Author Archives: Chris Gale

About Chris Gale

Chris graduated from University College Cardiff in 1977 and qualified as a solicitor in 1980. He moved to academia in 1990 with an appointment at the Polytechnic of North London and joined Leeds Metropolitan University (Leeds Law School) in 1994, becoming head of undergraduate studies and being responsible for profiling, timetabling and staff development across the School. He joined Bradford University Law School as the inaugural Director of Legal Studies in July 2005.

Specialties: Human rights, Sport and the Law, Public Confidence in the Legal System

Could businesses be disadvantaged by New UK Supreme Court Appointments?

UK Supreme Court

Courtesy of en.wikipedia.org/

Three new members of the UK Supreme Court are to be appointed within the next few weeks following a recruitment drive because of retirements and promotions.  This is a quarter of its total membership. These Supreme Court personnel changes come in addition to the recent appointment of the court’s new President, Lord Neuberger, who took over at the start of the legal year last October and is still really just finding his way around.

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Nigeria: The need for good communications in labour relations

I was recently working in Nigeria. On the way there, my flight was delayed because of a general strike in that country.  Eventually, I arrived on Monday evening (a day later) and was greeted with the good news that the strike was over.

The impact of unexpected timing on big changes

The reason for it was that the Nigerian Government had reduced a subsidy it pays on the price of petrol with the effect that prices more than doubled overnight. A reduction of the subsidy had been expected, but it had been anticipated that it would be delayed for a while or phased in over a period of time. But it had happened without warning and overnight on January 1 2012.

Government and unions at odds

The compromise which ended the strike still saw prices at 50% above their December 2011 level, but at considerably less than the price last week. Neither side seems to see this as the end of the matter with the Government wanting to reduce the subsidy further again so that it can use the money saved on ‘social’ programmes and the unions wanting the price to go back to its 2011 level. The unions claimed that the majority of the poor were unable to sustain the price rise and its knock on effects on other consumer prices.

Compromise is the best solution

This debate will continue long after I have left Nigeria I am sure and will, I hope, end in a sensible compromise – not the change of regime hinted at by some on the union side or the control of the streets by the army as hinted at by the Government’s supporters. What it did bring home to me is the need for good  communication in labour relations. In a situation such as last week’s in Nigeria, everyone was hit by the strike and the economy will have suffered. It is much better to try to work a compromise whilst it is ‘business as usual’ and there is some money to talk about.

 

Communication is key in labour relations

The key to this must be communication – if the Government had been clearer about its intentions, organised labour may not have felt cornered as it did, leaving it to reach in the only way it saw available to it, however potentially destructive. It felt it had no voice. In the back of my mind are the similarities with labour relations in the United Kingdom in the 1980s – too many entrenched political positions and not enough communication.

Public spending cuts in the UK

As disputes increase in 2012 in the UK as public spending cuts bite further and other tensions increase because of the economic situation, I do hope we can remember the value of communication itself and having lines of communication open….and I hope the Nigerians see the end of the strike not as a weakness but a strength and an opportunity for real negotiation.

What do you think we can learn from overseas situations like this?

The language of the law: Legal systems rather than legal solutions cause difficulties for business

legal terminologyI have recently returned from Hong Kong where I co-arranged and attended the International Conference on Access to non-judicial Justice. Presentations from over a dozen countries concentrated on how disputes can be solved without the need to go to court.  Going to court seems to be regarded as just as uncertain, costly, nerve-wracking and lengthy a process across the world as in the UK.

Things are simpler when legal terminology is part of everyday language

What was particularly fascinating is this. When there is an international conference which focuses on courts or court processes, all speakers need to spend the first part of their presentation giving the context – explaining their legal system, how it works in the situation they are describing and what overarching constraints and political issues there may be. In the Hong Kong conference, there was little or no such need – everyone understood what arbitration, conciliation, mediation and the other matters before us meant. Except where the law of a particular land had somehow interfered, the ordinary everyday use of those words was transferable and all delegates understood what was meant and time could be spent on the particular process and its successes and failures.

It is legal systems rather than legal solutions which cause difficulties for business

As most of the forms of alternative dispute resolution we were talking about included dealing with business and commercial matters, it occurred to me that it is legal systems rather than legal solutions which cause difficulties for business.

European law has made business transactions easier

In this time when it is fashionable to scoff at the European Union, perhaps more heed should be had to the impenetrable tangled mass of legal situations there would be in European business dealings if there were still no European law and how impossible that could make effective business transactions in the modern world.

Alternative Business Structure: Legislation that will change the shape of the legal services market delayed

lawPart of Legal Services Act 2007 was due to come into force in October this year. At the last minute, it has been delayed until the New Year which says a lot about its controversial nature. It will mean that firms of solicitors can become part of an ‘alternative business structure’ whereby a firm can be owned in part or totally by non-lawyers.

Non-lawyer involvement is radical change for legal services sector

This is a radical change from how things have been for many years.  Only recently have firms been able to take on a limited number of non-solicitor partners, in very defined circumstances.  Clearly it opens the way not just for outside investment but for active participation in the business by non-lawyer individuals or organisations including financial services organisations or supermarkets.

Only 45% of law firms considering outside investment

This has been a long time coming – the legislation was passed four years ago.  Opinion in solicitors’ circles has oscillated from seeing it as a golden opportunity to seeing it as a threat which is likely to bring the world as we know it to an end. Accountants Baker Tilly recently surveyed law firms in part of the Yorkshire area and found only 45% were considering an outside investor. This seems to show ‘cold feet’ as the big day draws closer as some 56% of these firms were considering such a move last year.

Public must be protected in opening up of the legal profession

A major concern is that the public must be protected in any opening up of the profession – both in terms of the quality of advice received and continued security of finances entrusted to firms. The Legal Services Board, Law Society and Solicitors Regulation Authority (SRA) all believe that the rules which will apply will offer such protection.

Alternative Business Structure will change the shape of the legal services market

Maybe there will not be huge changes on day one, but they will surely come and when we look back in three, four or five years the legal landscape is likely to look different from how it does today. Whether that will be good or bad, and for whom, only time will tell. Further change is likely as a result of Review 2020, currently underway jointly between the SRA and the regulatory bodies for barristers and legal executives and which will take account of the future demands on legal services and the changes that will shape the legal services market of the future.

Fear of polarisation of legal firms

The legal profession is noted for its caution. It is not well loved by the public. It has, however, been in the vanguard of fights for individual rights and liberties and equal access to the legal system. It has also, despite its often unwarranted ‘fat cat’ image, suffered withering attacks in recent years on state funding received by way of legal aid to the point that many firms are at the edge of viability.  It is hoped that a cautious, pragmatic approach to the new order will yield benefits for all but there is a very tangible fear of a polarisation of firms – the well supported new alternative business structures, dominated by non-lawyers, and the remainder of the profession, unwanted by or unwanting of outside investors eeking out an existence.  This would change the legal world for ever and probably not to general benefit.

Despite the often negative reputation of the legal market, we often don’t realise how good things are until they are gone or changed forever. Does the delay to bringing the legislation into force reflect a nervousness that it may be a big mistake that cannot be taken back?

Why have a constitution for how businesses are run but not how the country is run?

constitution-of-the-unitedThe constitution of a company is simply a list of the rules by which it is governed and, similarly, the constitution of a nation state is a list of rules by which it is governed.  In the case of a company, these rules can be found in the Acts of Parliament governing companies which are in force for the time being added to the documents filed at Companies House when the company was incorporated. In the case of many nation states, they are found in a written constitution.  The national written constitution has usually been put together after independence has been gained from an imperial power, regained after a period of occupation or after a division or coming together of previous nation states.

1. The UK doesn’t have a recognisable written constitution

The only country without a recognisable written constitution is the UK. This does not mean that there are not rules by which we are governed – simply that they are not collected together in one place and not all of them are written down.

The rules by which the UK is governed are an elaborate tapestry of Acts of Parliament, secondary legislation made thereunder, decisions of the senior courts, conventions and the Royal Prerogative. The Royal Prerogative is the total of the powers of the Crown not given by legislation to some other body since the ‘Glorious Revolution’ of 1688 in which the incoming monarchs agreed to share power with Parliament. But, over the years, Parliament has become in practice the dominant force in this arrangement.  There are two parts in effect to the Royal Prerogative –those exercised personally by the sovereign and those exercised on her behalf by her Ministers –the latter being by far the most significant.

2. Why doesn’t the UK have a written constitution?

Why do we have such a strange, maybe old fashioned arrangement?  One of the reasons is that in 1688, no one thought about writing constitutions and, since then, we have not been affected by imperial overlords, occupation, or dividing up the state.  We are quite capable of writing written constitutions – most of the former British Empire got a written constitution as a ‘leaving present’ when it became independent. Some used and still use it; others quietly put it in the bin like the unwanted birthday present from an elderly aunt.

3. Why is the UK not having a written constitution significant now?

The elections and referendum of May 2011 make two things apparent.  First, there is no great appetite for reforming the method of voting in Westminster Parliamentary elections.  But, second, in a system where a form of proportional representation is used, the voting for the Scottish Parliament – the system which is maligned because it supposedly never produces an outright winner – a party which advocates breaking up the union of the UK has won an overall majority.

Whether that is the way of the future or not, it is clear that the rules by which the UK is governed are getting more complex and difficult to manage.  Maybe now would be a good time for the Government and other parties to sit down and produce a clear written statement of what they are, so we know with certainty what to do if we do want to change them in the future?

The Bribery Act: At what point does being part of a six figure corporate package look like being a bribe?

Bribary 2012The Bribery Act 2010 describes itself as ‘An Act to make provision about offences relating to bribery; and for connected purposes’ – nothing too controversial there you would think.

The Act is due to come into force on 1 July following recently published guidance from the Government to give firms a better understanding of where they stand – but has this shed enough light on what could still be a subjective matter?

1.      Who is affected by the criminal offences section of the Bribery Act?

The  criminal offences that the Act will introduce will affect businesses of all kinds, both private sector and public sector. Essentially, anyone carrying out an economic activity in the UK will be caught by the Act and a serious breach could result in a 10-year imprisonment and/or an unlimited fine and/or a prohibition from tendering for public contracts.

2.      When is corporate entertainment bribery?

Corporate entertainment is a commonplace part of most industries and is itself a large industry. People will have to be proportionate with the entertaining they do and judge circumstances carefully or they could fall foul of the Act. What may seem to be a reasonable ‘thank you’ event to a valued customer or contact may seem like a bribe for someone you hope to gain business from. However, the new guidelines do emphasise a ‘common sense approach’ to complying with the legislation.

3.      What policies need to be put in place to ensure that gifts and entertaining aren’t classed as bribery?

Many public sector organisations and multi-national corporations already have policies on gifts and entertaining. The Serious Fraud Office guidance suggests businesses should have written policies to cover gifts, hospitality, facilitation payments, political contributions and lobbying activities.  We are also told that the authorities will themselves take a ‘proportionate’ stance when investigation and prosecuting and by that we understand that the usual Christmas drinks or a day at the races should not be caught. 

But in the days when the Government claims to be looking to ease the burden on business, the devil will lie in the detail. The organisers of London 2012 Olympics are charging an astonishing £4500 for some seats at the opening and closing ceremonies and at some of the top events and ‘prestige’ seats, the very ones likely to be wanted for a hospitality event,  can only be bought in blocks of ten.  As additional events have to be booked at the same time, corporate hosts could, literally, be paying six figure sums for relatively modest numbers of tickets. 

Clearly, many businesses are not in that league. But for those who are, and want to impress by being part of the biggest sporting occasion in the UK since 1966, the question arises – at what point does being part of a six figure corporate package look like being a bribe?

Votes for prisoners: Is it one rule for governments and nations and another for businesses?

political-prisonerMPs have voted overwhelmingly to continue denying prisoners the right to vote.

Apparently, prisoners have ‘broken their contact with society’ and this entitles society to further isolate prisoners, most of whom would probably not seek to exercise a right to vote even if they had it.  Most will also be released back into the community in due course, so disenfranchisement may seem a step too far.

1. What rights are prisoners entitled to?

Imprisonment and its consequent deprivation of liberty is supposed to be the penalty for transgressing state regulation, not a situation in which to punish inmates further.  Numerous decisions of the UK’s domestic court over recent years confirm that, as long as it is consistent with their deprivation of liberty, prisoners are still entitled to the rights everyone else enjoys.

2. Why has the issue of prisoners’ right to vote been raised?

The issue over votes for prisoners has come about of course because of a ruling of the European Court of Human Rights (ECtHR) on the application of former prisoner John Hirst.  The ruling in 2005 was at least in part made because there had been no recent substantive debate in Parliament about the issue – the law banning convicted prisoners from voting dates from 1870.

3. What are the consequences of continuing to deny prisoners the right to vote?

It may be that the message from the recent vote in the House of Commons will soften the ECtHR’s stance, but the present position is that, unless votes are given to prisoners by August this year, the UK will be in breach of the court’s ruling. Dominic Grieve, the Attorney General (the government’s chief law officer) has said in Parliament that is worth bearing in mind that the government would be in rather serious breach of the principles of the rule of law and behaving, in fact, ‘tyranically’ if the ruling were overlooked.  There is not an enforcement mechanism as such but tradition has been that, as a member of the Council of Europe, the UK does what is necessary to comply with EctHR rulings.

Claims are made that the UK Parliament’s sovereignty is being ‘stolen’ by institutions such as the Council of Europe and the European Union. These are disingenuous – we have willingly entered into membership of these ‘clubs’ and could withdraw.  It seems that, while members, we should abide by all the rules rather than just those we prefer. It is really a matter of governance – would not the consequence of a business not abiding by the rules be enforcement and approbation? Why should it be different for governments and nations?

Another one bites the dust: Are football clubs playing the game when it comes to employee contracts?

Football contractsDespite being regarded by all commentators as a nice man and by most as a good football manager, Roy Hodgson’s departure from Liverpool ‘by mutual consent’ is the third Premier League manager to leave his job in the current season –which is only just over half way finished! 

This, together with the constant press coverage of players looking to leave clubs even though under contract, or using interest in their services from a second club to ‘persuade’ a better deal out of their current employers juxtaposes harshly with those employees on minimum wage in the public sector who may be leaving employment, ‘by mutual consent’ or more likely otherwise in the next few months.

Are sports clubs and stars playing by the rules other organisations and employees have to adhere to? Here are the key facts:

  1. Employees’ rights should all be the same. Theoretically, an employee is an employee, whether a star Premier League striker or a less glamorous road sweeper for the local council.  Each has rights and responsibilities in relation to his employer. Each is entitled to a statement of the basic terms of their contract as they start employment and each is entitled to consider action if they think that their departure from employment is unjust – whether by way of action for wrongful dismissal under the contract of employment or by action for unfair dismissal under statute.
  2. Both employees and employers have duties to fulfil. The rights of employees may well be touched on in this blog in the future.  Just now, I am reflecting on their duties. Amongst a number of duties defined by the courts over the years are those of ‘obedience’, to take reasonable care, and of ‘fidelity’.  In return for this, employers owe duties, amongst others, also to take reasonable care and to treat employees with respect.  Some of these terms may be expressed in rather old fashioned language, but I think most people will see what the courts were getting at.  Many ‘ordinary’ workers face career threatening disciplinary proceedings or worse for alleged breaches of their duties, though it seems unusual for sporting ‘stars’ to be held to account in the same way.
  3. ‘Treating employees with respect’ often just means cash for football clubs. I do feel sorry for Roy Hodgson in the position he found himself which did appear, from what has come out in the media, to be close to untenable.  I am also fairly certain that the ‘mutual consent’ part of his departure had more than a little to do with the financial size of the pay off he will receive from Liverpool FC .  How much easier it seems to be for Premiership football clubs to treat their employees ‘with respect’ in this area of the contract than it is for cash strapped local public sector employers.

In return for the enhanced ‘respect’ provisions football club staff, and indeed other sports professionals, seem  able to receive, I do hope we will see a little more in future of their duties of obedience and fidelity than some of the money grabbing, selfish antics which do become public. 

Surely the public sector workers who find themselves out of a job because of the spending cuts may just find their situation just a little easier to take if the well paid sports stars they see actually do ‘play the game’?

Sporting Integrity: What Counts As Cheating?

football-stadiumWe are told a lot about ‘cheating’ and ‘corruption’ in sport but there is no real definition.  Do we mean something which goes over the criminal offence boundary (clearly) and/or something which is unacceptable on another, even moral level?

Is it something to be judged ‘in its time’?

1. What is cheating in sport?

I was at a most interesting event hosted by FrontRow Legal at Elland Road last week.  The speakers were open and thought-provoking with their views on ‘Sporting Integrity vs The Lure of Money’.  Rick Parry, former chief exec of the FA Premier League was a key speaker along with Ian Smith, legal director of the Professional Cricketers’ Association, Anthony Clavane – the Sunday Mirror sports journalist, and Alan Smart who has a security consultancy.

The point was well made that our views of cheating and corruption have changed over time.

2. Views of cheating in sport change over time

Take Leeds City Football Club which was kicked out of the Football League in 1920 for fielding non registered players in a non-competitive series of games during World War I.  It probably wouldn’t raise an eyebrow now but was clearly severely disapproved of then.

Even the 1936 abdication crisis would probably be little more than tabloid gossip now!  Where does promising a vote for, say, hosting the World Cup and then going back on the promise fit in – is it really cheating or corruption?

Gambling in sport clearly can result in cheating (arguably Pakistan’s cricket team) and this can align to corruption.  Rick Parry feels very strongly that cheating to lose is a very different phenomenon – and influenced by gambling – from cheating to win, which comes from being highly competitive.

3. Sport governing bodies must lead

Rick Parry and his committee’s report on a Sports Betting Integrity Panel concludes that every sport governing body has to have rules fit for its purpose and appropriate but proportionate disciplinary powers.  There should be a pan-sport ‘integrity unit’ and that all sports should educate participants from an early age.

The most important is education – showing young sportsmen and women the serious dangers and repercussions of cheating and training them on how to avoid pitfalls.

4. Education will change the culture of cheating

Education has the capacity to breed an ethic and responsibility that becomes a driving force.  As an example, education about drink driving and its effects has, albeit over 40 years, changed perception of drink driving from being ‘harmless’ in the main to being ‘criminal’ in the true sense of the word.  Most people now see drink driving as morally appalling behaviour rather than just a regulatory tool for the police which anyone could fall foul of.

I would certainly see education as the starting point to cleaning up much of the mess that the sports world is currently in.  But who is going to take the lead to make it happen?

Who will explain the reality of fee increases to students applying for 2012 university entrance?

University2Whether you think that the policy behind it is right or wrong, it seems that the ‘hearts and minds’ campaign to convince students of the fairness of the proposed increase in university tuition is backfiring.

I’m not talking about the vandalism in London last week during the protest about the proposed hiking of fees from 2012, but two things that I have personally observed in Yorkshire in the last few days.

1. Students do not understand the proposed fee increases

The first is that current students do not realise that there will be no more of an upfront payment due under the proposed scheme, than there is under the present scheme – under which they entered and will leave higher education. 

This perhaps shows that government assumptions that everyone understands the new policy are not true and, in such a major change to higher education, this position needs stating time and again until the message hits home.

2.  Teachers in the dark about 2012 university entry

The second thing is that the teachers advising those who are going to apply for 2012 entry are hopelessly in the dark.  As intelligent people, they will have read and heard the news and have the basic information they need from there, but whilst universities themselves are digging to find the nuances of the Browne report and beginning to formulate their response to it, schools and colleges have their everyday business to run as usual. Higher education entry is an important part of their business but it is only one part of that business – and it is at the farthest end of their remit. 

Not only do universities have a duty to keep advising our next generation of students about how we are working through the implications of Browne generally, but I hope we also take on board and include schools and colleges – who provide the majority of our students now and in the future – in our conversations.

Have you found that students and teachers understand the reality of university fee increases for those young people applying for 2012 entry?