Legal Tea with B – Uber and Judicial Corruption + Grenfell Gag clauses

Welcome to my selection of interesting legal news and updates. Grab a teabag, some hot water and enjoy!

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Uber’s 15-month licence to come under Judicial Review following alleged Judicial corruption

Many of us thought Uber’s days in London were over in 2017 when they were stripped of their private car hire licence. Backed by London Mayor Sadiq Khan, TfL made the decision not to renew Uber’s licence for the capital, stating that they were not “fit and proper” as a private car hire service. It was a victory of some sorts for Black Cab drivers, who had been seething at the detrimental impact services like Uber have had upon their business.

Uber’s lack of corporate social responsibility

According to Tfl, Uber’s “approach and conduct” indicated a lack of corporate responsibility. At the time Uber had gained a reputation for ‘reporting serious criminal offences, obtaining medical certificates and driver background checks.’

Tfl also took issue with Uber’s use of a software programme called ‘Greyball’ which apparently could ‘be used to block regulatory bodies from gaining full access to its app and undertaking regulatory or law enforcement duties’ (The Guardian, 23rd Sep 2017). In the same year, an ex-Uber security manager revealed Uber’s criminal practices allegedly included spying on competitors.

Uber’s temporary licence

In June 2018 Uber was granted a 15-month temporary licence to continue operating in the capital. At a hearing in Westminster Magistrates’ Court, Chief Magistrate Emma Arbuthnot found that Uber had changed its ways and was now “fit and proper” to operate in the capital. Uber had successfully bought itself some time.

A successful application for Judicial Review

However, it appears that the Chief Magistrate’s decision may come under the scrutiny of Judicial Review. Andrew Gilligan of The Times reported that Robert Griffiths QC, acting for the United Cabbies Group was successful in persuading the High Court to permit Judicial Review of Arbuthnot’s ruling on the basis of “bias” that may have informed her decision. Mr Justice Walker’s remarks were that Uber had “gravely misled the regulator and the court” in June of this year. In August 2018, it came to light that Arbuthnot’s husband, a former Tory MP, worked within a ‘strategy firm’ that advises one of Uber’s top investors. Following this, Arbuthnot withdrew from a case concerning Uber’s licence refusal in Brighton.

It seems that there is a lot more drama swirling around Uber’s licence in London (which for the time being remains in effect) than we may have first thought. We should definitely be keeping an eye out if this case does proceed to JR stage as it could be commercially fatal for Uber’s presence in London.

A firm involved in the aftermath of the Grenfell disaster was contractually prevented from criticising Theresa May and her Government

According to an article written by The Times, in the aftermath of the Grenfell Tower fire on the 14th June 2017, ‘gag clauses’ were included in a contract between the government and experts hired to test the cladding that accelerated the fire. 

Following an investigation by The Times, Paul Morgan-Bentley and Louis Goddard allege that WSP, the engineering company hired to test the cladding 12 days after the fire, were contractually required to refrain from creating ‘“adverse publicity” about the Cabinet Office or other Crown bodies’.

Theresa May’s response to the fire was received critically by the public, in particular the family and friends of the victims as well as members of the community. The Times reported that its investigation uncovered widespread use of gagging clauses by the government. Allegedly cabinet ministers:

…banned 40 charities and more than 300 companies from publicly criticising them, their departments or the prime minister, as part of deals costing the taxpayer £25 billion.

The article went on to list in detail incidents of cabinet ministers enforcing ‘gag clauses’ into contracts where companies and charities were working on projects likely to garner significant public scrutiny and attention. Talking specifically about the contract entered into with WSP, it was reported that: 

The contract, for £100,000 plus VAT, stated the company should make sure that neither it nor anyone working for it should “embarrass” or be “in any way connected to material adverse publicity” relating to the Cabinet Office or other Crown bodies.

Needless to say, the revelations in the Times’ investigation were not received well. 

Time will tell what this revelation will mean. The inquiry into the Grenfell Tower fire is ongoing, although family and friends of the victims as well as members of the community have expressed their disappointment in the process. With the news of five arrests following a video of a racist-effigy of the Grenfell Tower victims being set alight circulating social media last weekend, it’s hard not to feel as if the victims of Grenfell have been disrespected and maligned. 

I’ll leave you with this beautiful poem by Sophia Thakur, award winning performance-poet:

Good Law Project publishes its written arguments on why Parliament can cancel the Article 50 notice in the national interest

On Thursday 8th November, the Good Law Project (discussed in the last edition of Legal Tea with B for their work challenging the Electoral Commission) published their written arguments to the Court of Justice of the European Union on why Parliament should be able to cancel the Article 50 notice if it decided that doing so would be in the national interest. 

I remember learning EU Law during the GDL and attending a special lecture by Lord Kerr, who drafted Article 50 TEU. He told us that at the time of drafting, it really wasn’t anticipated that the United Kingdom would actually use Article 50 – so nobody had really thought through what could happened once notice was given and critically, whether any such notice by a Member State could be undone. However, it seemed that this time last year, his position was that there most certainly was a possibility that Article 50 could be revoked and the Brexit process could be halted and reversed. The Guardian reported that in November 2017, Lord Kerr said the following: 

“It is entirely up to the prime minister to set a date for our departure. My point is quite a different one. These decisions are taken entirely in this country, they have nothing to do with the treaty. As far as the treaty is concerned there are lots of options. There is a provision to seek some extra time for negotiation and, much more important, there’s the ability at any stage to take back the letter that the prime minister sent to President Tusk on 29 March.”

R (Miller) v Secretary of State for Exiting the European Union [2017] 

You’ll remember the relationship between Parliament and the triggering of Article 50 was a key point of contention between the parties when R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 reached the Supreme Court. By a majority of 8 to 3, the Supreme Court held that an Act of Parliament was required in order for ministers to give notice of the decision of the UK to withdraw from the European Union. Read the full judgment here

However, what was not in issue in Miller was whether said notice could be revoked once given. For most, this was not a relevant issue; some thought it far-fetched and some thought it was merely the wishful thinking of so called ‘remoaners’, remain voters upset that the Referendum decision did not go their way. However, as the Good Law Project

The Government has failed to deliver on the promises made in the Referendum and the country now faces the peril of no-deal which was never put to voters. In the circumstances, MPs must be free to pursue all options, including Remaining if that is in the national interest.

Good Law Project – November 8, 2018

Arguing in favour of revocation of notice given under Article 50 by Parliament 

For the Good Law Project, whether or not Article 50 can be revoked once triggered is a question that the CJEU must answer. Their position, given in their written arguments, is that it most certainly can:

The Petitioners’ position is EU law does not preclude a Member State, during any negotiation period while the Treaties continue to apply to it, from revoking in accordance with that State’s constitutional requirements any such Article 50(2) TEU notification. The Petitioners submit that it is of central importance to the European Union, and to its peoples, and to it citizens, that this is so.

Paragraph 2

They emphasised that if the Treaty were interpreted in a way that meant a Member State would have to ‘get back in line’ and ask to re-join the EU if the Article 50 notice were withdrawn, this would be an affront to the core values upon which the EU was founded. Specifically they argue that such an interpretation would: 

…be incompatible with the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights upon which the EU is founded: Article 2 TEU. It would fail to respect essential State functions: Article 4(2) TEU. It would be contrary to the principles of sincere cooperation and of full mutual respect between the Union and the Member States: Article 4(3) TEU. And it would jeopardise the attainment of the Union’s objective of “creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity”: Article 4(3) TEU and Recital to its Preamble.

Paragraph 4

The matter reached the CJEU by way of an Article 267 TFEU reference from the Court of Session in Scotland following an application for judicial review to determine whether or not a Member State could revoke a notification. Take some time to read their arguments in full (their argument is fully set out from paragraph 13 onwards). 

I am extremely grateful for the work that has been completed by the Good Law Project to get an answer from the European Court on this matter. This is a question of major constitutional importance that could help change the course of Brexit and perhaps bring some clarity to the future of United Kingdom’s membership of the European Union. It seems that this viewed is shared:

Follow the Good Law Project on twitter here. If you can, please become a member, donate and help fund their important work.

Knife Crime in London – What to do next? 

Knife crime is a pressing issue. News of killings of children and young people by knives have been splashed across headlines for years, but recently the frequency of attacks and deaths (particularly in London) has increased. This has led to calls for a range of solutions, most notably more aggressive policing and prosecution of children and young people using knives. 

Stop demonising young black boys

However, Temi Mwale who is an activist and the founder of The 4Front Project, an organisation ‘empowering young people & communities to live free from violence, while understanding the systemic conditions that cause it‘, argues that this is not the way. In an article for the Independent entitled ‘Calls for more heavy-handed policing show that we’d rather demonise young victims of violence than help them’, Temi argues that:

Unfortunately, our society has failed to grasp the true scale of the problem. The murders are only the tip of the iceberg. There are thousands of young people who have been violently attacked, stabbed and shot, and have survived. And there are countless more who have witnessed this extreme violence, including many children who have endured the horror of watching their friends being murdered, with the added agony of then having to attend funerals, vigils and court cases.

Temi Mwale for the Independent: November 8, 2018.

Rather than treating the issue through the simplified lens of “victims” and “perpetrators”, Temi makes it clear that young people incarcerated for violent crimes have also been victims of violent crime. Critically: 

Without receiving adequate support to cope with the impact of this violence, these young people would rather become aggressors than ever have to experience victimisation again.

Temi asks the question of why young black boys, who are disproportionately the victims of such violence, are not seen as children. 

Why aren’t these young black boys seen as children? What will it take for them to be seen as victims? And why do young black boys only experience a police force, instead of a police service that is supposed to protect and serve them?

Temi asserts again that calls for increased stop and search and harsher sentences will do nothing to curtail the epidemic of youth violence: 

I am tired of our over reliance on the failing criminal justice system. I am tired of children being treated as risks that need to be managed, with little thought given to their needs. I am tired of our unwillingness to prioritise healing over punishment. We ought to remember that, as Angela Davis once said, “prisons do not disappear social problems, they disappear human beings”.

Neither the victims nor the communities within which they live are being treated with the sensitive handling that victims and witnesses of trauma deserve. Recognising the proposals by officials such as London Mayor Sadiq Khan to treat knife crime as a public health issue in a bid to replicate the success of schemes implemented in Glasgow, Temi nonetheless feels these proposals ‘lack real substance and clear vision’. 

Long-term solutions are the only solutions

Temi makes her own proposals for how we can make long term commitments to tackle this problem and her article is worth reading in full. In a nutshell, planning for long-term commitments is the only viable solution to tackling the issue. This is bolstered by the news that it will take at least 10 years to tackle London’s violent crime issue

In the meantime, victims of knife crime do not feel the streets are safe. Hear from Rico who describes being stabbed 10 times but lived to tell his story: 

Racism at the Bar: Afghan-British Barrister asked to return papers as client wanted a white male to complete the work

I was really sad to hear that a barrister I was lucky to meet last year was subject to a horrible racist ordeal. Rehana shared on Twitter her experience this week of having an instructing solicitor request she return the papers as the client wanted a white, male barrister to take the case. Calling out the racism present not only at the Bar, but in society as a whole, Rehana said in a tweet: “Great to know that no matter what you do in life, you’ll still be judged by the colour of your skin and gender.”

Now her story has become national news. Rehana has received an outpouring of solidarity and support from the legal community and the Law Society Gazette reported that The Law Society has made it clear that in such circumstances, solicitors should refuse their client’s instruction if it is in breach of the code of conduct: 

Rehana has since shared her gratitude for the support she has received, tweeting: “Thank you to all that have reached out. I am overwhelmed with the kind messages of support. It is reassuring to know that there are those in the profession who do not and would not tolerate this kind of behaviour.”

Recognising 20 Years of the Human Rights Act 

Finally, to acknowledge 20 years of the Human Rights Act 1998, Christian Weaver has released a new ‘Law in 60 Seconds’ video breaking down the HRA. Christian’s videos are excellent and I suggest you subscribe to his Youtube Channel and follow him on Twitter here.