The appellant employer (R) appealed against a decision ( EWHC 2420 (QB), (2009) 1 CMLR 17) that a length of service criterion as part of the redundancy selection process under a collective agreement between R and the respondent trade union was not unlawful under the Employment Equality (Age) Regulations 2006. There were two collective redundancy agreements in place between R and the union within R’s Derby group of factories. Both contained provisions for length of service as a selection criterion within the redundancy matrix. An employee received one point per year of continuous service. R brought a part 8 claim against the union for a determination by the court as to whether the inclusion of length of service within the selection matrix for redundancy was in breach of the Employment Equality (Age) Regulations 2006. The judge held that R would have a defence to an age discrimination claim under regulation 3 on the basis that the collective redundancy agreements pursued a legitimate business aim. In any event, giving points for long service in the redundancy selection matrix conferred on the employee concerned a ‘benefit’ within the exception provided for in regulation 32. R submitted that: (1) it was a proper exercise of the court’s discretion to grant declaratory relief in the unusual circumstances of the present case where a party brought proceedings before the courts relating to matters involving statutory construction which had an impact on a collective agreement; (2) the judge had focused on the scope and definition of the legitimate aim, and had not considered the question of proportionality either properly or at all; the mere fact that the service-related criterion was enshrined within a collective agreement was not determinative; gaining points for length of service in a redundancy situation was not a ‘benefit’ within regulation 32. Held: (1) The court should entertain the appeal. It was being asked to construe a statutory instrument deriving from directive 2000/78. The interpretation of material emanating from parliament was both a matter of public importance, and one of the court’s proper functions. Although the proceedings were private as opposed to public law proceedings, and although there was no immediate lis between the parties, the point was not academic, and if not resolved by the court would lead to a dispute between R and the union, who did not agree on it, Kay v Commissioner of Police of the Metropolis (2008) UKHL 69, (2008) 1 WLR 2723 considered. The point was one of some importance, and was likely to affect a large number of people both employed by R and beyond. It would be unduly purist for the court to decline to adjudicate on a point which had been brought before it by means of a procedure which had been deemed by the parties and by the court below to be appropriate. If necessary, the case could be regarded as exceptional, Gawler v Raettig  EWCA Civ 1560 considered. (2) The length of service criterion potentially involved indirect discrimination on grounds of age. For the purposes of the directive and regulations a length of service criterion could be a legitimate aim of redundancy selection terms, especially where it was part of a collective agreement. The judge did not in terms deal with proportionality but, viewed objectively, the inclusion of the length of service criterion was a proportionate means of achieving a legitimate aim. It was not necessary to reach a view on the interpretation of regulation 32. However, the court’s provisional view was that an award of points based on length of service constituted the award of a ‘benefit’ for the purposes of regulation 32. Appeal dismissed. Rolls-Royce plc v Unite (the union): CA (Civ Div) (Lady Justice Arden, Lords Justice Wall, Aikens): 14 May 2009 Civil procedure – Age discrimination – Collective agreements – Employee benefits John Bowers QC, Simon Cheetham (instructed by Eversheds) for the appellants; Peter Edwards (instructed by Rowley Ashworth) for the respondents.
Solicitors have never been in a better position to apply for judicial office, the Law Society has said in response to research suggesting that many still perceive the judiciary as ‘a career for others’. A study sponsored by the Judicial Appointments Commission (JAC) says that solicitors are much less likely than barristers to see becoming a judge as part of their career (see  Gazette, 4 June, 1). Paul Marsh, Law Society president, said Chancery Lane has worked hard to increase the number of solicitor applicants to the judiciary. It was disappointed that there still appears to be an underlying perception of inherent prejudice. ‘Solicitors have never been in a better position to apply. We want the number of applicants to rise and we encourage any solicitor considering judicial appointment to make the next step and apply,’ he said. He said that the Society is keen to work even more closely with the Ministry of Justice and JAC to ensure greater diversity in the judiciary, reduce barriers to appointment and increase the profession’s confidence in the system.
The lord chief justice has called on lawyers to take the initiative in shaping their future and not wait for events to shape it for them. Lord Judge said he would be ‘delighted’ if barristers, solicitors and legal executives ‘would together and separately address the structure of the legal profession as the public interest in the administration of justice will require it to be in, shall we say, five years’ time. Maybe even five years is too long’. He told the Institute of Legal Executives’ annual president’s luncheon last week: ‘What I am driving at is the need, first, for the issue to be examined as a whole rather than in isolated compartments, and, second, for the process to be undertaken not as a matter of reaction to events but as a matter of planned construction before the intervention of events. ‘What is needed is foresight… and, perhaps, too, imagination about the world of economic stress and recession and where technological change of extraordinary magnitude will be taking us, and how we should respond to the consequent and inevitable challenges and changes.’ Diane Burleigh, the institute’s chief executive, described the words as ‘spot on’. ‘The public interest requires from lawyers the kind of forward thinking that anticipates new types of legal services delivered in innovative, affordable ways. The public interest demands a bringing together of best business practice with the integrity and respect for the rule of law that is the hallmark of our legal profession.’
Obiter thanks London firm Howard Kennedy and their super-efficient PR Giselle Daverat for organising a recent five-a-side footie match with the Gazette – from which this magazine’s team was ungracious enough to emerge victorious. Any other firms brave enough to take on the mighty Gazette/Law Society team, contact email@example.com. Rumours that we arrange for firms that beat us to be intervened in are malicious. Honest.
The appellant (H) appealed against a decision refusing her permission to apply for judicial review of the decision of the first respondent magistrates’ court to make a forfeiture order under section 298 of the Proceeds of Crime Act 2002 in relation to a sum of £5,000 seized by police from her home. On 31 January 2008 police officers arrested H at her house for alleged fraud. During their search of her house they found £5,000 in cash. She was questioned about the alleged fraud and released on police bail. She initially told the police that the cash belonged to a friend. She then admitted that was false and said it came from an insurance claim. At a hearing on 29 April 2008 the magistrates’ court made a forfeiture order in respect of the cash. H was not present at that hearing; her case was that she did not know about it because in February 2008, because of her own ill-health, she had moved in with her mother for a few months. She claimed that in February she had given her change of address to the police officer involved in the fraud investigation, and that she received notification of the hearing only in July 2008 when she returned to her house. In April the officer dealing with the forfeiture matter had written to her at her home address enclosing the forfeiture application; a copy was not sent to the solicitor acting for her in relation to the criminal investigation. H claimed that she did not receive a copy of the forfeiture order. In October 2008 she was told that she would not be charged with any offence. She appealed against the forfeiture order to the Crown Court, which held in May 2009 that by virtue of section 299(2) of the 2002 act it had no jurisdiction to hear the appeal out of time. H then unsuccessfully sought permission to apply for judicial review. Held: (1) Given that in interview H had given a lawful explanation for the presence of the cash and that she had a solicitor in relation to the fraud investigation, it seemed unlikely that if she had had notice of the forfeiture proceedings she would not have contested them. The police accepted that they had no evidence to challenge H’s evidence that she had had no notice. If there was any evidence that H had not moved out of her house or had received notice, it would probably have been found by the time of the instant hearing. She had produced evidence of her moving out of her home and in with her mother, and of her poor health at the time. On the evidence and in light of the overly prolonged history of the case, it was right to conclude that H had not had notice of the forfeiture proceedings and the order of 29 April 2008 would be quashed. If H was right in her denial of knowledge of the hearing then she had been the victim of a miscarriage of justice which the Court of Appeal would merely be compounding if it did not intervene; it was elementary that she had a right to be heard, R (on the application of Marsh) v Lincoln District Magistrates’ Court  EWHC 956 (Admin) and R v Bolton Magistrates Court Ex p Scally  1 QB 537 QBD applied (see paragraphs 12, 44, 51, 54, 60-62 of judgment). (2) It was a cause for concern that there was no safeguard for a person who did not know about a forfeiture hearing and only learnt about it too late to appeal to the Crown Court. The court invited the lord chief justice to consider an amendment to the Magistrates’ Courts (Detention and Forfeiture of Cash) Rules 2002 to permit a person to show that, notwithstanding ostensible service, the purported recipient had not in fact received notice. Pending any such amendment magistrates should be particularly prudent about continuing with an application for a forfeiture order in circumstances like the instant case in the absence of the person with a claim to the money. If, as in H’s case, criminal proceedings were still ongoing, it might be thought worthwhile to give notice of the hearing to the solicitors dealing with the criminal case, albeit that those solicitors had not been instructed in the civil proceedings for forfeiture (paragraphs 41, 55, 56). Appeal allowed. James Dixon for the appellant; no appearance or representation for the first respondent; Colin Baran for the second respondent. Appeals – Forfeiture – Notices of hearing – Proceeds of Crime Act R (on the application of Nashika Harrison) v (1) Birmingham Magistrates’ Court (2) Chief Constable of West Midlands: CA (Civ Div) (Lords Justices Pill, Hooper, Munby): 25 March 2011
Dark clouds fill the sky over the Ministry of Justice, with Ken Clarke getting rained on from a great height. And to a large extent, he fully deserves his soaking. Even appearing to distinguish between ‘date rape’ and ‘serious rape’ (he insists the quotes were taken out of context) is morally absurd and politically disastrous. Nobody can honestly believe that the justice secretary thinks of rape as anything but abominable. But his comments on a radio interview this morning were crass and confused and were gleefully seized upon by Ed Miliband. The Labour leader had the haughty air of a luckless fisherman who finally lands a catch as he pinned David Cameron to the wall over PMQs. His call for the sacking of Clarke was a marvellous piece of political opportunism, but should Miliband be careful what he wishes for? In many ways, Clarke is currently one of Labour’s most potent weapons. Law and order to the Tories is like spinach to Popeye – their credibility with the core blue voter depends on being tough on crime, and certainly tough on the criminal. At times on this issue, Clarke appears to lean so far to the left he’s at risk of toppling over. His stance on halving punishments for offenders who enter a guilty plea is anathema to most Conservative supporters, giving off an air of liberalism that many simply cannot stomach. We should say at this point there is an argument to be made in favour of the sentencing reforms. Any attempt to prevent the indignity and horror of a rape victim having to give evidence in court is a worthy cause. But this is an emotive issue on a subject that repels the public to such an extent that all rational logic flies out of the window. It is strange that Miliband has taken so long to go for the Clarke jugular, having seen proposals for legal aid cuts and litigation reform pass almost without a murmur. This episode will leave Clarke teetering on the brink, sat nervously on the naughty step of 10 Downing Street while Cameron decides how to punish his veteran miscreant. If the prime minister decides to take out the justice secretary, Miliband may yet come to regret forcing out the man currently alienating so many of his own party’s natural supporters.
Government plans to scrap the Administrative Justice & Tribunals Council are ‘misguided’ and ‘perverse’, the body’s chair has told the Ministry of Justice. Responding to the consultation proposing the abolition of the AJTC, Richard Thomas said the independent body, which reviews the administrative justice system and challenges the impact of public policy, provides a valuable service at a ‘relatively minuscule cost’ to the public purse. But the MoJ paper says that it is ‘no longer an efficient or economic use of resources’ to have an independent advisory body carrying out functions in relation to administrative justice. It suggests that the AJTC’s function could be performed by a team of MoJ civil servants, saving an estimated £4.3m over three years. Thomas argues that civil servants within a government department could not provide the independent advice needed in an area where citizens are challenging government. He disputes the cost savings envisaged by the abolition, and questions the timing of the proposal, given heightened concern over both access to justice and the public perceptions of the justice system at a time of increasing economic and social uncertainty. Thomas said: ‘Abolition of the AJTC would see the disappearance of a well-established, well-respected and well-connected body which has a unique overview across the entire system of decision-making, complaints and appeals as it impacts the daily lives of ordinary citizens.’ He said its abolition is ‘perverse’ and ‘misguided’ and should not be pursued. The Public and Commercial Services Union said that the body plays an important role and is ‘more of an irritant and a hindrance to the current administration in its attempts to cut the public sector’. It added: ‘If the current government listened to [the council’s] deliberations it would save millions rather than having to pay out to disgruntled users and members of the public.’
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