FTSE100 leaders, BP, BT, Diageo, HSBC, Shell, Unilever, and Vodafone have pledged their support for The Bingham Centre for the Rule of Law’s new Business Network - which will be launched at an event on 18 January 2017. Lord Thomas of Cwmgiedd, The Lord Chief Justice, will welcome this new initiative and will encourage other leading global companies to get involved.

The Bingham Centre’s new Business Network, chaired by Graham Vinter, formerly of BG Group, will support the think tank’s global initiatives on rule of law whilst identifying and addressing specific challenges in the countries where they operate.  Projects under consideration include: proportionality of regulatory penalties and forms of redress; Brexit implications for trade and investment; tensions between national and international human rights standards; public decision making – best practice and capacity building; rule of law training and resources for boards and senior managers.

In a recent survey[1] conducted by the Economist Intelligence Unit for The Bingham Centre, the majority of executives surveyed had in the past five years experienced several failures of the rule of law in countries in which they had invested. Expropriation by governments of key assets, absence of protection for intellectual property rights, retrospective taxation and unenforceability of promises have all resulted in financial loss for multinational companies and damage to local economies.

The Bingham Centre is working to promote a clear understanding by policymakers, business leaders and legal practitioners of the importance of the rule of law in facilitating trade and laying the foundations for economic growth. The Centre focuses particularly on developing states and countries emerging from conflict and identifies ways in which the rule of law as a practical idea can be understood and implemented. The Bingham Centre is part of The British Institute of International & Comparative Law (BIICL).

Lord Thomas of Cwmgiedd, The Lord Chief Justice, said: “I welcome this new initiative from The Bingham Centre. The rule of law provides the foundation for peace, political stability, human dignity and economic sustainability. The business community needs the firm and consistent application of the rule of law, thus contributing to economic development.  Business can also play a key part in helping to build and sustain the rule of law in those countries where it has a presence, helping to make the world a safer and more equitable place.”

Graham Vinter, Chairman of the Business Network, said: “As multinational companies develop their supply chains and markets both at home and around the world, they are encountering a complex set of legal risks including contractual enforceability, regulatory predictability and bribery and corruption in all its forms, none of which can be addressed without the rule of law. We hope that other companies will support this important initiative, enabling us to have an even greater impact on the operation of cross-border trade and investment and the stability of commercial arrangements.”

[1] The Economic Intelligence Unit (EIU) surveyed 301 senior decision-makers at Forbes 2000 companies around the world. The survey was conducted in 2015.

(Source: BIICL)

Families, consumers and businesses all benefit from greater clarity on Brexit, the Bar Council has said today.

The Chairman of the Bar, Andrew Langdon QC said: “Today’s speech from the Prime Minister has provided some much needed clarity on the Government’s direction of travel over Brexit.

“The announcement that the UK will not seek membership of the single market underlines the importance of securing the greatest possible market access for the services sector, including the legal services sector and all those parts of the economy which depend on these services. It is also vital that our post-Brexit agreement provides certainty for families, consumers and the victims of crime.

“The UK legal services market is worth £25.7 billion, employs approximately 370,000 people and generates £3.3 billion of net export revenue. The excellence of the legal services sector and justice system undoubtedly make the UK very attractive to international business and investors. The UK is also the global hub for dispute resolution.

“Central to our success is the ability of barristers, solicitors and other legal professionals to provide legal services across national borders within the EU, and we support the Prime Minister’s welcome reassurance that the UK will remain open to international talent.

“Brexit must also deliver certainty for families and consumers. It is vital for UK citizens that judgments made in one country will be recognised and enforceable in another. There are millions of couples of different nationalities living in Member States, including those who are UK citizens, or who have children who are UK citizens. They need to know that the arrangements to safeguard their children’s welfare will be respected and, if necessary, enforced through effective reciprocal matrimonial and financial arrangements.

“Consumers and traders also need to be confident that the contractual terms on which they do business can be efficiently enforced by courts in their own country.”

(Source: Bar Council)

Set to present the UK’s plans for the EU exit today, British Prime Minister Theresa May has ruled out any “half-in, half-out” situation, stating that the UK’s 12 point plan aims to not leave the nation with a sort of “partial membership,” but to build a "new and equal partnership" with the EU.

Within the 12 point plan, the PM says the UK intends to trade “as freely as possible,” but the government has not yet revealed much detail about the upcoming negotiations with the EU. It has however stated that the Brexit package talks will commence by the end of March.

It has taken over six months for the UK government to formulate its coming actions, and for now all eyes are on the UK’s intentions in regards to the single market, the customs union, and its trade relationship with the EU in years to come.

In previous reports, EU leaders have indicated that they will not allow the UK to “cherry pick” benefits such as the single market, while letting go of obligations such as the free movement of people. The PM on the other hand has suggested a curb on migration is one of the country’s top priorities.

According to the BBC, Labour's Sir Keir Starmer said: "Preserving our ability to trade successfully in Europe has to be the priority for business. Staying in the customs union is the best way to achieve that."

Last week UK Prime Minister Theresa May pledged to help schools and companies in England confront the 'hidden injustice' of mental illness of students and employees, in response to mental health experts’ call for further funding.

In a speech, the UK PM announced that more backing, approx. £15 million, will over community care, training for teachers, and increased help in the workplace. According to the BBC, the UK government says one in four people has a mental disorder at some point stage of their life, and that it costs the country around £105 billion per year.

This month Lawyer monthly heard from several sources, from legal experts to mental health specialists, on what they thought of the plans, what the current law says about mental health in the UK, and how businesses might have to adapt to certain changes.

Emma O’Leary, Employment law consultant, ELAS Group:

Mental health is increasingly talked about in the media nowadays, whether this is because there has been an increase in those suffering from such conditions or just that there is greater recognition we don’t know.  It seems as a result that the Government has finally agreed to act, with the Prime Minister pledging to help companies and schools deal better with mental illness.  Among the promises made are commitments to change attitudes to mental health problems as well as offering training to employers to help them support staff who need to take time off due to a mental illness.

Currently the UK’s employment legislation does not specifically cover mental illness.  The Equality Act provides protection from discrimination for anyone who suffers from a disability; many mental health conditions are likely to be considered a disability within the meaning of the act and, as such, will place a duty on employers with mentally ill employees to make reasonable adjustments.  This may mean accommodating reduced hours and allowing employees to take additional time off for medical appointments.  These are basic provisions and, other than a standard duty of care, the employer does not necessarily have to have anything in place to further support member of their staff with a mental health condition.  Failure to consider reasonable adjustments and treating the employee less favourably than you would an employee without a mental health condition can give rise to a claim for discrimination, for which the compensation is uncapped. In 2015 the average employment tribunal award was £17,319.

The changes Theresa May laid out are designed to not only improve mental health services but also remove the stigma that can be attached to such illnesses.  Training for employers may well be beneficial and necessary but it’s difficult to envisage how this will be manifested and enforced.  It may simply be that employers will be able to access support or be able to apply for some form of funding for training but it’s unlikely at this point that any employer would be forced to take these measures.

Whilst business forums will inevitably say that this is just another burden on the employer and will hit small businesses the most, given that mental illness is prevalent it may be that this will be beneficial to companies in the long term. One in four adults will experience a mental health condition in any given year and, with the cost of replacing staff due to mental health conditions reported to be £2.4bn per year in the UK, it makes sense for employers to help their employees combat the illness and build a culture of acceptance and support.

Being realistic about the pressures employees are under and ensuring they have a good work/life balance, offering support such as confidential counselling or occupational health consultations, employee assistance programmes, mindfulness and relaxations sessions and/or flexible working options are all ways in which a company can help support their employees who may be suffering in silence. There are also mental health first aid training courses, such as the ones offered by ELAS, which can help managers know what signs to look for, ways in which they can approach the subject of mental health with their employees, improve their listening skills and know what options are available to help support someone who is struggling with a mental health condition.

Here are four simple steps a company can take to ensure their employees maintain a good work/life balance:

• Have defined working hours. Ensure that employee workloads are manageable within these time constraints.
• Encourage a culture of openness. Employees must feel able to speak up if the demands placed on them are too great.
• Train managers to recognise the signs of stress and a poor work/life balance in employees. Know the effects that stress can have on a person and put preventative measures in place.
• Put in place policies that acknowledge the links between work-related stress and mental health. Regularly monitor and evaluate polices against performance indicators i.e. sickness or staff satisfaction.

Sean Walsh, Employment Law specialist at Harper James Solicitors:

The announcement from the Prime Minister has been welcomed by some as a first step to achieve equal footing with physical health conditions, but what is it likely to mean for employers?

Currently employers have a common law duty to take reasonable care and provide a safe place of work for their employees.

There’s also health and safety legislation such as the Health and Safety at Work Act 1974 which, whilst not creating rights for employees to sue their employer, affect and influence the common law duty of care. There is related influential guidance from the HSE and ACAS on how to manage work related stress.

There are other Statutory provisions that place additional obligations on employers in terms of their employee’s mental health.  For example, in certain circumstances, an employer has an obligation not to unfairly dismiss an employee. Also, not to discriminate and consider reasonable adjustments if the mental health condition amounts to a disability under the Equality Act 2010.

If the employer breaches its obligations, it could face a prosecution from the HSE.  However, it is more likely to face the prospect of a clam from the individual employee. Employee claims could include:

• a personal injury claim for breach of the employer’s common law duty of care (mainly under the law of negligence);
• a breach of contract claim being either a breach of express or implied terms of the employment contract (including the implied term not to cause psychiatric harm to any employee) which could possibly lead to the employee resigning and claiming constructive dismissal;
• a claim of unfair dismissal if, for example, the employee is dismissed for absence due to a mental health condition; and
• disability discrimination if the mental health condition amounts to a disability under the Equality Act 2010.

Mental health issues are now the primary cause of long-term sickness absence for employees in the UK.  However, many employees are uncomfortable disclosing such issues to their employer and there remains a stigma attached. Part of the measures announced include a review into how best to ensure employees with mental health issues are supported at work in addition to employers and organisations receiving additional training in supporting staff who need to take time off.

It remains to be seen what comes of the review but the likelihood is an increase in awareness of mental health issues, not just among employers and those within who manage staff, but also amongst individual employees.

There are many cases where an employee doesn’t realise they have a mental health condition which affects their work. The measures announced may also provide a more supportive environment where employees are more willing to disclose and discuss mental health issues.  This in turn, is likely to result in employers having to give more consideration to supportive measures for employees with a mental health condition and to get advice from an appropriate professional medical practitioner before making important decisions concerning that employee’s future employment.

Beth Taylor, mental health leader, PwC:

We welcome the Prime Minister's focus on mental health and recognise the vital role the government and companies have to play in offering people the support they need.

As a large employer PwC recognises it is important we help our people take care of themselves by providing tools and guidance to support their mental and physical health. As such, we have multiple programmes in place to help our people build resilience and promote mental wellbeing in both their personal and professional lives.

We have numerous mental health advocates in offices throughout the country, offering our people advice and support and encouraging a culture in the workplace where it is acceptable to talk about and destigmatise mental health.

We communicate with our people throughout the year with resources, information and events to raise awareness. This includes our monthly ‘Green light to Talk’ campaign, which focuses on different aspects of mental health each month. These have included conversations on anxiety, eating disorders, men’s mental health and panic attacks.

Kelly Feehan, Services Director, CABA:

1 in 4 people experience a mental health issue every year, so it’s alarming to learn that so many adopt the British ‘stiff upper lip’ mentality and suffer in silence. Therefore, it’s important for businesses to promote a supportive, non-judgemental ethos to encourage employees to open up. Line managers are evidently highly valued, so employers must ensure that these individuals are well trained to reassure and advise on sensitive issues that may be presented to them, and guide their mentee in the right direction if professional help is required.

Our research highlights a correlation between workers in more senior, higher paid roles and a reluctance to open up about mental health worries. It’s important to remember that mental illness is indiscriminate. If you fear being judged for sharing your experience, there are outlets available which offer counselling and impartial advice on overcoming stress, anxiety and depression. Failing to address mental health concerns can negatively impact wellbeing, job performance and relationships. Remember that a problem shared is a problem halved, so take the weight off your mind and be comforted in the knowledge that you’re proactively moving towards a happier, healthier future.

This week Lawyer monthly heard from Amanda Cunliffe, founder and Chief Officer for Legal Practice at Amanda Cunliffe Solicitors, who below analyses the Government’s proposed changes to small claims limits and offers her expert opinion.

There are a number of common misconceptions among the general public when it comes to personal injury law. The most prevalent tends to be the idea that many – if not most – claimants are fraudulently exaggerating their injuries, to maximise insurance pay-outs following a road accident or workplace injury.

To tackle this perceived problem, the Government plans to reform the way claims are dealt with. This would mean that anyone with a claim worth less than £5,000 would be denied the opportunity to bring a claim to a regular court. Instead, they would have to bring a ‘small claim’ and, in doing so, would have to pay their own legal costs or face being unrepresented.

To give an idea of the impact of these changes, 95% of the claims currently going through court would be affected – losing a right to no win, no fee representation.

Worryingly, the move will rule out many honest victims from claiming lifeline financial support following an accident, particularly those prevented from working, through no fault of their own.

As in any area of industry, it would be dismissive to deny that there are those who look to take advantage of the system, but much has been done to stamp out the conmen. Here are just two examples: in 2013, new legislation placed more potential liability on claimants, deterring false claims; while in 2015 further laws were brought in to ensure absolute independency between lawyers, and the doctors making judgements on injury. The list goes on.

To start a witch hunt on an entire industry on the back of a small number of fraudsters misses a point – what about the large majority of honest claimants who would be forced to soak up prohibitively costly small claims proceedings, or else represent themselves, without the expertise required to develop a convincing case for the court?

As personal injury lawyers, we make a living on establishing the presence of truth through diligent analysis of the facts. Rigorous checks and balances ensure the integrity of our profession. Without trust in our industry, and faith in the judicial system, there is no way the industry can exist.

Crucially, lawyers act on behalf of their clients irrespective of their means. We must afford any people the chance of their day in court, irrespective of their financial background.

By citing insurance premiums as the chief reason for proposing the small claims reforms, the Government is painting the insurers as the victims. But again, a look at the facts shows that this is very likely not the case.

Claims have gone down. The Government’s own Compensation Recovery Unit figures show a decrease in whiplash claims of 22% since 2008. However, in 2016 insurance premiums rose by more than £100 on average, according to research from MoneySupermarket.com.

Some insurers cited insurance premium tax rises as the culprit – however, a 3.5% increase in 2016 does little to explain a jump in premiums of almost 20%.

In Lawyer Monthly's most recent edition you will also find a 'Your Thoughts' feature titled 'What Might be the Impact of the UK's Cuts to Whiplash Claims', which offers particular insight into the government's plans on small claims.

2016’s trademark filings rose 5.2% yoy, and trademarks on their way to registration jumped a huge 10% compared with 2015, pushing 2016 to be a record breaking year for trademarks.

The USPTO’s Performance and Accountability Report for fiscal year 2016 reports a total of 530,270 trademark filings, as opposed to 503,889 the previous year, which equated to a 10.7% increase yoy. However, the trademarks registered in 2016 shot up to 309,188, as opposed to the previous year’s 282,091, signifying a 9.6% increase.

In the face of such an increase, the United States Patent and Trademark Office’s goals of improving prosecution times and quality were met, as the average first action pendency has been reported at 3.1 months, with the total pendency average reaching the 9.8 month mark. The office’s goals for these times were 3.5 and 12 months respectively.

On top of this, the office last week announced the appointment of new patent and trademark advisory committee members, for PPAC, Marylee Jenkins, Chair of PPAC, Jeffrey M. Sears, and Bernard (Bernie) J. Knight, Jr, while for TPAC, William (Bill) G. Barber, Vice Chair of TPAC, Brian J. Winterfeldt, and Ilene B. Tannen.

The Chartered Institute of Legal Executives (CILEx) has responded to the Government's consultation on whiplash reform, saying the plans will penalise genuinely injured persons.

The consultation proposed to remove, or dramatically reduce, the compensation given to people injured in road traffic accidents that were not their fault, and to make it harder for them to get legal advice.

CILEx President Martin Callan FCILEx said: "CILEx members work for both claimants and defendants in these kinds of cases, but all have expressed reservations. These proposals have delivered a cold shiver of uncertainty for CILEx members who support injured persons to achieve restitution, and defendants say that responding to unrepresented and unsupported claimants will cause delay and confusion. I will be meeting with ministers, as well as with my counterparts at the Law Society and Bar Council, to discuss how we can ameliorate the worst impacts of these proposals."

In its submission, CILEx recommended that:

• Under no circumstances should the legal right to compensation for injury caused by the negligence of a third party be removed.
• Compensation should be decided based on the severity as well as duration of injury, and judges should have discretion to decide the level of award.
• A ‘minor’ injury involves a bruise or sticking plaster, not months of suffering. Defining an injury that lasts half a year or more as ‘minor’ is demonstrably wrong.
• The small claims track is for faulty goods and unpaid invoices, not road traffic accident injuries.
• The small claims limit for personal injury claims of any sort should not be raised. It will harm access to justice, worsen inequalities of arms, encourage exaggerated claims, and lead to potential turmoil in an already over-stretched court system.
• Mental health issues should not be treated as ancillary or inconsequential, and compensation for psychological injury should be appropriately assessed and compensated for with propriety and compassion.

Read the full submission here.

(Source: CILEx)

The Fourth Anti-Money Laundering Regulation [849/2015] (MLD4) began enforcement in June 2015 in light of the combat against money laundering and financing of terrorism. Aligned with international standards established by the Financial Action Task Force (FATF) in 2012, MLD4 is now set to change, substituting MLD3 across all Member States by 26th June 2017.

In addition, the EU Commission also initiated another directive this year, MLD5, with the aim of taking MLD4s place.

John Marsden, Head of ID and Fraud at Equifax says: “At least a hundred billion pounds, equivalent to the GDP of Ukraine, is reportedly being laundered through the UK every year*. Financial services providers are vital in the fight against financial crime and its damaging impact; only by implementing robust screening processes and checks on potential customers can they help reveal hidden launderers among the mass of genuine individuals. Combined with the risk of substantial fines if requirements of MLD4 are not met, companies have plenty of reason to ensure their systems are fully prepped for the July deadline.

“The major change companies must take on board is the way they handle politically exposed people (PEPs). These individuals hold some element of political power, making them potential targets for bribery and corruption, and are firmly in the eye of the regulator. MLD4 hones in on this group to a greater degree than previous regulation by encompassing domestic politicians. UK companies must now have enhanced due diligence in place to efficiently identify and monitor UK politicians and their associates and relatives, who in turn must carefully document where their finances come from. Companies must also be aware of the “tipping off offence” under the Directive, which could see additional fines for making those under investigation aware of the situation.

“Financial crime has serious social and economic impact. The crackdown is becoming more prevalent, as evidenced by the Criminal Finance Bill and establishment of the Joint Money Laundering Intelligence Taskforce, and companies must act now to ensure they play their part.”

See here for more detailed information on the amendments made to MLD4 and the proposed MLD5.

*Home Affairs Committee  report, 2016

Following news that the UK government wants to implement digital voting in coming years, at the turn of 2017, the former head of MI6, Sir John Sawers claimed balloting with pencil and paper was much more secure. With the way the internet of things is taking the world by storm, and the digital era is ushering in much more efficient ways of life, digital, or online voting, seems inevitable. However, international cyber warfare is also a major concern, and many also believe online voting could jeopardise the system.

This week Lawyer Monthly reached out to Stephen Wright, Region Manager of eGovernment and digital security experts, Gemalto, who gave his insight on the phasing of digital voting.

How can online voting be made safe?

Online voting can be safe as long as there are robust security mechanisms in place, as well as strong identification and authentication solutions.

A successful eVoting process will involve the voter using an ID card, the system authenticating the user, and the voter then confirming their choice with a digital signature. In Estonia, for example, the iVoting app based on secure authentication technologies from Gemalto has been critical to this process, establishing the country as a digital innovator; the country has had an eVoting system in place for more than 10 years Through iVote technology, an anonymous envelope encrypts an individual’s vote. When the voter signs into the system to cast their vote, their personal data (or outer envelope) is added to the initial encrypted vote. To ensure a voter’s true will is reflected in their vote, they can vote again electronically during advance polls (without duplicating a vote).

Crucially, the encrypted vote and digital signature (or anonymous and outer envelopes) are kept apart, meaning it would be difficult to identify a voter and link them with a particular choice, adding an extra layer of privacy. Moreover, the system can only open the votes for counting if they are not connected to personal data. In other words, eVoting can make election tampering extremely difficult.

It's also important to note that the electoral register database itself must be kept safe and protected from unauthorised access, using appropriate tools like data encryption and strong authentication.

Finally, identity re-validation is crucial. Currently, criminals and fraudsters have numerous aliases and bogus identities accepted as valid by the authorities. These might not even be detected by federated identity models, such as the UK government’s “Verify”, as the same bogus identity data may be held by various parties in a scheme. These fraudulent credentials can be transferred to digital transforms, unless some form of re-validation is performed. Ideally, when granting access to any new service, like online voting, an individual should be issued with a new strong authentication digital credential, rather than just a username and password.

What is wrong with manual voting that necessitates a digital platform?

There are many benefits to a digital platform. In the mobile age, why should voting be linked to polling stations? Why should the elderly or disabled need to travel to cast a vote? In the 21st century, shouldn’t they be able to vote from the comfort of their own homes? Digital voting can reduce citizen’s constraints of both time and geography and the electoral process becomes more flexible and convenient. There’s evidence to suggest it increases voter participation, too. In the Estonian parliamentary elections of 2015, total participation increased to 64.2% from 61.9% in 2007. Plus, the percentage of iVoters increased from 5.5% in 2007 to 30.5% in 2015. Electronic voting can also reduce the administrative burden and costs involved in counting and collecting votes, while increasing confidence in the electoral system. Voter registration, identification and authentication can be rendered quick and simple with an electronic voting system.

What evidence exists to backup the claim that online voting would be more prone to fraud?

Fraud is a problem across the cyberworld, but it can be prevented through techniques like advanced encryption and strong authentication, deployed by Gemalto for the iVoting app. It’s important to note that traditional voting processes are not immune to fraud. Online systems, such as the Estonian version, rigorously anonymise the entire process and only allow votes to be counted once the personal data component has been removed. Consequently, voter intimidation and election tampering become far more difficult.

We would also love to hear Your Thoughts on this, so feel free to comment below and tell us what you think!

The Bar Council and the Young Barristers’ Committee welcome new proposals published by the Ministry of Justice which will mean barristers and other advocates will be paid fairly for the work they do in publicly funded criminal cases.

The new, fairer Advocates’ Graduated Fee Scheme (AGFS), if implemented, will mean barristers’ fees are no longer based on outdated and distorting factors such as the number of pages in a case, but instead are paid according to the seriousness and complexity of the work.

Andrew Langdon QC, Chairman of the Bar, said: “These proposals go a considerable way towards restoring career progression at the criminal Bar. The suggested scheme is a fairer way of rewarding advocates for their work in the criminal publicly-funded sphere.

"It removes a number of perverse incentives arising from years of salami-slice and piecemeal cuts. It will better protect newly qualified advocates who under the vagaries of the present scheme are at the mercy of events not under their control.

"The new scheme is also a positive example of the Ministry of Justice participating in constructive dialogue with the profession through the Bar Council, Criminal Bar Association, Circuits and Young Bar. The Ministry has produced a model which will replace a scheme which has become outmoded and contorted.

"This new scheme is rational and will result in a more sustainable career for skilled advocates. We are urging the Bar to respond to this important consultation. It provides a surer foundation for the future.”

The new AGFS proposals include:
· Fees based on the seriousness and complexity of the work done,
· Restoration of separate payments for PTPH, sentence and mentions,
· Restoration of payment for the second day of every trial,
· Payment of £300 for trials which become ineffective,
· No more arguments over the service of material as evidence,
· A near four-fold increase in offence categories to capture the seriousness and complexity of cases,
· Restoration of career progression - earnings increase as the work becomes more challenging, and
· Encouragement for advocates with the necessary skills to take on more complex cases.
Duncan McCombe, Chairman of the Young Barristers’ Committee, said: “It goes without saying that no scheme is going to be absolutely perfect. There are a few modest drops in the base amounts for payments for some cases. But the clear advantage is that young barristers will be paid for their time in court, rather than being paid on an arbitrary basis, and will paid for each appearance rather than feeling like every other case is a loss leader.

"The scheme also provides the groundwork for newly qualified barristers to have a sustainable career in their early years, and beyond. The young Bar needs a scheme that incentivises progression to more complex and serious cases."

(SOURCE: Bar Council)