Posted by & filed under News.

Karen Lawson, Senior Lecturer in Law writes:

Under employment law in the UK those who undertake work are divided into 3 categories – ‘employee’; ‘worker’ and ‘self-employed’.  In recent high profile cases involving Uber and Pimlico Plumbers some individuals labelled by the companies as ‘self –employed’ have been found by the courts to in fact be ‘workers’.

What’s it all about?

The definition of a ‘worker’ is set out in the Employment Rights Act 1996 section 230 as an individual who works either under a contract of employment or “any other contract….whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.

Therefore, the ‘worker’ is neither self-employed in the sense that they are running their own business, but nor are they a fully-fledged employee. Instead the worker is an “intermediate class[1] . As the Employment Appeal Tribunal explained in the case of Byrne Brothers (Formwork) Ltd v Baird [2002], the effect of having the ‘worker’ definition is to “lower the pass-mark, so that cases which failed to reach the mark necessary to qualify for protection as employees might nevertheless do so as workers”.[2]

This ‘intermediate class’ of worker status has a lower level of employment protection than employees. ‘Workers’ do not enjoy the protection of full employment rights that employees have, such as the right not to be unfairly dismissed or to receive a redundancy payment or to take maternity or paternity leave. However, workers are entitled to more employment protection than the genuinely self-employed. In particular workers are entitled to benefit from the right to be paid the National Minimum Wage and rights under the Working Time Regulations such as the right to paid holidays.

However, if an individual signs an agreement stating that they are ‘self-employed’ how can the courts then decide that the individual is in fact a ‘worker’?

The answer lies in the Supreme Court’s decision in Autoclenz Ltd v Belcher [2011] ICR 1157, which held that in employment law the definition of a sham must take into account the “relative bargaining power of the parties”.[3]  This meant that the courts can look behind the label attached to the relationship in the written contract  and instead examine whether the written documentation reflects the “true agreement[4]  between the parties. If the written documents do not reflect reality, then the courts can ignore them as being a ‘sham’ and determine the employment status of the individual themselves.

Worker vs Self employed

In order to establish whether an individual is an employee; a worker or self-employed the courts have set out some legal tests against which an individual’s working relationship is judged.

The starting point is the legal tests for an employee. In order for an individual to be an employee, 3 factors must be present in the contractual relationship between the individual and the company; personal service, control and mutuality of obligation (known as the ‘irreducible minimum’ concept). ‘Personal service’ means that the individual has to undertake the work personally for the company and not be able to send a substitute. ‘Control’ means the extent of the control the company has over when, where and how the individual carries out their work. ‘Mutuality of obligation’ concerns the obligation on the individual to make themselves available for work and the obligation on the company to provide work for them.

An individual who is self-employed will not have the above 3 factors present in the contractual relationship. Therefore, they have no obligation to undertake the work personally and can send someone else (a ‘substitute’) to perform the work for them. They can decide where and when they work and are not subject to any form of ‘control’ by the company, for example they do not have set hours and will not be subject to the company’s disciplinary procedure.  There will also be no mutuality of obligation in the relationship, so the self-employed can turn down work and the company has no obligation to offer them any work.

An individual who is a worker still has to show that the 3 irreducible minimum factors are present in the contractual relationship with the company, but at a lower level for than for an individual who is claiming to be an employee.

Therefore, there can be a fine line between an individual who is an employee and a worker and between an individual who is an worker and self-employed.

Pimlico Plumbers

In February 2017, the Court of Appeal in Pimlico Plumbers Ltd v Smith [2017] EWCA Civ 51 upheld the decisions of the two lower courts and found that Mr Smith was a ‘worker’ and not, as Pimlico had claimed, self-employed.

In particular, the Court of Appeal noted that:

  • There was a requirement for Mr Smith to provide ‘personal service’. He had no right to send a substitute to do his work for him.
  • Mr Smith was subject restrictive covenants which prevented him from working as a plumber in the Greater London area for 3 months after he had stopped working for Pimlico. This demonstrated a level of ‘control’ over Mr Smith which was incompatible with ‘self-employed’ status.
  • Although part of the contractual documentation stated that Mr Smith was not obliged to accept work from Pimlico, another document stated that he had to work a minimum of 40 hours per week. This demonstrated a level of mutuality of obligation and control.

 

Uber

In November 2017, the Employment Appeal Tribunal dismissed Uber’s appeal against a finding that its taxi drivers were ‘workers’ and not ‘self-employed’ in  Uber B.V and others v Mr Y Aslam UK EAT/0056/17.

In particular, the Employment Appeal Tribunal held that:

  • In determining the nature of the relationship between the parties, the employment tribunal had to have regard to the “reality of the obligations and the reality of the situation[5].
  • Applying that approach to the facts, the employment tribunal were entitled to reject how the relationship between Uber and its drivers had been characterised in the written documentation.[6]
  • The employment tribunal were entitled to conclude that the drivers were not operating their own businesses as they could not grow that business because they could not negotiate the terms with passengers and had to accept the work on Uber’s terms.[7]
  • The drivers were subject to various controls by Uber and Uber would also indemnify the drivers for bad debts[8], which is another factor which is not consistent with self-employed status.
  • The requirement that drivers would lose their account with Uber if they did not accept at least 80% of trips demonstrates a level of control and also a level of mutuality of obligation. [9]
  • The drivers could not provide a substitute and had to undertake the driving work for Uber personally.[10]

 

Pimlico’s appeal against the Court of Appeal decision will be heard by the Supreme Court in February 2018. Uber did try to ‘leapfrog’ their appeal so that it would also be heard by the Supreme Court, but that was unsuccessful. Therefore, Uber’s appeal will be heard by the Court of Appeal sometime in 2018.

A costly mistake

The implications for employers of getting the classification of employment status wrong was illustrated in December 2017  by the European Court of Justice’s decision in King v Sash Window Workshop Ltd  C-214/16.   The ECJ held that individuals who have been wrongly classified  as self-employed, when they are actually found by the courts to be ‘workers’ may be able to claim unpaid accrued holiday pay potentially going back 20 years to when the statutory right to receive paid holidays was first introduced[11].

If the Court of Appeal decides when the Sash case returns to the UK courts that workers who have been wrongly classified as self-employed can claim unpaid holiday going back many years, then that will be something for both employers and ‘workers’ to get worked up about!


[1] Byrne Brothers (Formwork) Ltd v Baird & others [2002] ICR 667 at para 17

[2] Byrne Brothers (Formwork) Ltd v Baird & others [2002] ICR 667 at para 17

[3] Autoclenz Ltd v Belcher [2011] ICR 1157 at para 35

[4] Autoclenz Ltd v Belcher [2011] ICR 1157 at para 35

[5] Uber v Aslam UK EAT/0056/17 at para 99

[6] Uber v Aslam UK EAT/0056/17 at para 107

[7] Uber v Aslam UK EAT/0056/17 at para 107

[8] Uber v Aslam UK EAT/0056/17 at para 109

[9] Uber v Aslam UK EAT/0056/17 at para 89

[10] Uber v Aslam UK EAT/0056/17 at para 71

[11]  IDS Editorial ,‘Sash, bang, wallop for employers on holiday pay’, IDS Brief 2018, issue 1084 at page 2

Posted by & filed under Featured Lecturer, Links, News.

Dr Simon Sneddon, Senior Lecturer in Law writes:

2017 has been quite some year for the Law bloggers, and as the year draws to a close, I thought I would try to summarise what we’ve been up to, in case you missed anything.

January started with Karen hailing the 2016 Uber case in the Employment Tribunal and discussing the gig economy more widely. Kate was next up with a key lesson for co-habitees who have not made wills, and then Simon talked dirty about space junk.

February started with reflections – Melanie on LGBTQ+ staff and students in Business Schools, and Kirstie on her (second) life as a student. Simon then celebrated the 220th anniversary of the attempted invasion of Britain, and the importance of luck.

March saw a discussion by Simon about Authentic assessment, scaffolding and deep learning in Law, and one by Nick about whether Victimising the Homeless Should be a Hate Crime. Simon was back later in the month with a discussion of non-native species in the UK, and the legality of guerrilla gardening, and Melanie rounded the month off with the launch of the HEFCE-funded project “New Spaces: Safeguarding Students from Violence and Hate.”

Karen was the sole April contributor and took a look at Employment Tribunal Fees, and whether their existence was essentially a barrier to justice.

Simon took the lead in May, and looked back at the lives of Giovanni Falcone and Paolo Borsellini, as well as others who were assassinated by the mafia in Italy in the 1990s. May also saw the Student Teaching and Representation Awards, which had a heavy representation from the Law team (with 16 per cent of the shortlist, and 2 per cent of the academic staff).

In June, Simon again tried to encourage voting in the General Election (though he asks not to be blamed for the result), and later urged the new government, in light of the terror attacks in Manchester, to “stop playing to the lowest common denominator over human rights, and to focus instead on properly staffing the police and security services.” Kirstie too addressed the human rights and terrorism issue in June, focusing particularly on Article 8 and the deportation of “those suspected” of terrorism. June also saw a report on the Law Employability day by Kate, and an invitation to get Sticky by Nick.

Karen was back in July, with some very pertinent advice in graduation week about getting in to work – wearing a onesie to an interview is not the right approach! Melanie looked back on a couple of recent conference attendances and pulled out the key equality themes from both. The month also saw a post by one of our graduating students, Teodor, on the secularity or otherwise of capital punishment. The month ended with Melanie talking about the Building Bridges conference she had been to in Crete, and the future implications it would have for her work

Kate revisited the Employment Tribunal fees issue in August, and Simon had a run of posts, looking at fatal shootings in the UK and USA, the (legal) sale of rhino horn by a South African rhino farmer, and the origins of Bank Holidays.

Ebenezer started us off in September looking at the Kenyan Presidential vote, which he called a “powder keg of uncertainty” and Kate followed this with a post about proposals to make a will electronically. Simon rounded off the month by reflecting on the changes in induction to HE from the early 1990s to 2017.

October was bookended by discussions on the Catalan referendum. Nick began the month with a look at the right to self-determination, and Simon ended it by contrasting Scottish and Catalan moves for independence. In the middle, James questioned whether “Child Law” as a category should really count as law, Simon looked back at the drowning of nearly 2000 sailors in 1707 (and the subsequent Longitude Act 1714), and Edrina and Julius from the UoN Student Law Society looked back at an SRA Event in Manchester celebrating the successes of BME lawyers.

Stick with us, we’re nearly there!

November was about trying to make things better. The month started with a 2-part post by Jade on the Official Secrets Act 1989, in which she questioned whether the time was ripe for reform. Foster (LLB Yr 3) was next up with a look back at his first year, and advice to new students on how to avoid making the mistakes he had made. Kate then looked at whether the rules of workplace dress-codes needed improving, and Jade ended the month with a discussion about the meaning of National Security and Judicial Deference in the UK.

In December, Kirstie discussed some of the issues raised by Clive Stafford-Smith in his High Sherriff’s lecture on Capital Punishment, Torture and Justice.

What will 2018 bring? Bookmark the site, and we will keep you posted.

In the meantime, have a very Happy Christmas and New Year.

 

 

Thanks to:

Ebenezer, Edrina, Jade, James, Julius, Karen, Kate, Kirstie, Melanie, Nick, Simon and Teodor

 

 

Posted by & filed under Featured Lecturer.

Kate Exall, Senior Lecturer in Law writes:

I have been continuing to use Discussion Boards in my teaching over the last few weeks.  I ask students to engage with a range of online material and then to post either their own thoughts on the issue eg harassment or to pick points out of a decided case.  I then integrate their responses into our next face to face meeting to stimulate discussion on how the law is working in practice.

Over the last few weeks, I have noticed that the participation in Discussion Boards has declined quite dramatically.   From a healthy beginning when 12 out of 26 students contributed to the first substantive Discussion Board, it fell to 8 for the next one, then in the last one where they were asked to post to 2 Discussion Boards only 7 contributed to one and 3 to the other.  I wanted to find informally from the students what might be causing this.

I spoke to them in a face to face session where most of those who participated were there as well as a number who had not. They indentified 2 main problems, firstly the public nature of the activity and secondly the time scales involved.

Their main problem was that they had to post their own ideas in their name.  This meant that shy students didn’t want to commit their thoughts to writing and others didn’t really know what they thought about an issue so didn’t want to post an entry.  To resolve this, and to see if this is the issue, I have enabled anonymous posts for the next discussion board activity.

Another reason put forward was that the deadline was too tight.  I ask for the entries to be made by 1pm the day before the workshop. This is to allow me time to convert the entries into the activity so have told them that I will accept late entries and add these into the activity before the workshop.

It will be interesting to see if these small changes will increase participation.  If not, then it may be something more fundamental which may be revealed when the results of the formal survey are analysed.

 

Posted by & filed under Uncategorized.

Kirstie Best, Subject Leader for Law writes:

This year’s lecture was given by Clive Stafford Smith, who founded Reprieve (www.reprieve.org.uk), an organisation providing free legal and investigative support for people subjected to the death penalty and extra-legal counter-terrorism policies and practices. Much of his work has been in relation to appealing against sentences of execution given to defendants in the USA. It is in this context that he spoke.

It’s a common misconception amongst students studying human rights that the right to life is absolute and can never be justifiably restricted. In fact, human rights law recognises various limitations to the right to life including in relation to State use of the death penalty. The International Covenant on Civil and Political Rights (part of the International Bill of Rights, the foundation for recognition and protection of human rights post- World War II) recognises the right to life in Article 6(1) and does so in positive, unambiguous terms – “Every human being has the inherent right to life. This right shall be protected by law.” However, much of the remainder of this Article is given to recognising the legitimacy of use of the death penalty, albeit within proscribed limits (such as Article 6(4) which requires a right to seek pardon or commutation).

Article 6(1) additionally states that “No one shall be arbitrarily deprived of his life”. The effect of this, and the positive clause about the right being protected by law, is to require of States compliance with the rule of law. This is the principle by which State actions should occur within a legal framework that ensures non-arbitrariness. In other words, that actions taken in relation to an individual find their basis in law. This is the ‘procedural’ side of the rule of law, whereby as long as a law exists allowing the State to do ‘something’, that ‘something’ will be in line with the rule of law and therefore legitimate. This clearly allows States a great deal of discretion as the legal framework through which arbitrariness is avoided is that provided by national law.

Stafford Smith’s lecture clearly illustrated the limitations of this approach to the rule of law by drawing on the example of one of his clients, Krishna Maharaj. Maharaj has been held on death row in Florida for over twenty years, convicted of a double murder of a business associate and his son, and remains there despite Stafford Smith appealing against the conviction. This could be taken to mean that Maharaj’s conviction is sound and beyond reasonable doubt yet Stafford Smith remains convinced of his innocence. Why?

In his lecture, he set out a number of failures within the prosecution case which high-light the limitations of a procedural view as to what will satisfy the rule of law requirement from Article 6(1). For example, the first judge who heard the case against Maharaj was arrested for bribery (in relation to another case). His replacement met with the prosecutors against Maharaj and agreed, in a pre-trial ex parte hearing, to seek the death sentence despite the lack of a full, open hearing of the case in court (a breach of the substantive provision in Article 14(1) requiring a  public hearing). Stafford Smith also alleges that the prosecution case was based on misrepresentations (or, to quote, ‘lies’), including the prosecution claiming that Maharaj had no alibi when a witness who could testify that Maharaj was 40 miles away at the time of the murders wasn’t in fact called to testify.

Here, the trial was occurring within a legal framework, so Article 6(1) was in this sense satisfied, but clearly this procedural view as to the rule of law has limitations which may mean that the right is undermined despite being protected by law.

This is also demonstrated by Stafford Smith’s wider criticisms of the legal system in such cases. Article 6 ICCPR doesn’t specifically require that a defendant has legal representation, but under Article 14(3)(b) a fair trial requires ‘adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing’. Similarly Article 14(3)(d) refers to the requirement of legal assistance whether of the defendant’s choosing or assigned to him if required in the interests of justice. This is positive in that States must make provision for this, and also sensible in that a defendant should not be unrepresented where the consequence of conviction can be death or life-long imprisonment.

However, Stafford Smith identified that defendants often want quick, cheap representation and are often not in a position to identify where they are being badly advised by their legal representative so will tend to follow advice, such as not to testify or put in an alibi, even where doing so undermines their defence. He also pointed out that while corporate law is highly resourced, criminal law tends to be poorly resourced. The result of this is that inexperienced or inept lawyers end up representing defendants in cases where conviction can lead to the death penalty.

What all this points to is that the rule of law has to have both procedural and substantive elements. So, it isn’t enough to have a legal framework to protect rights, that law must also have certain qualities to ensure that it achieves the purpose of both the rule of law and human rights. That is, the avoidance of arbitrariness and inequality. To summarise Lord Bingham, the law must embody qualities of accessibility, clarity, and predictability; exercise of discretion should be limited; law should apply to all equally; public officials must exercise powers in good faith and fairly; there must be adequate protection or human rights; trials should be fair in the sense of ‘the procedural dice [not being] loaded in favour of one side or the other’; and a State should comply with its international legal obligations.[i] What Stafford Smith’s account of the criminal justice system in the USA, particularly that relating to capital offences, points to is that in important respects it fails to satisfy the rule of law in relation to equality, good faith and fairness, and that overall it inadequately gives effect to the USA’s international legal obligations.

 

 

 

 


[i] Tom Bingham, The Rule of Law (Penguin Books, 2011).

Posted by & filed under News, Student Voice.

Dr Simon Sneddon, Senior Lecturer in Law writes:

This is the first update from our ILT-funded project which is taking a look at the ways in which the Student Voice is captured in different delivery locations.

The project team is split across two Faculties at the University – the Faculty of Business and Law, and the Faculty of Education and Health, and between us we will be looking a the different mechanisms for capturing the student voice (CSV), and assessing their equivalence. In addition, we are taking an objective look at the new Unitu (LINK) online course Rep system, which is being trialled by the Students Union this year.

Our plan for the project is to develop and produce a “Best Practice” guide for CSV which will disseminated widely.

Healey, Flint & Harrington (2014) make the very valid point that if students feel that their feedback is just being engaged with at a surface level, the process feels disempowering, and students feel less inclined to engage with feedback measures.

Our project will ensure that the correct mechanisms are in place so that students can be reassured that their voices are not only heard, but listened to.

In addition, the third strand of the project will unpick the issues raised in the various fora, to determine whether students’ issues are primarily location-based, or programme-based. This comparison across locations and programmes will help the response to the students’ points be more effective.

At this point in the term, there is little specific progress that has been made.

For the LLB programme, the first Staff-Student Liaison Committee took place yesterday, but the equivalent session for our EWO Partners (DEI College, Thessaloniki, and Amity Global Business School, Singapore) have not yet taken place.

For the LLM Programme, a representative from the Students Union came to one of the face to face sessions to outline what Unitu was, and how it worked. This was augmented by a video attached to the NILE site, which enabled the Distance Learning students to find out about the system. At the start, there were set-up issues with the Unitu system, for both the LLM and MA SEN, and several students were not able to log in to the system. This is not unexpected with new software-based systems, and ironing-out these sorts of creases is one of the reasons for trialling a system before a full roll-out. No issues have been raised by the Course Representative using Unitu, and discussions between the Programme Leader and Course Representative showed that this was because the students had not raised any issues at this time.

The project is starting to take shape, and the next update will be able to start to draw threads form the meetings which will by then have taken place.

 

Simon Sneddon (Law/FBL)

Mary Doveston (SEN/FEH)

Kate Exall (Law/FBL)

Rachel Fitzgerald (Business, FBL)

Prithvi Perepa (SEN/FEH)

 

Posted by & filed under Featured Lecturer, News.

Jade Brailsford, Graduate Tutor – Faculty of Business and Law writes:

We often hear the term ‘national security’ being used as if to magically override the fundamental right to freedom of expression. Particularly in the case of Security and Intelligence Service (SIS) disclosures.

Indeed, because the balance generally leans towards the protection of national security it leaves one believing that the argument for the preservation of ‘national security’ is undefeatable.

In my view, the use of the phrase ‘national security’ by the State should be subject to strict judicial oversight facilitated by a clear definition of the national security.

However, do the courts have any choice but to err on the side of caution? Arguably, where there is no definition of national security the courts have little choice but to accept the State’s inference that disclosure affects national security and therefore put a break on freedom of expression.

How is national security defined?

There is little doubt that there are threats to national security which supports the argument that limiting SIS disclosures protects the interests of the country and uphold public safety.

Naturally, protection of national security can lead to a legitimate interference with freedom of expression. However, the lack of a legal definition for national security can give the State too much power, leaving them able to apply the ‘national security’ label to any interest they may have.

After political sagas such as the Iraq conflict it can be argued that there needs to be more transparency of State decisions and an allowance for true Government accountability. Yet, Phillips argues that as threats of terrorism make the world more “menacing” the argument for transparency has gone too far and keeping “secrets” is a necessity of protecting national security.[1] I am a veteran, I do not disagree with this sentiment, however the importance of national security makes a definition even more imperative.

So where can we start?

Originally known as the royal prerogative ‘defence of the realm’, the term national security has over time expanded to cover an array of areas.[2] It is accepted that national security includes espionage and military intelligence, as well as modern threats such as terrorism and cyber-attacks.[3] MI5 state that “national security” refers to the security and well-being of the UK as a whole.

Although the European Court of Human Rights (ECtHR) has given States a margin of appreciation where national security is concerned they have also recognised the importance of disclosures concerning political matters that inform public debate.[4] Despite the conflict of interest between protecting national security and upholding freedom of expression, Lord Hoffman suggests that whether something is in the interests of national security is a matter of judgment and policy.[5]

Therefore, technically speaking, the question of whether something is in the interests of national security is for the executive only, as the most well-informed body, and not a question of law.

However, despite the margin of appreciation, interference with freedom of expression based on national security must be proportionate. This requirement for proportionality with regards to definitions of national security has been construed to mean ‘necessary’ in that any restriction is no more than what is required to achieve the protection of that aim.[6]

Despite guidance provided by the ECtHR the true meaning of necessary, when interpreted alongside national security, can be unclear. To remedy this, the [non-binding] Johannesburg Principles have been developed. Their aim is to clarify the scope of ‘necessary’ and legitimate restrictions on freedom of expression, and in doing so, they provide the standards required of States where national security is concerned.

Principle 2(a) defines national security as “protect[ing] a country’s existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force.

This definition could be taken into account by UK courts. Meaning that the courts would not have to leave it to the State to decide whether any disclosure concerned national security, if that disclosure fitted within the parameters of Principle 2(a).

What is the likely outcome of judicial review in national security cases?

Judicial review in cases concerning national security is significant when taking into account Lord Hope’s judgment in the well-known case, Shayler.[7] Lord Hope stated that one of the primary reasons the restrictive Official Secrets Act 1989, s1 was compatible with the European Convention on Human Rights(ECHR), Article 10(1) – Freedom of Expression was that, where permission to make a SIS disclosure is denied, the individual would be able to bring a judicial review action.

The accuracy of this statement causes concern. As the judiciary have repeatedly stated that national security is “a matter for executive discretion”[8] it is unclear whether judicial review would provide an effective remedy for SIS whistleblowers or whether it is a process that has an inevitable and traditional conclusion that will go in the executive’s favour.[9] Conversely, it has been argued that courts are now less impressed than they once were by “the mantra of national security”.[10]

The reviewability of national security has followed the courts’ traditional approach that there was no judicial review of an exercise the royal prerogative.

The GCHQ case[11] established that judicial review is available in cases that involve the royal prerogative, as per Lord Scarman, reviewability depends on the subject matter rather than source of the power. Lord Roskill[12] suggested that certain categories of prerogative are non-justiciable and therefore beyond the scope of review, reasoning that with certain areas judicial intervention is inappropriate.

Lord Roskill’s categories included defence of the realm and national security; it was on this basis that the appeal failed in GCHQ.[13] Therefore, perhaps Lord Hope was being optimistic at best with his suggestion that judicial review could succeed.

Furthermore, it has more recently been noted that national security remains close to forbidden territory for the courts.[14] It appears that the Government can merely state that there is an interest of national security and the courts will be reluctant to question this position.[15]

Yet, GCHQ[16] established that the mere assertion of national security is not enough, there must be evidence that national security influenced the decision.[17] The HL also discussed what would be ‘necessary’ to protect the interests of national security, concluding that it is a matter on which the Government must have the last word.[18] Lord Scarman favoured a cautious approach to judicial deference; taking heed of Lord Delvin’s warning that “[m]en can exaggerate the extent of their interests and so can the Crown”.[19] Lord Scarman stated that there should be no “abdication” of judicial function where national security is concerned.[20]

The approach towards national security has developed since GCHQ,[21] however the extent to which it has evolved for the improvement of SIS rights is questionable. Post GCHQ[22] there has been a very limited number of cases in which the judiciary appear to protect individual rights over claims of national security.[23]

However, one such case is Belmarsh,[24] “a powerful statement…[that] the executive is subject to the rule of law”.[25] Belmarsh[26] concerned the discriminative detention of foreign nationals suspected of acts of terrorism and the House of Lords(HL) declared that the legislation in question was incompatible with rights contained within the Human Rights Act 1998(HRA), in so far as it was disproportionate.

Yet, Tomkins[27] argues that academics[28] have overstated the importance of Belmarsh[29] by applying the ruling to national security cases generally. Indeed, the earlier case, Rehman[30] demonstrates the traditional deferential approach yet it is more often[31] referred to by national courts. This suggests that Belmarsh[32] is actually an exception to be applied with caution.

Other cases[33] that concern the prerogative relating to national security suggest that courts will review it but will usually decide the case in favour of the State. It remains clear that judicial review is theoretically possible but unclear whether a review would be successful. Although legal outcomes can be uncertain, where human rights, State secrecy and transparency are concerned, it would be better to have a clearer position.

 

Conclusion

The lack of a clear definition of national security leaves scope for the Government to expand the grounds on which they restrict disclosure. Creating a clear legal definition would benefit not only whistleblowers but also those who wish to enforce secrecy legislation by making the likelihood of conviction clearer.

Conversely, there will always be arguments for the need for State secrecy, and a strong argument against having a statutory definition is that the very concept of national security could be considered “protean”.[34] A statutory definition would not allow the State enough flexibility and is therefore unlikely.

The lack of consistency with regards to the judicial review of national security cases makes the reasoning in Shayler[35] largely hypothetical. There is a distinct lack of case-law showing whether judicial review would ever be successful, in spite of the ECtHR[36] criticising the UK courts’ reluctance to provide an effective remedy in the form of judicial review in national security cases. Although academic commentary suggests that the HRA has improved judicial review generally.[37]

Nevertheless, arguably, even if Lord Hope were correct in suggesting the judicial review of national security cases could be successful, it is unlikely to provide more Government accountability.


[1] John Phillips, ‘Secrecy and Transparency An Interview with Samuel Weber’ (2011) Vol 28 Theory Cult Soc 164.

[2] Hitoshi Nasu, ‘State secrets law and national security’ (2015) ICLQ 365, 366.

[3] ibid 371.

[4] Wingrove v UK (1997) 24 EHRR 1 [29]. Giniewski v France (2007) 45 EHRR 23 [600].

[5] Secretary of State for the Home Department v Rehman [2003] 1 AC 153 (Lord Hoffman) [192].

[6] Lingens v Austria (1986) 8 EHRR 407 [418].

[7] R v Shayler [2003] 1 AC 247 (Lord Hope) [283].

[8] Liversidge v Anderson [1942] AC 206 (Viscount Maugham) [220].

[9] Aileen Kavanagh, Judging the judges under the Human Rights Act: deference, disillusionment and the “war on terror”’ (2009) Apr PL 287, 298-304.

[10] Simon Brown, ‘Public interest immunity’ (1994) Win PL 579, 590.

[11] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (Lord Scarman) [407].

[12] ibid (Lord Roskill) [418].

[13] GCHQ (n 11).

[14] R (on the application of Harrow Community Support Unit) v Secretary of State for Defence [2012] EWHC 1921 (Justice Haddon-Cave) [24].

[15] ibid.

[16] GCHQ (n 11) (Lord Roskill) [420].

[17] Keith Ewing, ‘Prerogative, Judicial Review, National Security’ (1985) 44 CLJ 1, 1-3.

[18] GCHQ (n 11) (Lord Diplock) [413]

[19] Chandler v DPP [1964] AC 763 (Lord Devlin) [811].

[20] GCHQ (n 11) (Lord Scarman) [405-407].

[21] GCHQ (n 11).

[22] ibid.

[23] Adam Tomkins, ‘National security and the role of the court: a changed landscape?’ [2010] LQR 543

[24] A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68 (Belmarsh).

[25] Mary Arden, ‘Human Rights in the Age of Terrorism’ (2005) 121 LQR 604, 622.

[26] Belmarsh (n 24).

[27] Tomkins (n 23).

[28] Such as Arden in Arden (n 25) 622.

[29] Belmarsh (n 24).

[30] Rehman (n 5).

[31] For example in, R (on the application of Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 2091.  R (on the application of Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2014] UKSC 60.

[32] Belmarsh (n 24).

[33] R (Al Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289 [312].

[34] Rehman (n 5) (Lord Woolf MR) [1252].

[35] Shayler (n 7).

[36] Chahal v UK (1996) 23 EHRR 413 and Tinnelly & Sons Ltd v UK (1998) 27 EHRR 249.

[37] Rabinder Singh, ‘The Human Rights Act and the courts: a practitioner’s perspective’ (2010) 6 EHRLR 589, 589-590.

Posted by & filed under Featured Lecturer, News.

Kate Exall, Senior Lecturer in Law writes:

You may have read about Nicola Thorp, a receptionist, who was sent home for refusing to wear high heels last year.  This sparked considerable debate about dress codes in the workplace, particularly for female employees with the dress code for the company she worked for requiring (amongst other things) the following from female employees:

Heels of at least 2 – 4 inches with no flat shoes permitted, regularly maintained hair colour, specified make up to be worn at all times and regularly reapplied, nail varnish from a specific colour palette and tights of no more than 15/20 denier to be worn at all times[1]

Nicola Thorpe began an online petition to make it unlawful to require women to wear high heels at work[2].  It achieved over 150,000 signatures which triggered a response from the government.   Their response was that “Employers are entitled to set dress codes for their workforce but the law is clear that these dress codes must be reasonable. That includes any differences between the nature of rules for male and female employees, otherwise the company may be breaking the law. Employers should not be discriminating against women in what they require them to wear.”  However all that they would commit to do was to work to ensure that women were not being discriminated against in the workplace. [3]

This did not satisfy the Petitions Committee who were disappointed with both the quality of the reply and the time the government took to respond[4]. They asked the Parliamentary Committee for Women and Equalities to produce a more detailed response which they did in January 2017.[5] Their report called upon the government to review this area of the law with a possible amendment and tougher penalties for employers.[6]

They noted that there were medical issues involved in eg wearing high heels commenting “Dress codes which require women to wear high heels for extended periods of time are damaging to their health and wellbeing in both the short and the long term.”[7]  They also raised wide issues about discrimination saying “We are also concerned about the extent to which gender-specific dress codes reinforce rigid gender stereotypes which might make workers, especially some LGBT+ workers, feel uncomfortable”.[8]

They felt that discriminatory dress codes remained common place in the workplace and that many employees do not feel able to challenge them.[9]  They said that employers needed to have a greater awareness of the issues, “It is clear to us that, in many cases, employers who impose dress codes on their workers simply are not asking themselves what legal obligations they might have to protect their employees’ health and wellbeing and to avoid discrimination against their employees, because they are not recognising the potential harm which their dress codes might cause.”[10]  They felt that whilst the Equality Act was clear in principle, the practical application was not so easy.[11]

The government responded in April[12] saying that they felt that the law was adequate but that some employers lacked awareness of the law or even flout it and that some employees were reluctant to take action about it.[13]  They said that they would be issuing guidance to employers on workplace dress codes by this summer.  They will consider whether to include the more controversial points on dress codes which have been identified eg hair colour, nail varnish etc.[14]

However, they have not produced the draft guidance and there is no informatin on when this might be expected.  It may be proving harder to draw up than anticipated as it will be difficult to know where to draw the line as to the level of detail.  Can they, and indeed should they, consider the specifics of a dress code or is that going too far?

There are no problems with requiring employees to  look smart and professional with clean and well maintained clothes but there needs to be a distinction between that and dress codes which appear to objectify women.  The Women and Equalities Committee report gives examples including flight attendants, receptionists and sales staff.  One woman reported that “her employer had encouraged her and her colleagues to wear shorter skirts and unbutton their blouses more at Christmas time, when a higher proportion of male shoppers was anticipated”.[15]

Now that Employment Tribunal fees have been abolished (for now anyway) dress codes that are perceived to be discriminatory on gender or religious grounds might be the subject of a legal challenge.  Employers need therefore to consider the reasons for their dress codes and whether they can be rewritten in a more gender neutral way.  Indeed the company at the centre of this issue, Portico, promptly did so and produced a more gender neutral dress code which has no reference to size of heels or to a specific colour palette.   Perhaps this can be a useful model for others to adopt.  We will await the government guidance on this point.


[1]  High Heels and workplace dress codes House of Commons Petitions Committee and Women and Equalities Committee January 2017 p39 and 40

[2] https://petition.parliament.uk/archived/petitions/129823

[3] https://petition.parliament.uk/archived/petitions/129823

 [4]  High Heels and workplace dress codes House of Commons Petitions Committee and Women and Equalities Committee January 2017 para 10.

[5]  High Heels and workplace dress codes House of Commons Petitions Committee and Women and Equalities Committee January 2017 para 10.

[6]  Para 95

[7] Para 23

[8] Para 40

[9] Para 64

[10] Para 72

[11] Para 55

[12] High heels and workplace dress codes: Government Response to the First Joint Report of the Petitions Committee and the Women and Equalities Committee of Session 2016–17

[13] Para 19 govt response

[14] Para 22

[15] Para 34 High Heels and workplace dress codes House of Commons Petitions Committee and Women and Equalities Committee January 2017

 

Posted by & filed under Student Voice.

Foster Mukhwapa, Yr 3 LLB Student writes:

During the past 2 years, several people have selflessly and tirelessly worked to bring the best out of me. Being on the Freshfields Stephen Lawrence Scholarship scheme equipped me with knowledge that, if shared, might be helpful to year-one students considering a career in business law or other City careers.

So, what would I do if I was back in year one at the University of Northampton?

  1. Get the grades: I would not listen to those who say first year grades don’t count. They do! (Tip: Bag in the best grades you can from the start – it is all you can show when applying for internships).
  2. Networking: I would connect with diverse individuals (classmates and professionals). I made friends with people from diverse backgrounds – I am still learning from them. (Tip: Don’t just surround yourself with people that are more like you. Develop connections not just a list of contacts. LinkedIn helps).
  3. Be professional: This could be the boring part – but I would be careful what I post on social media. (Tip: Make sure what you include on your LinkedIn profile is agreeable with your past employers – some tasks that you did on your placement cannot be disclosed outside the firm. Don’t post pictures of the cool offices that you are interning in – this sin is hard to forgive).
  4. Apply for internships: I would plan and start early on this because applications take a good chunk of time. It’s like writing an EU Law essay. (Tip: Start early because most firms recruit on rolling basis. A rushed application is as good as not doing any application. Get a trusted friend or family to proof read).
  5. Manage my time: I thought I could be superman and do everything despite Sophie Lomas, my personal tutor, suggesting that I drop a bit of my workload. So, I struggled in my second year. (Tip: Prioritise, delegate and have some time to put the feet up to reset the brain. Use the advice from personal tutors and mentors).
  6. Read business news: I would realise that I would be several steps behind my peers if I don’t get into the habit of reading current business articles. (Tip: The University provides us free copies of Financial Times twice a week. Grab a copy in Cottesbrook – It’s part of getting value for the hefty £9,000/year! Subscribe to free legal and business online articles e.g. Lawyer 2B etc. As you read, think of how different stakeholder (such as clients, regulators and competitors) might be affected by issues under discussion).
  7. Attend events: I would register with Aspiring Solicitors (aspiringsolicitors.co.uk) rather than make separate applications to attend events at top law firms. Once registered, you just click the events you want and await selection. But – I would treat the registration process the same way I would treat an application to a law firm. (Tip: Recruiters seem to have a weak spot – name dropping in applications! Jot down names of people you meet at events and link what they said to some parts of the application. Treat everyone at the event, including fellow students, as if they hold the key to your future job).
  8. Grab copies of must-have books: I am lucky that I was given copies of these invaluable books which are also available on Amazon: Know the City 2015/16 by Christopher Stoakes; Commercial Law Handbook by Jake Schogger; and Investment Banking Handbook by Jake Schogger.

Posted by & filed under News.

Jade Brailsford, Graduate Tutor - Faculty of Business and Law writes:

My previous post (LINK) introduced the complexity of the UK’s Official Secret Acts (OSA’s) and the strict rules that apply to Security and Intelligence Service (SIS) personnel. Consequently, this post proposes reforms that would better balance the need to protect national security with the rights of SIS personnel to freedom of expression.

First, what is freedom of expression?

The European Convention Human Rights (ECHR), Article 10(1) states that

“[e]veryone has the right to freedom of expression…[the] freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”.

It is a fundamental right and the “essential foundation” of democratic societies.[1] There are many complexities to the right, including the legitimate ways that State’s may stifle freedom of expression under ECHR, Article 10(2). The legal rules that govern such limitations cannot be covered here but authors such as Stone[2] cover this in detail. There is also a plethora of European Court of Human Rights (ECtHR) case-law[3] that can further understanding.

Here, I use the term ‘freedom of expression’ in the context of SIS public interest whistleblowing.

Despite the famous judgment of Shayler,[4] where the protection of national security outweighed the right to freedom of expression, there are difficulties reconciling the OSA 1989, s1 with freedom of expression rights of SIS personnel who seek to make public interest disclosures.

I suggest that the damaging disclosure ‘harm test’ found in the OSA 1989, s1(3) should be extended to past and present SIS personnel. Furthermore, I propose that there is a requirement for a public interest defence, similar to that found in Canada’s Security of Information Act(SOIA) 2001. Such changes would, in my view make s1 more compliant with the UK’s human rights obligations.

Harm Test Extension – Protect SIS personnel to!   

The Johannesburg Principles[5] aim to clarify the scope of legitimate restrictions on freedom of expression, and provide the standards required of States where national security is concerned. Although they have no legal basis they have been widely accepted[6] and are considered aspirational guidelines.[7]

Principle 15 states that there is a requirement that the disclosure causes or is likely to cause harm and that the public interest in disclosure does not outweigh the harm that will be caused. Article 19 has stated that a disclosure should not be restricted unless the defendant intended to cause harm to national security and that there is a clear nexus between the disclosure and the likelihood of harm.

However, the s1 offence is absolute and does not take into account the discloser’s intent, leaving no adequate protection for whistleblowers with genuine concerns. Therefore this is disquieting from a human rights perspective.

Arguably, because the meaning of ‘national security’ is fluid the absolute offence is justified due to the confidential nature of SIS work, meaning disclosures must be regarded as damaging.[8] However, Hattersley stated that the “definition of “harm”” is so wide and weak that it is difficult to imagine any revelation, which is followed by a prosecution, not resulting in a conviction”.[9]

Nevertheless, it is a stretch to argue that ‘all’ disclosures made by SIS personnel will be damaging since common-law[10] demonstrates that secret information can lose its confidentiality. However, most often courts find that any SIS disclosure affects the confidence and trust that security workers have in each other, making an absolute ban lawful.[11] Arguably, ensuring trust and confidence within the SIS allows personnel to effectively fulfil their roles and protect national security.

My suggestion would be that s1(1) be amended to read “if without lawful authority he makes a damaging disclosure’ of any…”

Although this would not resolve the issue of what is considered damaging, it would narrow the scope of the offence greatly and give SIS whistleblowers greater protection. Ideally any reform would also seek to clarify the meaning of the word ‘damaging’ to amend the use of language such as “within a class,” perhaps by expressly stating what is covered.

The Public Interest Defence – Better Protection for SIS Whistleblowers!

The harm test alone would not sufficiently protect SIS personnel who make public interest disclosures, particularly where the disclosure can still be labelled as harmful or likely to be harmful to national security. Thus, the inclusion of a public interest defence would uphold Johannesburg Principle, 15(2) which states that a person should not be punished “where the public interest in knowing the information outweighs the harm from disclosure”.

A beneficial inspiration for a SIS public interest defence comes from Canada’s SOIA 2001.

SOIA 2001, ss13-14 cover ‘possible’ and ‘actual operational information’, and ‘persons permanently bound to secrecy’. The public interest defence provides that “[n]o person is guilty of an offence…if the person establishes that he or she acted in the public interest”.[12]

The Act explains the meaning of public interest objectively. Drawing on factors that have been established by the ECtHR[13] to allow the judge to decide whether the public interest in disclosure outweighs the public interest in non-disclosure. S15(4)(a-g) lists these factors, which include:

  • “Whether the person had reasonable grounds to believe that the disclosure would be in the public interest”
  • The “extent of harm…created by the disclosure”
  • What the actual public interest is the disclosure intends to serve

Furthermore, “safety or interests of the State” has its meaning clearly defined in SOIA 2001, s3(1). This includes things such as “endangers the lives, health or safety of Canadians” and “impairs or threatens the capabilities of the Government of Canada in relation to security and intelligence”.

This is a more detailed provision than the requirement of damaging disclosure found in the OSA 1989, s1(3) which lacks clarity.

However, the public interest defence in the SOIA 2001 has caused some confusion which demonstrates the complexity of this legal area. Nasu states that the defence is not available if the disclosure concerns national security, referencing ss16 and 17, on foreign entities and terrorist groups.[14] However, this statement is, in my humble opinion not wholly accurate. The defence is not overtly restricted in ss16 and 17 but fails to appear in any other section than s15(1). Thus, it is unclear why Nasu has only identified foreign entity and terrorist disclosures as those restricted.

Despite Nasu’s interpretation, when looking at the Canadian case O’Neill[15] it becomes apparent that it is likely SOIA 2001, s4(1) that is a combination of the OSA’s 1911 and 1989, s1. S4(1) makes it an offence to communicate, possess and retain certain categories of Government information without authorisation. It provides that Crown Servants and intelligence personnel past and present are covered. As with the OSA 1989, s1 there is no provision for a public interest defence within s4.

The O’Neill[16] judgment suggests that the availability of a public interest defence for SIS disclosures is “dubious and speculative”. Ratushny conceded that the Canadian Parliament had included the public interest defence in SOIA 2001, s15(1) but that the restrictions placed upon it “are indicative…of Parliament’s deliberate intention”.

Yet, my interpretation is that it is only SIS personnel that are prevented from making SIS disclosures. National security disclosures outside of the SIS umbrella are not always restricted and the defence could apply.

Thus, if the Canadian template for a public interest defence were copied by the UK it would require further modification. The availability of a public interest defence would bring UK law into line with international standards.

Canadian inspiration…Is it really that simple?

Note, however, that Canadian courts have a less deferential approach when interpreting legislation and Ratushny J in O’Neill[17] found no issue with criticising the State and SOIA 2001, s4. The deferential nature of UK courts can be attributed to the “domestic legal culture”;[18]  namely the lack of a coherent written constitution and the principle of separation of powers which means that UK judges should not substitute their own judgment for that of the executive.[19] Whereas, Canadian courts apply a deferential approach to administrative law but a more “rigorous hard edged”[20] approached to the protection of constitutional rights.

This is made possible by their written document constitution,[21] coupled with the protection of constitutional rights within the Canadian Charter of Rights and Freedoms 1982.[22] Therefore, despite Commonwealth court decisions providing persuasive precedent,[23] in order for the public interest defence to succeed in the UK it would have to be statutory and explicit in stating who and what disclosures it covered, leaving no margin for deference due to ambiguity.

Such a precise public interest defence would improve the OSA 1989, s1 from a human rights perspective, although perhaps undesirable for the State.

Conclusion

There is no doubt that the OSA 1989, s1 does not meet aspirational international standards regarding State transparency and disclosures made in the public interest. This, as discussed, could be mediated by the extension of the harm test and inclusion of an objective public interest defence as per the SOIA 2001.

The reforms proposed here would allow whistleblowers to bring State wrongdoing to the public’s attention without the fear of wrongful conviction where the public interest defence was argued successfully. Thus, although the need for checks and balances would be upheld to protect national security, it would be in a less draconian manner.

 

 


[1] Handyside v UK (1979-80) 1 EHRR 737 [754].

[2] Richard Stone ‘Civil Liberties and Human Rights’ (10th edn, OUP 2014) 296.

[3] For example, Reinboth v Finland (2013) 57 EHRR 34 and Fressoz v France (2001) 31 EHRR 2.

[4] R v Shayler [2003] 1 AC 247.

[5] Developed from UK and international laws by academic experts assembled by the organisation Article 19.

[6] Sandra Coliver, ‘Commentary to: The Johannesburg Principles on National Security, Freedom of Expression and Access to Information’ (1998) 20(1) HRQ 12, 15.

[7] Hitoshi Nasu, ‘State secrets law and national security’ (2015) 64(2) ICLQ 365.

[8] Shayler (n 4) (Lord Hope) [283].

[9] HC Deb 21 December 1988, vol 144, col 475.

[10] Attorney General v Blake (2001) 1 AC 268 (Lord Nicholls) [287].

[11] ibid.

[12] SOIA 2001 (Canada), s15(1).

[13] In cases such as; Guja v Moldova (2011) 53 EHRR 16; Heinsch v Germany (2014) 58 EHRR 31.

[14] Nasu (n 7) 387.

[15] O’Neill v Canada (Attorney General) [2006] CanLII 35004; 82 OR (3d) 241

[16] ibid (Ratushny J) [56].

[17] O’Neill (n 15).

[18] Richard Clayton, ‘Principles of Judicial Deference’ (2006) 11(2) 109, 110.

[19] Eric Barendt, ‘Separation of powers and constitutional government’ (1995) Win PL 599.

[20] ibid 119.

[21] Constitution Act 1982 (Canada).

[22] This Act is equivalent to the UK Human Rights Act 1998. Clayton (n 19) 119-120.

[23] Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.

Posted by & filed under Featured Lecturer, News.

Kate Exall, Senior Lecturer in Law writes:

This project was borne out of curiosity to find out why students didn’t engage with Discussion Boards as we would want them to do.  It is one of the tools in our armour for implementing Active Blended Learning but my experience is that students don’t make use of them.

I decided to focus on one final year module where the students would be given Discussion Board activities as part of their online work which would then be used in the face to face workshops.  I tried it with the same module last year but had limited success.  I am trying again this year, having revised the format, to find out what works and what doesn’t.  I will be surveying the students later in the term to find out what barriers there are to participation.

In our first session I showed the students how to use the Discussion Board and how to reply to threads and to other people’s comments.   I started with an Icebreaker activity as recommended in the literature and was really pleased to see that 17 students out of 26 engaged with this.  They were simply asked to tell us 2 things about themselves.  Unsurprisingly football featured quite heavily in their posts.  This is a really positive start but it was simple and unthreatening.

The next Discussion Board activity was 2 weeks later and they were given a week to do the reading and make their contributions to 2 Discussion Boards.   The students were asked to suggest 2 things, based on their reading, to help decrease the incidents of pregnancy discrimination in the workplace.   12 students engaged with this and many of the answers were of good quality and depth.   However, in response to the request that they should comment on another person’s post, only 1 student did this which is disappointing.

The second Discussion Board activity asked them to give their own opinion on harassment in the workplace and whether they agreed with a particular comment.  Only 7 students posted on this, although again the comments were detailed, supported by law and identifying the issues.   I don’t know whether it was because it was the second Discussion Board, whether it was the topic or the fact that I asked their opinion which was the issue.

I picked up on both sets of comments in the face to face workshop the following week.  For the pregnancy one I picked out a range of comments and asked them to discuss them in small groups before pulling it altogether.   It became clear which students had done the work as some groups had lots to discuss and others finished relatively quickly.  I didn’t really have time to do much on the harassment Discussion Board so we had a general discussion about the comments and the issues they raised.

They have another 2 Discussion Board activities to engage with this week for discussion in our next face to face workshop.  Again, one is a factual discussion and the other requires their opinion on a topical subject.   We shall see what the uptake is.