporations introducing new ways of conducting business, questions have been raised regarding how this can be regulated and whether the law can keep up with such rapid pace of change.

Advocates of the on demand economy argue that people are offered the chance to work independently and flexibly, in order to supplement their main source of income or fit around their lifestyle. On the other hand, many argue that there are not enough rights for workers and businesses are taking advantage of the people working for them as well as those who use their services as certain regulations do not apply to them.

The main consumer legislation provisions in the UK stem from the 1970s and 1980s, long before the internet and smartphones were around. Even the law governing digital commerce is over a decade old. Trying to govern new business models with old law is proving to be near impossible.

Take Uber as an example, the taxi app service which is currently litigating in courts around the world as to the employment status of its drivers. Uber classes its drivers as partners who are self-employed contractors, whereas many argue that they should be afforded the protection of employees or, at the very least, workers. The status of worker or employee would give drivers basic rights such as the minimum wage and paid statutory holiday, whereas Uber has fewer responsibilities for its drivers when they are viewed as contractors. Similarly there is Deliveroo, the meal delivery service, whose workers are also classed as independent contractors who are responsible for their own insurance as there is no statutory sick pay if they are injured whilst working.

By treating drivers as partners, Uber argues that they have more freedom and flexibility which in turn allows the business to continue to provide customers with the service they demand. Deliveroo puts forward the same reasons for its business model; that contractors benefit just as much as the customer and flexibility would be lost if an employee structure with strict rules and regulations was in place.

Airbnb, the home rental company, also presents challenges as there is little regulation compared to the hotel industry with which it competes. Despite there being safeguards in place, not all of the accommodation advertised meets local laws and regulations, such as City tax which is compulsory in many European countries. Hosts are required to confirm their home complies with applicable local housing laws but there is no regulatory body to check whether they do or not. Some cities, such as Amsterdam and France, have introduced legislation which gives legal support to those wishing to use the site, for example legalising short term rentals. However, when there are reports of landlords evicting long-term tenants in order to instead rent their properties through Airbnb, it is clear that more needs to be put in place in order to uphold the standards and safeguards that traditional business models and companies have to adhere to.

It is hard, if not impossible, to legislate for advances in technology when products and services of the future have not yet been developed. However, the way in which we work and live is continuously changing. Innovation is the key to business success and the law needs to both catch up with, and be efficient in, the ever changing world in which consumers live.

Obtaining Documents and Information About Anonymous Individuals

26/09/2016 | Suzanne Hu
Where someone infringes your legal rights under the veil of anonymity, the law provides a number of methods of uncovering the guilty party. Whilst many use the internet as a tool for good, there a

Where someone infringes your legal rights under the veil of anonymity, the law provides a number of methods of uncovering the guilty party.

Whilst many use the internet as a tool for good, there are those who exploit the anonymity that the internet appears to present in order to take advantage of or harm others. This harm can include a breach of your legal rights, such as defamation or copyright infringement for example.

Not knowing who is responsible can, understandably, put companies and individuals off from pursuing their rights. However, most perpetrators leave behind a fairly accessible footprint in which case the law provides for the means to follow this trail to the guilty party.

Norwich Pharmacal order

A Norwich Pharmacal order (“NPO”) requires the disclosure of documents or information by someone who is either involved or mixed up in the wrongdoing, but who is (generally) unlikely to be a party to the potential proceedings.

For example, if someone anonymously posts defamatory material about you or your company on an online discussion forum, you could apply for a NPO against the operator of that website to disclose the subscription details of the poster. If someone copies your or your company’s intellectual property on its website which provides no contact details, you could apply for a NPO against the domain host of that website to disclose the registration details of the website owner.

A NPO is not restricted to online infringements, but has come to be used in this arena more and more due to the rapid growth of the internet and its online identity culture where users frequently use pseudonyms. NPOs were, in fact, established in 1974, well before the internet became part of mainstream life.

In addition to identifying the wrongdoer, a NPO can also be used to obtain information from the third party to help you plead your case (or even your defence) or trace assets.

You would need to give full and frank disclosure of all material facts and provide a cross-undertaking in damages (i.e. if the third party suffers loss due to the NPO, and it is subsequently held that you were not entitled to the NPO, then you must compensate that third party) and demonstrate that you are good for this undertaking. You would usually be ordered to pay the third party’s costs of the NPO application and providing the disclosure itself.

However, the benefits of a NPO are that you do not need to have an express intention to issue proceedings. You only need to show that there is a good arguable case of the wrongdoing; that the third party is likely to have relevant documents or information, is either involved or mixed up in the wrongdoing, but is unlikely to be a party to the potential proceedings (there has been some relaxation of this latter requirement); and that such an order is necessary in the interests of justice and there are no other Civil Procedure Rules that would be applicable instead.

Those are CPR31.16 (pre-action disclosure) and CPR31.17 (non-party disclosure):

  • a Pre-action Disclosure Order (“PDO”) requires the disclosure of documents by someone who is likely to be a party to the proceedings. The documents sought must fall within the scope of standard disclosure (essentially, this means that they would either support or adversely affect your case or another party’s case). There must be a real prospect of the proceedings, and the PDO must be desirable in order to dispose fairly of the anticipated proceedings, assist the dispute to be resolved without proceedings or save costs;
  • a Non-party Disclosure Order (“NDO”) requires the disclosure of documents by someone who is a party to the proceedings. The documents sought must either support your case or adversely affect another party’s case. The proceedings must already have been issued, and the NDO must be necessary to dispose fairly of those proceedings or save costs. Even where there is a high level of confidentiality applying to those documents, this will not defeat a NDO although it might be a “highly material consideration” as was held by the High Court in the case of Destiny Investments (1993) Ltd and another v TH Holdings Ltd (formerly Tonstate (Hotels) Ltd) and another [2016] EWHC 507 (Ch) in which Rosenblatt successfully obtained a NDO against the global accounting firm, KPMG, for various documents and information pertaining to its clients’ (the Defendants’) audit files.

As you can see, there are higher thresholds for you to meet in terms of the status of the proceedings, the disclosure sought and the overarching aims that the order would serve. Another advantage to a NPO is that you can obtain documents and information, whereas a PDO and a NDO limit disclosure to documents only.

Blaney’s Blarney order

However, if the ultimate aim is to discover the identity of the guilty party who you would issue proceedings against, then involving a third party obviously adds on another layer of costs which you would have to bear upfront. There may even be further parties in the trail that leads to uncovering the guilty party. Furthermore, it can be more difficult and costly to obtain and enforce a NPO if the third party is abroad. In such cases, a Blaney’s Blarney Order (“BBO”) – which we briefly mentioned in our previous article “Tribunal obscures ICO Guidance on Freedom Of Information Requests made via Twitter” – may prove useful.

In the case of Donald Blaney v Person(s) unknown, (1 October 2009, not reported) an order compelling an anonymous tweeter to identify him/herself was permitted to be served directly upon that individual via Twitter.

According to a case note written by his barrister, Mr Blaney, a political blogger, applied for an injunction to restrain an anonymous tweeter from impersonating him. However, there was no known address at which to serve the injunction. Rather than take the usual route of a NPO (which, in this instance, would have been an order against Twitter, and potentially also the Internet Service Provider if the anonymous individual had registered his/her Twitter account with false information), Mr Blaney applied for the injunction to be served via Twitter (that is to say, by a short private message containing a hyperlink to the full order sent to the anonymous individual’s Twitter account).

Mr Justice Lewison (as he then was) held that as there was “a prima facia case in passing off, copyright and moral right infringement, an injunction was suitable in this case. As the proposed defendant could not be identified, it was suitable to issue an Order compelling them to identify themselves. Service via Twitter as an alternative method of service under Civil Procedure Rule 6.27 was well within the meaning of the Civil Procedure Rules.

The anonymous individual provided his/her name and address for service in compliance with the BBO, meaning Mr Blaney did not have to resort to his back-up plan of a NPO.

There are various legal and procedural requirements involved in obtaining the orders mentioned above. In addition, there are other options for obtaining documents held by third parties such as Bankers’ Trust Orders and Freezing Orders which may be more appropriate. Should you find yourself in need of obtaining information and/or documentation to assist with the pursuit of potential legal proceedings, we recommend that you seek advice from a legal professional qualified in dispute resolution.

This article should not be taken as definitive legal advice on any of the subjects covered.  If you do require legal advice in relation to any of the above, please contact Simon Walton on 020 7955 1455 or any member of the Rosenblatt Dispute Resolution Department.

The Reality of Red Tape

23/09/2016 | Nick Leigh
Following Brexit, what can firms and businesses expect with regard to changes (or otherwise) of the burdens of regulation? “Brussels red tape” has long been a phrase that, once said, required

Following Brexit, what can firms and businesses expect with regard to changes (or otherwise) of the burdens of regulation?

Brussels red tape” has long been a phrase that, once said, required no further explanation. Never used in a complimentary manner, instead the image conjured was of continental androids walking into humble, hard-working British businesses and literally wrapping red tape around staff and managers alike, until nothing could be seen but for eyes and a row of blood-coloured mummies. The purpose of such red tape, users of the phrase believed, was to stifle British business, so as to make it as uncompetitive as those elsewhere in the EU, removing our national advantage. One of the many expectations of post-Brexit Britain was that this red tape would vanish in a bonfire that could be seen from Lisbon to Bucharest. But is this actually likely to happen?

In the period before the EU Referendum, the following comparison found great currency on social media: “Lord’s Prayer – 66 words; 10 Commandments – 179 words; Gettysburg address – 286 words; EU regulations on the sale of cabbage – 26,911 words”. What more proof could there be that Brussels need not be tamed, but escaped? According to some, the EU would simply keep on spilling out red tape that cost the British economy a reported £33 billion pounds annually.

This of course was not the only incident used to ridicule the EU. Over the years, there have been many other examples of rule makers in the EU appearing to go a little funny in the head. Commission Regulation 2257/94 is perhaps the most famous. If you do not recognise the name of the law, you will be familiar with its subject: bananas. The EU, it was said, sought to ban bananas that were excessively straight or bendy. Whether this meant bananas shaped as a right angle or those that curled back on themselves several times did not seem to be in question – the mere suggestion of a ban of British bananas on the grounds they were corrupt was enough to make Eurosceptics reach for the Union Flag.

The fact that the banana rumour was not true did not stop it becoming a cause celebre. Rather than seeking to strangle British businesses, the intention (if not always the achievement) was to reduce rather than increase the costs of doing business, simplifying rather than restricting trade. After all, would you buy a right-angled banana covered in bruises?

As for the cabbage, there are no specific EU regulations relating to its sale. Research into the claim shows that the 26,911 word myth originated in America in the 1940s. The claim somehow leapt across the Atlantic, to be used by a Conservative MP, William Teeling, when referring to the control of the British use of eggs. The 26,911 word count thereafter attached itself to a number of attempts to ridicule excessive red tape, not least that coming from Brussels.

Still, such myths were strong enough to form part of the thinking of the British general public when it came to vote in the EU Referendum, many voters having, for years, been affected by the relentless, inaccurate coverage. Yet, in sharp contrast to the figure quoted above, rather than costing the UK economy £33 billion per year, others – including the UK government – say that Britain benefits from the Single Market by more than £90 billion annually, the red tape – that is, the regulation that seeks to address market failures and boost trade between the nations – being one of the major contributing factors. Which of the two numbers you prefer will likely depend on your politics, but as far as the EU is concerned, these rules work, and will not be going anywhere even if Britain is. So, whatever shape the relationship between the UK and the EU eventually takes, trade with the countries of the Single Market will still have to be conducted against the standards set by EU regulation. Which means British businesses wanting to have access to the Single Market will still be subject to Brussels red tape.

There are two other factors that will disappoint those who believe that Brexit will mean an instant and massive lightening of the burden of EU regulation upon businesses, even those that trade only within the UK and have no international ambitions.

The first is that Britain will likely keep most, if not all of this regulation. Most EU laws have been implemented by the UK legislature and is therefore on the UK statute books already. Meanwhile, much EU law reflects modern global thinking rather than a crazy Eurocrat’s scheme to hobble Britannia; it is likely that, if it has not influenced such thinking itself, the British government will wish to mould its own laws to reflect what is going on elsewhere in the world. And – egad! – much EU law has proved popular with the British public. During the Referendum campaign, Priti Patel, then Minister of State for Employment, said that by halving the impact of EU social and employment laws, Britain could create 60,000 new jobs. Yet should the UK government try to scrap the employment rights introduced following EU-wide legislation – a 20-day minimum annual leave allowance, unfair dismissal rights, and significant parental leave – the opposition sure to come from unions and millions of workers will keep the current laws very much where they are – alleviating business from the burden of none of it. Meanwhile, not only is much of the British public in favour of environmental laws that originated in Brussels and would vigorously oppose any attempts by the government to remove them, the UK remains subject to other global regulation, such as the Kyoto Protocol on reducing carbon emissions, which place burdens on the nation regardless of those devised by Europe.

The second likely cause of disappointment is that, while much of the regulation that now affects UK businesses has come from the EU, the UK authorities have frequently been far more demanding than Brussels, either by surpassing the minimum standards set by the red tape, or by enforcing them more strictly than the EU requires, in what is known as “gold-plating”. For instance, the 20-day minimum entitlement to annual leave set by the EU is gold-plated in the UK to ensure that public holidays are not taken from this stock, and therefore must be given in addition to rather than as a part of the 20 days. Likewise, when implementing EU regulations on the question of yet another famous anti- topic of conversation, Health and Safety, those relating to asbestos were “gold-plated” so as to require that contractors be licensed before they are authorised to remove the potentially fatal substance. It is hard to see a popular cause that would lead to the removal of the former or latter “gold-plating”.

And let’s not forget that the UK government is perfectly capable of placing burdens on UK businesses all by itself. One of the greatest (at least according to business, especially those small and medium sized), is the minimum wage, which has nothing to do with Brussels. In 2015, the UK government announced a 38% increase to take effect by 2020, a measure that will have a vast impact on wage costs. The UK government also harms business unintentionally. While the EU imposes rules on how long self-employed truck drivers can spend on the road, how many breaks they must take and how records are kept, the British government imposes high fuel duties and fails to invest sufficiently in national transport infrastructure, which is far more onerous for their business. The concept that Brussels red tape might act as a check and balance on the UK government appears rarely to have been contemplated.

A study by PWC earlier this year indicated that “the potential post-exit benefits of reducing regulatory costs are estimated to be relatively small in macroeconomic terms at around 0.3% of GDP in 2030”. Was it worth it? It is tempting to say “who knows?” As the British government tries to determine what the Brexit vote actually means, little is clear. However, what is clear is that Brussels red tape will continue to be a fact of life for British businesses who want access to the Single Market. Meanwhile, those that do not will still find themselves subject to the global forces and other organisations that manage relationships between nations by way of rules. But perhaps the British public should not feel so bad about this. After all, it is easy to forget that the burden red tape does impose on businesses is for the benefit of consumers: the same people who own, staff and run businesses. In fact, everyone. Yet, even such positive considerations will not be enough to stop some shedding an occasional tear: who will they be able to blame in future if not Brussels …?

This article should not be taken as definitive legal advice on any of the subjects covered.  If you do require legal advice in relation to any of the above, please contact Simon Walton on 020 7955 1455 or any member of the Rosenblatt Dispute Resolution Department.

The pitfalls of selling your name – lessons for entrepreneurs

23/09/2016 | Tom Spiller
The decision in the High Court case of Karen Millen v (1) Karen Millen Fashions, (2) Mosaic Fashions US EWHC 2104 (Ch) should come as a warning to entrepreneurs doing business in England and Wales.

The decision in the High Court case of Karen Millen v (1) Karen Millen Fashions, (2) Mosaic Fashions US [2016] EWHC 2104 (Ch) should come as a warning to entrepreneurs doing business in England and Wales. When selling a business with which you have a close personal association and bears your name, problems may arise at a later date if you also sell the intellectual property rights associated to that name. This is of particular importance to the business community of the UK, for many British entrepreneurs build and sell more than one business during their career.


Karen Denise Millen, together with her then-partner Kevin Stanford, began a fashion business in Kent in 1983 which traded under the name of “Karen Millen” (her middle name “Denise” apparently not being considered fashionable enough). Gaining momentum and prestige by trading in Harrods and Fenwick department stores in West London, after it had grown to include several lines of clothing and retail outlets, the business was transferred from a partnership into a limited company named “Karen Millen Limited”. Shortly thereafter, the structure was changed again with the incorporation of a holding company. The business spread internationally, to include a presence in Hong Kong, Japan and Canada. It expanded by using franchising, although when sufficient capital was available the business opened its own retail outlets in new jurisdictions.

By 2004, “Karen Millen” was global in scale and the name was a well-recognised and highly valuable brand. In June of that year, both Ms Millen and Mr Stanford sold their interest in the business to an Icelandic consortium (which included Kaupthing HF and was led by Baugur Group). As at the date of the sale, the business included directly owned stores in nine countries and a presence via franchises in a further 15.

The contract by which the business was sold contained provisions restricting the use of the brand’s intellectual property, the most important being the trademark “Karen Millen”.

Ms Millen said that one of the major reasons behind her decision to sell her business was to spend time with her family and, in particular, her youngest child. However, in 2011, Ms Millen gave an interview in which she said that she wished to make a return to the fashion industry under the name “Karen”.

This change of heart led to litigation in the UK on the basis that, when Ms Millen sold her business, she had also sold the rights to trade in the EU using the trademarks “Karen” or “Karen Millen”. Those proceedings were eventually settled in February 2015.  However, there was no settlement in respect of the position worldwide. In particular, the parties did not address the question of whether Ms Millen could go back into the fashion industry using her own Christian name in America or China. This residual dispute formed the subject matter of further proceedings issued in the High Court of England and Wales by Ms Millen in October 2014, somewhat strangely prior to settlement of the first.

The Decision

Resolution of the second set of proceedings required judicial interpretation of the terms of the contract by which Ms Millen had sold her former business. Ms Millen sought a series of “declarations” (a less commonly known remedy in which the court states the extent or existence of a party’s rights, makes a finding of facts or states a principle of law) to the effect that she was entitled to use that name.

However, finding against Ms Millen, the Court decided that when she sold her share in her former business in 2004, Ms Millen had also sold the right to use the above-referenced trademarks in America and China.

Practical Lessons

What entrepreneurs trading in today’s brand-obsessed, commercial world should learn from Ms Millen’s litigation is that you can only sell your name once. So if you decide to sell your business for personal reasons, it is wise to build in protections that will allow you to trade using your own name at a later date.

Ms Millen’s desire to realise value from her business while simultaneously freeing up more time to spend with her family was reasonable at the time, but she may now wish she had spent longer considering the future options for her business activities before selling the rights to trade using her own name. This is an increasingly common problem, from which even the Special One, Jose Mourinho, suffers, although in his case it is only his image rights that his former employer still owns; trademarks relating to his name and signature have expired so he is now free to sell them again.

Should you find yourself considering your intellectual property rights in the context of a sale of your business, or perhaps becoming embroiled in an intellectual property dispute, get in touch. Whatever your name is, or perhaps was, Rosenblatt will be able to help. In the meantime, perhaps Ms Millen’s middle name Denise will finally have the opportunity to shine as the next major name in fashion.

This article should not be taken as definitive legal advice on any of the subjects covered.  If you do require legal advice in relation to any of the above, please contact Simon Walton on 020 7955 1455 or any member of the Rosenblatt Dispute Resolution Department.

The Lord Chancellor – Should the United Kingdom’s most senior legal position be held by a lawyer?

19/09/2016 | Nick Leigh
Prior to 2012, the role of Lord Chancellor – traditionally the keeper of the sanctity of the rule of law – had been held by qualified lawyers for more than 400 years, albeit not always those prac

Prior to 2012, the role of Lord Chancellor – traditionally the keeper of the sanctity of the rule of law – had been held by qualified lawyers for more than 400 years, albeit not always those practicing. Since then, three non-lawyers in a row have sat on the metaphoric woolsack. All inherited the post as part of the Ministry of Justice, with which it was combined in 2007. Chris Grayling was the first non-lawyer. His career prior to Westminster included stints as a television executive and management consultant. He was followed, in 2015, by the famous spoiler Michael Gove, also a media beast before hearing his call to public service. Mr Gove was replaced by Liz Truss who, before becoming an MP in 2010, was a commercial manager for Shell, an executive for Cable & Wireless, a management accountant and a deputy director of the think tank Reform. So, from 2012 to the present day: three Lord Chancellors and not a copy of Beale, Bishop and Furmston on Contract Law amongst them.

Does it matter? Or is owning a boxset of Suits enough to be the defender of the rule of law in the Twenty-First Century? After all, churchmen rather than lawyers held the office of Lord Chancellor for its first five hundred years. So, perhaps the role requires only a familiarity with authority generally rather than specifically a legal authority. Indeed, when New Labour carried out its reforms in 2005, it hammered the point home by removing the requirement of a legal background. Section 2(1) of the Constitutional Reform Act 2005 states that “A person may not be recommended for appointment as Lord Chancellor unless he appears to the Prime Minister to be qualified by experience.”

As cabinet ministers as well as MPs prior to assuming the role, Mr Grayling, Mr Gove and Ms Truss  all met this new qualification. But does someone without medical training or experience make an effective Health Secretary (Jeremy Hunt anyone?), or a journalist an effective Education Secretary (step forward again Mr Gove)? Or is the reverse true: that decades of involvement in a profession makes you partisan for its cause at the cost of much needed reform.

It was no accident that the clergy inhabited the role of Lord Chancellor for so long. All organised religions have at their basis a code of some sort, which must be observed in varying degrees of strictness if those subject to it are not to fall foul of penalties as draconian as eternal damnation. As the interpreters of that code, the role of a churchman was therefore not so far removed from that of a lawyer. Furthermore, as a member of the Royal Court, the Lord Chancellor advised the monarch in matters temporal as well spiritual – those of the realm as well as the religion. And, simply yet crucially, clergy were amongst the few medieval souls capable of reading and writing.

The Royal Court became Parliament, the Lord Chancellor the presiding officer of the House of Lords. The holder of this office eventually formed part of the legislature – as a peer, he (it was always “he” until the appointment of Ms Truss a mere one thousand years after the role was formed) could participate in debates regarding prospective new law and the votes for or against their passing; he sat as a member of the judiciary in the House of Lords, enabling him to preside over cases that had reached the highest appeal court in the land; and, as part of the Privy Council and Cabinet, the Lord Chancellor was a member of the nation’s executive, whose responsibilities included the administration of the courts and the appointment of judges, tasks of exceptional importance – it is the law and its observance that ensures states do not descend into tyranny and chaos. It was therefore no accident that once the mantle was passed from the clergy to the lawyers in the Sixteenth Century, the last holder of the office prior to Mr Grayling not to be a lawyer was the Earl of Shaftesbury, whose tenure ended in 1673.

The purpose of the Constitutional Reform Act 2005 was, in part, to prevent the concentration of the exercise of all key powers of state – the executive, legislative and judicial – in the hands of one person. Yet the holder of the office of Lord Chancellor retains a number of important legal functions. These include bearing an explicit duty to respect the rule of law, to defend the independence of and oversee the judiciary, to ensure an efficient and effective court system, to ensure the provision of legal aid, to regulate the legal profession as a whole and to take responsibility for the process of civil, family and administrative law. Lord Falconer, who guided the Constitutional Reform Act 2005 through Parliament, said that the reforms were intended to “… retain and entrench [the Lord Chancellor’s] role as being a defender of the rule of law and the justice system.” So it remains an office of huge importance in which – one would assume – legal experience would be of great help.

What then of our three latest incumbents?

It may have been true that Mr Grayling’s department was subject to heavy austerity cuts, but even so, he took a deliberately hard line approach, implementing measures that damaged access to justice, and therefore the rule of law. He slashed funding for legal aid for judicial review and the victims of domestic abuse, introduced mandatory charges to be paid by those convicted of crimes that incentivised guilty pleas, and significantly increased the costs of issuing claims. Other policies included banning books sent into prisons (on the basis that they were used as packages to smuggle in contraband goods). The Ministry of Justice under Mr Grayling was also embroiled in an ugly scheme to advise the prison service of Saudi Arabia on how to run its organisation – an organisation which executes dozens of prisoners each year.

The criticism Mr Grayling received during his tenure included a letter signed by 90 QCs savaging his “unjust” legal aid cuts, while Lord Pannick described his time as defender of the rule of law as “notable only for his attempts to restrict judicial reviews and human rights, his failure to protect the judiciary against criticism from his colleagues and the reduction of legal aid to a bare minimum”. But the question is, would a lawyer have done better?

Before answering this, it should be noted that Mr Grayling’s non-lawyer successor, Mr Gove, reversed much of what he did, scrapping the mandatory charges on conviction, the ban on books and the Saudi deal. However, Mr Gove’s time as Lord Chancellor was limited to little more than a year. Meanwhile, Ms Truss has been in the job for only two months, and yet her tenure has already got off to a rocky start: a minister in her new department, Edward Faulks, a QC, resigned following her appointment, saying, “I have nothing against Ms Truss personally, but … is she going to be able to stand up, come the moment, to the prime minister, for the rule of law and for the judiciary . . . without fear of damaging her career? It is a big ask.”

Which brings us to the crux of the matter. Once upon a time, the Lord Chancellor was a lawyer: independent minded, sharp as a tack and highly knowledgeable about their subject. Now, the role may be filled by just another machine politician. Is it unfair to say this? Let’s consider the evidence.

It is hard to conclude objectively that Mr Grayling defended the rule of law and the justice system during his tenure, whereas lawyers work their entire careers complying with – and thereby honouring – the very same rule of law. It is hard to believe that he considered the best interests of those who found themselves within the civil and criminal justice systems, whereas professional lawyers serve their clients with a passion and dedication. And it is hard to believe that the well-being of the judiciary was of great importance to him, whereas lawyers know how damaging it is to the conduct of justice if judges are so overloaded with work that cases can take many months and even years to be heard or for appeals to be considered. Instead, Mr Grayling behaved as an austerity apparatchik, and as Mr Faulks said of Ms Truss, did nothing to stand up against David Cameron and George Osborne on behalf of those who needed him to. It was clear he had no feel for what was truly important about the legal system and the rule of law, which would simply not have been the case with a lawyer, and which is why the job had stayed in lawyers’ hands for centuries.

Perhaps Mr Gove might have done better, given more time, and perhaps Ms Truss will exceed Mr Faulks’ expectations. But so far, the evidence is against it. For those who suspect the latest holders of the thousand-year title of Lord Chancellor believe the Clapham omnibus is a nightclub in South London, the rule of law might have to look out for itself for now.

If you require any legal advice please contact Simon Walton on 020 7955 1455.

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