The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.
Group actions against Mercedes-Benz
Reported by Katie Henderson
Joint claims are being brought against the German car company Mercedes-Benz concerning diesel fraud allegations.
Among many UK firms urging potential claimants to come forward are PGMBM, Slater and Gordon, and Leigh Day. PGMBM filed papers at the Liverpool High Court earlier this year. They are encouraging customers who owned or leased vehicles between 2017 to 2018 to join the group action. It is suggested that the alleged issue has affected 500,000 diesel vehicles, with over one million UK consumers eligible to join the claim.
In 2018, the German Federal Motor Transport Authority, Kraftfahrt-Bundesamt (KBA) found that some 280,000 vehicles had been outfitted with illegal defeat devices. Slater and Gordon allege that the company fitted these defeat devices to falsely pass regulatory checks; without them the vehicles would have failed.
It is claimed that by fitting such devices, Mercedes deliberately misled their customers as to the levels of emissions in their vehicles, as well as the possibility of exposing them to high volumes of toxicants in polluted air. This may have also led to higher maintenance and fuel costs.
During the 2015 “dieselgate” scandal involving Volkswagen, in which 100,000 drivers in England and Wales won a group case, the same devices came under scrutiny. It was found that the device worked by limiting the amount of nitrogen oxide in the vehicles exhaust to meet the required levels.
Mercedes-Benz denies any wrongdoing. A Daimler AG (parent company of Mercedes) spokesperson says: ‘we believe the claims are without merit and will vigorously defend against any group action’.
Ministers’ Attacks on the Legal Profession
Reported by Louise Horn
Accusations of lawyers undermining the justice system by ‘playing politics’
Chris Philp, the immigration minister, has been seen condemning lawyers for last-minute challenges to the deportation of asylum seekers. In a letter, dated the 10 th November to Mhairi Black, the SNP MP, he wrote that members of the legal profession, ‘take advantage of their position and abuse the court process by playing politics’. He further added that, ‘the government has often seen its efforts to facilitate entirely legitimate and legal returns [of asylum seekers] frustrated by last-minute challenges that have been unfounded.’ These are fresh attacks on the legal profession in what many describe as a widening and concerted government strategy.
Many MPs have accused ministers in recent months of ‘demonising’ asylum seekers in intensifying debates concerning the crossing of migrants over the channel. The Home Office has also recently criticised ‘activist lawyers’ that they see as trying to undermine the rule of law. Similar to Chris Philp’s comments, Dehanna Davison MP claimed that legal returns of illegal migrants were ‘frustrated by activist lawyers putting in last-minute challenges’ and that such lawyers were ‘happy to see taxpayers’ money wasted’. Philp’s comments also come after a video was posted on Twitter by the Home Office with a statement: ‘allowing activist lawyers to delay and disrupt returns.’ The video was quickly deleted.
Many in the legal profession are concerned with the continuation of such remarks by Government Ministers. The system of ‘checks and balances’ is fundamental to the UK constitution. Government accountability arises from this system and is vital to the way the UK’s system works. Many have pointed out that such remarks and attacks threaten the entire system and frustrate the justice system.
Critics of his remarks argue they are the result of a lack of fundamental understanding of how the court system in the UK works and the role lawyers play within it. Amanda Pinto QC, the chair of the Bar Council, said that such last-minute challenges are often the result of late or immediate deportation decisions by the Home Office. So, they are inevitable. To attack these actions would mean discouraging lawyers to fulfil their professional obligations to defend their clients’ rights as well as to discourage seeking the government accountable where it might be acting unlawfully.
Some also point these comments as an attempt by the Government to direct crucial attention away from the real problems of extremism and domestic terror that will most likely not be tackled by pursuing the populist policies the government has been putting forth.
The National Security and Investment Bill 2019-21
Reported by Jasmine Cracknell
The Government has introduced legislation which will tighten the rules around foreign investment in UK companies in the biggest overhaul of UK takeover law for the last twenty years.
The National Security and Investment Bill will allow the Government to investigate and block foreign takeovers of British companies on grounds of national security.
Under the new mandatory notification framework, companies would be required to notify the department for Business, Energy and Industrial Strategy if they plan to acquire more than 15% of the shares or voting rights in a UK business. If a transaction which falls within the rules of mandatory notification is completed without approval, it is void.
Where the Government thinks a transaction poses a national security risk, it would have the power to (among other things) alter the amount of shares an investor is able to acquire and restrict access to commercial information. The Bill also allows the Government to investigate transactions up to five years after completion.
Where companies fail to comply with the regulations, the Government would have the power to impose penalties. These include a fine of up to 5% of worldwide turnover or £10m, whichever is greater, or up to five years in prison.
The new rules will apply to businesses in seventeen key sectors in which the Government deems risks are most likely to arise. These include transport, energy, data infrastructure, advanced materials, and artificial intelligence. The precise scope and definitions of these sectors are currently the subject of a consultation which is expected to conclude on 6 th January 2021.
The powers granted under the Bill go much further than the Enterprise Act 2002, under which there have been only 11 interventions on national security grounds.
Under the new system, an impact assessment estimated between 1,000 and 1,830 transactions would be subject to mandatory notification per year. Unlike the 2002 Act, there would also be no minimum turnover or share of supply threshold that would need to be met before an investigation could take place.
While some believe the new rules will impose a regulatory burden and cause acquisitions to be delayed, the Government stated that the “vast majority of the transactions will not be called in, and this process can therefore provide more certainty and confidence for businesses and investors that the Government will not intervene in their investment.”
The Bill is currently at committee stage but, when passed, will apply retrospectively from 12th November 2020. It is likely that this is to prevent a flood of acquisitions taking place between the Bill’s announcement and the date it is passed.
Ongoing plans to reform the UK Supreme Court
Reported by Laurence Tsai
The government has communicated its intention to curtail the court’s ability to become involved in constitutional issues since last year’s parliamentary prorogation case, in which the Supreme Court (“UKSC”) ruled unanimously that prorogation of parliament was unlawful.
The debate about reforming the UKSC and the wider judiciary has floated around for quite a while, yet it has gained real traction with the emergence of the court’s rulings on constitutional matters. Proponents for the reform argue that the UKSC enjoys excessive judicial activism, in that, the UKSC has the freedom to decide cases without accountability to any further court of appeal.
Ministers are discussing plans to change the substance of the UKSC. Such changes include changing the name, reducing the number of permanent judges and drafting in those with specialist knowledge to sit on cases. There is speculation that there will be a focus on individual judges and their backgrounds. The proposals resemble a policy paper published by the thinktank, Policy Exchange, in July entitled, Reforming the Supreme Court. The essay also suggested replacing the supreme court with an “upper court of appeal” and having specially selected panels for separate cases.
The Labour party has condemned the conservative’s plan as an assault on the independence of the judiciary, terming such discussions around reform as an act of political vengeance following the aforementioned decision of proroguing parliament. Opponents of this change see it as an attack on the public, who rely on an independent judiciary to uphold the law.
The difficulty with limiting the court’s powers requires the arduous task of, as highlighted by the Policy Exchange essay, distinguishing between the legitimate role of the courts in evolving the common law and abusing that role by prioritising judicial policy-making.
The UKSC enjoy the freedom to decide cases without accountability to any further court of appeal. A proposal to address this issue would be to abolish the UKSC and disperse its functions to a panel of judges assigned on a case-by-case basis from judges in the respective court of appeals of England and Wales, Northern Ireland and Scotland. The intended result would be to increase diversity of the new UKSC (or the new “final court of appeal”), in terms of gender balance, BAME representation and socio-economic background.
However, the perceived issues would be a risk of inconsistency in case law as there will be a larger pool of judges from which to select and this may also lead to a decline in the quality of judges. But the risk of inconsistency is already apparent with the current operation of the UKSC who can overrule previous case-law. Indeed, certainty is not guaranteed in a legal system in which a substantial body of law is interpreted and adapted by judges to changing circumstances.
Opponents of reforming the UKSC, including Lord Kerr, argue that the UKSC are not more ready to interfere with decisions of government. One could argue that where the UKSC holds a finding that goes against the government’s intentions illustrates the efficacy of the UK’s separation of powers. A recent example is the 2018 decision where the UKSC held that a statute, which did not permit heterosexual couples to enter a civil partnership, was incompatible with the European Convention on Human Rights. Accordingly, the government had the choice to follow the court’s decision and amend legislation or enact new legislation, or to ignore it.
Because there are differing views on how the UKSC (mis)uses its powers, a meaningful debate is required to critically analyse the merits for and against reforming the UKSC beyond the existing government’s (potentially) politically-driven agenda to unchain the executive by, among other things, limiting judicial power.