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Archive for June, 2014

Price Of Law Books: It Doesn’t Have To Be This Way: LAG Does It Better

The money imperative of the English law business and its attendants is well-illustrated by the price of law books.

Some areas of law are crucially important for non-lawyers in their everyday lives. For example, employment law deserves to be intelligible to the averagely literate person, and employment law rules should be easily available to anyone with problems in the workplace.

The key source for employment law is Harvey on Industrial Relations and Employment Law, a five-volume looseleaf work, priced at £1179, or almost 200 hours of work at the national minimum wage.

Another key sourcebook is Sweet and Maxwell’s Encyclopedia of Employment Law, price £1397.

Recently, a book entitled “Employment Court Practice” has been published, price £275. This closely follows the style of the White Book and is a new court reference book for employment practitioners. The strange thing about this book is that there appears to be no employment court in the United Kingdom. This publication marks a further step in the move away from public accessibility to the employment tribunal and its domination by lawyers.

More specifically, in the area of disability discrimination, Doyle’s Disability Discrimination: Law and Practice, costs a mere £49, or nine hours at the national minimum wage.

Books on health and safety law are also out of the range for most workers, for example:

  • Sweet and Maxwell’s Encyclopedia of Environmental Health law and Practice at £1165.
  • Redgrave’s Health and Safety is cheaper, at £242.

Phone Hacking Trial Verdicts

After 8 months of evidence and 2 weeks of deliberations, the phone hacking trial verdicts have been delivered. Of the two predominant protagonists at trial, Rebekah Brooks was exonerated of conspiring to hack phones whilst Andy Coulson was convicted.

Following this announcement, David Cameron apologised for previously employing Coulson as his media chief, stating it had been “the wrong decision”.

Today (25th June 2014), the jury was discharged after failing to reach verdicts over outstanding charges of misconduct in a public office against Mr Coulson, and the ex-Royal Editor, Clive Goodman.

Mr Justice Saunders, who presided over the trial, condemned David Cameron for issuing the apology whilst the jury were still deliberating those charges. He stated:

“I consider that what has happened is unsatisfactory so far as justice and the rule of law are concerned.

“The press in court have been extremely responsible in their reporting of this case but when politicians regard it as open season, one cannot expect the press to remain silent.”

It is unfortunate that our prime minister is so ill-informed on the operation of our rule of law and human rights, specifically the right to a fair trial.


Cuba And Human Rights

Cuba and human rights

The Cuban Constitution of 1976 sets out all the rights recognised by the Universal Declaration of Human Rights and includes the following:

  • The obligation of the state to assure the economic and social well-being of the collective.
  • Positive social and economic rights: the right to work, right to social security, free health care and free education. The right to work is balanced by a duty to work.
  • Equality of rights and duties and the prohibition of discrimination.
  • Individual liberties, for example freedom of speech in keeping with the objectives of a socialist society.

Capitalist democracy is seen as a democracy for a majority of exploiters and as a form of oppression of the majority.

US and UK jurisprudence puts individual autonomy and property rights above group rights and collective economic and social well-being.

Socialist legality is concerned with collective well-being based on egalitarian values. It imposes limitations of individual liberties for the collective good. Political expression is restricted where it conflicts with state policy. The Cuban Communist party is the only lawful political party.

All efforts to organise internal dissent have been linked to US efforts to destabilise the government.


Electric Gate: Death Of Child: Recent Prosecution

Electric gate death: £60,000 fine

Health and Safety Executive v John Glen (Installation Services) Ltd and Tremorfa Ltd (2014) Cardiff Crown Court, June 12

Two companies have been fined after a five-year old child was crushed to death by an electric gate.

Significant points of the case

  • In July 2010 Karolina Golabek was playing near electric sliding gates outside flats near her home in Bridgend, South Wales.
  • The gates automatically closed after a car passed through. The child’s body was found in the gap between the gates and a post. She suffered fatal crushing injuries.
  • The closing force of the gate was 220 kg and did not meet European and British safety standards.
  • There were dangers with the gate structure which left space for people to get trapped. There were insufficient and incorrectly set safety features to detect a person in the area which would prevent the gate closing automatically.
  • John Glen (Installation Services) Ltd had fitted a new electric motor to the gate, which was put back into use despite the fact that there were obvious trapping points. The company had  also failed to properly test that the gate would close when it met an obstruction.
  • Tremorfa Ltd was contracted for the maintenance of the gate. It did not carry out vital safety checks including closing force measurements.

John Glen (Installation Services) Ltd was fined £60,000 plus £40,000 costs for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees, plus £40,000 costs.

Tremorfa Ltd was fined £50,000 plus £40,000 costs for the same offence.

A spokesperson for the HSE is reported to have commented after the case that badly installed and maintained gates were a threat to all pedestrians, but young children were particularly vulnerable because they were often completely unaware of the dangers. No-one should install or work on automated gates without knowing the relevant safety standards or without having the right equipment to check that the gate is safe after they have worked on it.


Female RAF officer: New Sex Discrimination Case

SEX DISCRIMINATION

Promotion

Case    Williams v Ministry of Defence (2014) Eq Opp Rev 248:23, Birmingham ET

Facts    W was a group captain in the RAF. She applied for promotion to the rank of Commander of the Defence Medical Group. She needed to be considered by the Tri Service Selection panel to compete against candidates from the Army and the Royal Navy. She was not selected as RAF preferred candidate. The ET found that this was direct and indirect sex discrimination.

Remedies        £204,079 loss of earnings

£105,585 loss of pension

£20,000 injury to feelings: top Vento band: updated to £22,000 for inflation: prolonged discrimination.

Total award £332,170 grossed up to £557,038

13 recommendations.


Health And Safety: Duty Of Care

HEALTH AND SAFETY

Duty of care

Case    Yates v National Trust [2014] PIQR P270, High Court

Facts    The National Trust contracted J to fell a tree. He arranged for a team of workers to carry out the work. He told Y to climb the tree and start the felling. Y was paid cash in hand, as he had been on a number of previous occasions. Y was cutting branches from the tree when he fell 50 feet and was seriously injured. He had no public liability insurance. He brought proceedings in negligence against the National Trust. The basis of the claim was that the Trust had engaged J but had not taken reasonable care to ensure that he and his work methods were competent and safe, or that the men whom he employed for the job were suitably qualified, trained and covered by insurance. The expert evidence was that Y’s fall was a result of his accidental cutting of his ropes, that a branch or anchor point had given way or that he had inadvertently detached himself from one anchor point before he was safely attached to another.

Decision          1. Y was not employed by the Trust.

2. The Occupiers Liability Act 1957 was not relevant because Y had not been inured due to the state of the premises.

3. The risks presented by the tree were the risks ordinarily incident to the calling of a tree surgeon who was climbing the tree with a chainsaw. It was apparent that the tree was diseased or dying.

4. The Trust did not owe Y a duty of care n relation to the choice of J as an independent contractor. Even if it had, it was reasonable for the Trust to instruct J.

5. There was no basis on which it could be said that the Trust owed a duty of care to Y to ensure that if an accident happened as a consequence of his employer’s fault, he would be able to enforce a claim against that employer.


Family Migration Rights

Earlier this month, the Migrants’ Rights Network (MRN) published a report into the family migration income threshold, Pricing UK workers out of a family life

The briefing paper, as explained in the Executive Summary;

“considers the impacts of the £18,600 minimum income requirement for non-EEA partner migration across the regions and countries of the UK. It uses Office of National Statistics (ONS) Annual Survey of Household Earnings data from 2013, broken down by parliamentary constituency of residence, to consider the potential impacts of this immigration requirement on workers across the UK.”

The MRN highlight the unequal effect of this blanket application across the UK. While, the income requirement is theoretically based on levels of self-sufficiency, in practice it places those who fall in love with a non-national in a postcode lottery based on their earnings.

The report notes that the disparity in pay across the country is wide, with 74 of Great Britain’s parliamentary constituencies’ average wage falling lower than the supposed £18,600 average. However, the further important issue is that in the same areas, the comparative cost of living was much lower as well. The reality of the situation is highlighted well by the story of Margaret:

“Margaret lives in the parliamentary constituency of Carmarthen West and South Pembrokeshire in South Wales. She has worked as a legal secretary for a private solicitors firm, earning £13,500 per annum, for the past 10 years. In December 2012, Margaret married Mohammed, a Tunisian national, having met him while he was living in the UK. However, in April 2013, Mohammed’s permission to live in the UK expired and he was required to return to Tunisia. Since then, although Margaret lives with her parents and has low outgoings, she has been unable to sponsor Mohammed’s return to the UK because of the income requirement. Margaret says “I’m doing a respectable job, but am now being told that my salary is not enough. It’s just so difficult to find work at £18,600 in my area. It doesn’t make sense because we could both live with my parents when he comes here, and Mohammed wants to work, and pay taxes, too. But if I leave and go to Tunisia, we will never be able to come back together. In the meantime, we are kept apart and are unable to start the family that we planned to have together.”

It is yet another example of the current trend of assigning financial hurdles to acquiring rights, this time the right to a family life.

The full report can be found at this link: http://www.migrantsrights.org.uk/files/publications/MRN_Family-Migration_Briefing-June_2014.pdf


Individual And Collective Human Rights

 

The clarity and simplicity of the European Convention on Human Rights is now submerged in a lawyer-created mesh of endless interpretation and sophisticated analysis.  Major human rights textbooks are large, expensive and highly technical. They are indistinguishable in style and layout from other technical law textbooks.


Individual Human Rights:Extreme Examples

Extreme examples of individual human rights

In James v United Kingdom (1986), a chartered surveyor, the Sixth Duke of Westminster, a chartered accountant and a banker were trustees of the will of the Second Duke of Westminster. The Westminster family owned 2000 houses in Belgravia.

The trustees complained that their right to public property was violated by the Leasehold Reform Act 1967 which gave the right to purchase freeholds to his tenants in Belgravia. 215 properties had been enfranchised. The trustees claimed £2.5 million compensation. The European Court of Human Rights ruled that the provisions of the 1967 Act were not in breach of the European Convention on Human Rights because the Act was within the limits that a national legislation has in implementing social policies.  The elimination of social injustice by leasehold reform legislation was a legitimate aim and could not be characterised as unreasonable. The taking of property in pursuance of a policy calculated to enhance social justice within the community could properly be described as being “in the public interest”.

The lawyers’ fees have not been disclosed.

Another example of extreme individualism as opposed to the protection and enforcement of collective rights is the case of two English motorists, Francis and O’Halloran, who complained to the European Court of Human Rights in 2007 that their right to silence, and not to incriminate themselves, had been violated. Francis had been photographed by a speed camera driving at 47 mph in a 30 zone. O’Halloran was photographed doing 69 mph in a 40 zone on the M4. English law requires car owners to disclose the identity of drivers whose vehicles have been photographed exceeding speed limits.

O’Halloran admitted being the driver but later revoked this confession on the grounds of the right to silence and not to incriminate himself. Francis refused to state whether he had been the driver. Both were convicted and complained to the European Court of Human Rights.

That court rejected the complaints. It ruled that the protection against self-incrimination was not absolute. Drivers of motor vehicles accept responsibilities and obligations. In the United Kingdom, these obligations include informing the authorities about the identity of the driver.

Francis and O’Halloran were supported by Liberty. That organisation later accepted that its commitment of resources in this case had been a serious mistake.

 


New Health And Safety Cases

HEALTH AND SAFETY

Duty of care

Case    Morcom v Biddick [2014] EWCA Civ 182

Facts    M, a professional handyman, an acquaintance of B, agreed to fit insulation to B’s loft hatch. B was aware that there was a risk of the hatch opening under M’s weight or because of the vibration of M’s drill. B agreed to ensure that the hatch stayed shut, using a pole to hold it in the locked position. The hatch came open while B went to answer the telephone and M fell through it, suffering serious injuries. He claimed compensation in negligence from B. At first instance, the judge found that the hatch had opened because the latch had worked itself loose. This would not have happened if B had not abandoned his post. In agreeing to hold the latch, B had assumed a duty to M and in moving away he had breached that duty. M was 2/3rds  contributorily negligent because he was working on the side of the hatch where he was most vulnerable to fall. M appealed to the Court of Appeal.

Decision          1. The appeal was dismissed.

2. B had taken the decision to involve himself and had therefore assumed responsibility with reasonably foreseeable consequences if he neglected his task.

HEALTH AND SAFETY

Personal protective equipment

Case    McPake v SRCL Ltd [2013] CSOH 157, Scottish Outer House

Statute reference         Personal Protective Equipment at Work Regulations 1992, reg.4

Facts    M was employed by S, a clinical waste management company, as a driver. In August 2011 he was decanting a loose waste bag from a nearly empty bin to a fuller bin when a needle stuck in his thigh. He claimed compensation for a breach of regulation 4 of the PPE Regulations. On his behalf it was argued that his protective trousers had not protected his thigh. For the employer it was argued that M should not have been handling loose waste, that the accident had been his own fault and that he had been acting beyond his instructions and training. M claimed that he had been trained to decant loose waste.

Decision          1. M’s actions had been carried out in the course of his employment. They had been for S’s benefit.

2. M had been exposed to a risk at work such that the 1992 Regulations were engaged.

3. There was an added risk in decanting loose waste bags as they had to be raised higher than mid-thigh level to be removed from the bins, which came up to chest height, to be placed in another bin.

4. The other means of protection relied upon by S were not equally or more effective in the absence of a clear system for dealing with nearly empty bins. S should have prohibited drivers from decanting and instructed them either to leave nearly empty bins or to uplift such bins.

5. If S had carried out a risk assessment in terms of Regulation 6 of the 1992 Regulations, it would have recognised that when waste bags were being decanted there was an additional risk of needle stick injuries which had not been prevented, controlled or avoided by the standard issue needle proof trousers and the instructions to carry bags by the neck and away from the body.

6. M had been trained to decant from nearly empty bins and in any event he was not prohibited from doing so. It was a reasonable thing for him to do and there was no fault on his part in doing so.

7. Compensation of £3500 was awarded for pain, suffering and loss of amenity.