Eweida – Did the European Court get it right ?

There has been a lot of publicity about the European Court of Human Rights decision in Eweida & Others v UK. The principles are quite simple; the key to understanding the decisions is the distinction between the right to hold religious faith and the right to display that faith.

Article 9 of the European Convention on Human Rights provides that there is an absolute right to freedom of thought, conscience and religion. However the right to manifest one’s religion or beliefs is qualified. This right is subject to ‘only such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health, or morals, or for the protection of the rights and freedoms of others’. States have a ‘margin of appreciation’ for the way in which qualified rights are interpreted and the ECHR will not interfere with a decision that falls within that margin.

Two of the Applicants had sought to wear visible crosses, in breach of their employers’ uniform policies. That was a qualified right. The Court accepts that a manifestation of religious belief for the purposes of Article 9 need not be “mandated” by the religion but only needed to be “intimately linked”.

Ms Eweida worked for British Airways and wanted to wear a discreet cross visibly, having worn one under her clothing for some time. The Court held that British Airways’ desire to project a consistent brand image wasn’t sufficient, as there was no evidence that the wearing turbans and hijabs by other employees had any negative impact. In fact British Airways had recognised that in 2007 and changed their policy to allow it.

Ms Chaplin worked as a geriatric nurse. In her case the Court held that although her being permitted to manifest her religion must weigh heavily in the balance, the reasons put forward by her employers for asking her to remove the cross outweighed them. These were the protection of health and safety on a hospital ward.

The other two applicants wanted the ECHR to rule that their manifestation of their religious beliefs required their employers change their job descriptions where their beliefs conflicted with some of the duties they were normally required to perform. Ms Ladele was a registrar, whose employer required her to perform civil partnership ceremonies. They attempted to accommodate her but rota changes had created problems. Mr McFarlane had taken a job providing counselling services for Relate, but was unwilling to provide counselling for same sex couples.

Both of their applications failed. The ECHR noted that their employers’ justification for refusing their requests was the provision of non-discriminatory services, so departures from those required serious reasons by way of justification. In Mr McFarlane’s case they also took into account that he had been aware of the requirement about which he was objecting before he took the job but rejected the argument that accepting the job absolved his employers of any responsibility to consider reasonable accommodations.

The ECHR has left the decision to employers. If an employer is reasonable and can explain why a particular policy is necessary it is likely to be upheld. Employers know they should try to accommodate religious beliefs in the workplace and the four cases provide examples of the issues they are likely to face.

Many commentators think that the ECHR has reached the only decision it could. To have done less would have laid it open to complaints of failing to uphold rights granted by law. To be more prescriptive would have opened the door to many more applications, and to complaints that it was interfering in decisions at a level that should be left to domestic courts.

The principle was set out by South African judge Albie Sachs:
“The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding.”

Residential Tenancy Deposits – Avoid Expensive Mistakes

Landlords of residential tenants could be forgiven for being confused about what they have to do to meet the requirements of the Tenancy Deposit Scheme.   When the original statutory scheme was introduced it was then undermined by cases which allowed landlords to virtually ignore it.   Some landlords and agents have got into the habit of ignoring the 30 day limit in the belief that they could put things right later.   That isn’t what Parliament intended, and the courts will not allow it in the future.

Landlords of residential tenants must now do all of the following within 30 days of the start of the tenancy:-

  • Protect the deposit, usually by putting it into one of the tenancy deposit schemes.
  • Serve a notice containing prescribed information, which includes the details of the scheme, how it can be contacted, and what the landlord may deduct from the deposit, plus, usually, the leaflet provided by the scheme.

There are serious penalties for landlords who do not comply.   If the landlord does not serve the notice on time, the court can order the landlord to pay the tenant a penalty of up to three times of the amount of the deposit.   The Court of Appeal has recently ordered a landlord to do that, and that case will be binding on the lower courts.  Landlords who miss that deadline must assume that the starting point will be that they will pay three times the deposit as a penalty.

If the Landlord has not protected the deposit in time the consequences are potentially more expensive.   Any s.21 Notice Requiring Possession is ineffective, as are any possession proceedings based on it.   That cannot be put right later unless and until the Landlord has paid the deposit back to the tenant and then served another Notice.   As a s.21 Notice normally has to give at least two months notice, that can seriously delay the ability of a landlord to get rid of a bad tenant.   Bad tenants are why landlords take deposits. If a Landlord starts possession proceedings based on a defective notice, they will not get possession, be ordered to pay a penalty and the tenant’s legal costs, and will have to start all over again – without the benefit of a deposit.

If you are considering letting residential property please contact Kathryn Lander.

If you have a problem with a residential tenancy please contact Neil Howlett or Andy Hambleton.

Help for Charity Trustees and School Governors

Charities and schools depend on Trustees, many of whom give their time voluntarily and take on major responsibilities. That can be a daunting prospect for people who have skills & experience in other sectors but have not worked in charities before. This can be a particular problem for organisation, such as parent teacher associations and community groups that have a high turnover of trustees and may see several board members arrive and move on each year.

To help them the Charity Commission has published two new online tools for newly appointed trustees.  Their online Trustees Handbook informs new trustees about their duties and responsibilities towards their charities and explains how to make use of the Commission’s online services and guidance. This includes a checklist of documents and information new trustees should either receive from their charity or find for themselves on the Commission’s website, including the charity’s governing document, recent charity accounts, minutes of board meetings, the charity’s conflicts of interest policy and key guidance such as The Essential Trustee.

Governors of academies, foundation and voluntary schools who are also trustees have the same responsibilities as trustees of registered charities. The Commission has joined with the school governor recruitment charity SGOSS and the Department for Education to produce an Introduction to Charity Law for Governors of Academies, Foundation and Voluntary Schools. This summarises their responsibilities and explains where they can find further information.

Harris & Harris can help schools and charities. Please contact Roland Callaby or Tim Berry.

 

Are Legal Services Regulated?

The short answer is “No”. Regulated legal services are regulated but there are many legal services that can be provided by unregulated businesses. Regulated legal services, with independently reviewed standards, complaints procedures and insurance, are provided by Solicitors, Barristers, Patent Agents, Legal Executives and Licensed Conveyancers.

If you are using anyone else, their services are not regulated, and your rights are limited to your contract with them, and the small print that they have included. In many cases that small print excludes all liability to you. Some may be members of trade organisations, but the effectiveness of those is variable.

We are regulated by the SRA, and have to give you information about who is doing your work, their status, what you will be charged, and protection against defaults by us, and protection for your funds if we hold them. If you are using an unregulated Legal Services Business, are they qualified to give you good advice, do you really know what they are going to cost and what happens if things go wrong?

The Legal Services Board, which is the “Super Regulator” for legal services is recommending that Will Writing and administering Probate should be regulated. At present there are many Will Writers, whose qualities are variable. We have seen firms come and go, and wonder what happens to the Wills they wrote. When we’ve looked at their charges, they are often more expensive than us because the price on their advert is only the start. Some Will Writing businesses are franchises, and the only qualification that the people have is going on a course for a couple of days. Also, they will be looking to use the opportunity to sell you other products, on which they will be earning commission.

The Legal Services Ombudsman has reported a major issue with people complaining about unregulated legal services, with which the Ombudsman cannot deal. If you are going to get legal advice you need to be confident at the outset about who is providing it.

Frome New Business Competition

Winner Joshua Maynard with Tom Killen of MDC

Harris & Harris were sponsors of the 2012 Frome New Business Competition run by Frome & District Chamber of Commerce.

There were a wide range of entrants reflecting Frome’s range of artisan, creative and traditional businesses. They included Absolutely offering artisan preserves and pickles, Julia’s Kitchen with gluten & dairy free cakes, and Yumble with both sweet & savoury crumbles. We also had two great teams running café’s; the already successful Manor Café and Bayfield’s Coffee about to open at the new Health Centre. Traditional & creative industries were represented by Dean Press letterpress printing and John Walton a new blacksmith who will offer “make your own” days. Anyone doing one might then want a day at The Saltbox in Nunney which combines business skills training with therapies.

The award was made at a gala event at Rook Lane Chapel. The judging panel, including Neil Howlett from Harris & Harris, with representatives from Superior Graphics, Old Mill Accountants, Sainsbury’s  and MDC gave the award of £1,000 to The Wax Factory, a business started by a student doing his A Levels. They were impressed by the comprehensive strengths of a young entrepreneur who is continuing to run his business while doing a degree. All the competitors will continue to get support from the sponsors and from Wessex Chambers Business Support advisors.

Harristocrats Win Charity Quiz

The Harris and Harris quiz team, the “Harristocrats”, made up of Adam Drew, Fiona Shillito, Val Hayes and Steve Cox has won the Monahan’s annual charity quiz for the third year running. Congratulations team! The money raised is in aid of St Margaret’s Hospice.

 

Harris & Harris Staff Scale New Heights!

Harris and Harris recently sponsored a charity abseil of Split Rock in Wookey to raise funds for St Margaret’s Hospice – http://www.somerset-hospice.org.uk/.

Well done to Adam Drew, Alison Englander, Andy Hambleton, Kathryn Lander and Joshua Eva for taking part in the event and conquering the notorious Split Rock abseil in support of St Margaret’s Hospice. Several members of the group overcame their fear of heights while other members clearly enjoyed the experience by racing to the bottom at break neck speed!

Total sponsorship came to £1,060 and we would like to thank everyone who donated so generously.

 

Wells Festival of Literature

Harris & Harris has supported the Festival for many years. This year we sponsored the talk by Somerset Artist Kate Lynch ‘A Taste of Honey’. She spoke about her new book ‘The Beekeeper and the Bee’. The audience shared her enthusiasm for the journey of the bee. Kate Lynch has produced two other books documenting Somerset’s rural industries:

‘Willow’ about willow growers and basket makers and ‘Sheep – from Lamb to Loom’ about shepherds and other people working with wool.

For more about Kate Lynch and her work see www.katelynch.co.uk

For more about the festival see http://www.wellslitfest.org.uk/index.php

Can you trust legal advice on the internet?

There are some very good resources on the internet.  For instance, I often refer people to www.acas.org.uk for information about employment law.  The internet is an easy way for an organisation to publish information to a wide audience, which can be accessed 24 hours a day.   However, as with any publication, on the internet or elsewhere, the key questions are who is producing it and why.

Some years ago, when the internet was bright and shiny, Yahoo was a market leader and I was an “early adopter” I was asked by the Internet Newsletter for Lawyers to review the largest set of forms published on the internet for consumers to use, which was being made available through Tesco.   I looked at a small selection, in an area in which I knew what I was talking about.   I was very surprised to find that several of the forms were out of date, had incorrect statements of the law and were valueless.

A lot of “free” legal resources are primarily marketing tools.  Ask yourself who is providing the service and how are they paying for it.   That doesn’t have to be simply getting you to sign up for legal services, which may well be more expensive than using a solicitor.  In many cases these won;t be provided by the name on the Homepage but contracted to third party; Saga doesn’t provide legal advice, it comes through the Sga site from Paribas. Sometimes sites like this are basically adverts for claims management companies.   For instance, Law on the Web  is ultimately owned by DAS, a large insurance company, through a company that also owns a PPI claims management business.   The business model is opaque, but appears to be based on referral fees.

Although the site says prominently that it is “featured in” the Observer, a review of its advice on Evicting Tenants in the Guardian suggested that it was both wrong and out of date.   Do you have any remedy if you follow their advice?   Have you read their small print which excludes their liability for just about everything?    Although the front of the web site shows a serious looking man who used to be a solicitor, the Terms & Conditions make it clear that “the Proprietor is not a legal advisor” and that “none of the content of the Website is intended to be taken as advice or recommendation, professional or otherwise, and should not be relied upon by you in reaching any decision or conclusion”.   That rather raises the question what you can use it for?  Answers on a postcard please.

Their documents are “fully legally approved” but they disclaim any responsibility for their use – indeed they say “our online legal guidance can be very helpful, and it is certainly worth perusing it carefully before deciding to take the extra step of seeking professional legal advice.  However, reading about the law can never compare to truly knowing the law and having the guidance of an experienced solicitor…..”.  [my emphasis]

Neil Howlett

 

 

 

The Law on Self Defence

Self Defence seems to inflame tabloid journalists and public opinion and Home Office politicians more than any other aspect of the law (apart perhaps from the Human Rights Act). This is something of a mystery to lawyers, most of whom think the law is clear and fair. There is sometimes poor decision making about when to prosecute, but more often “wrong” cases are the result of inaccurate reporting.

The basic principles of self-defence date back to medieval times, but the modern formulation was set out in in a case called Palmer v R in 1971:

“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary.”

In assessing the reasonableness of the force used the benefit of the doubt goes to the person accused. The test is; on the basis of the facts as the accused honestly believed them to be, was the use of force necessary at all, and if it was the force used reasonable? In deciding that juries are invariably reminded of the formulation of Lord Morris in Palmer;

“If there has been an attack so that self-defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken …”

That formulation has been adopted in the words of s.76 Criminal Justice and Immigration Act 2008, another bit of legislation that even the government accepted only repeated what the law already was. The Home Office always likes to be seen to be “doing something”.

Beyond that a Jury or Magistrates can take into account all the evidence in making a decision. There is no rule in law that a person must wait to be struck first, or that they must retreat. These are factors to be taken into account. The only factor defendants cannot rely upon is if they misunderstood the situation because they were drunk – imagine the injustices that could occur if they could.

Finally, if the there is sufficient evidence for the Defendant to raise Self Defence it is for the Prosecution to prove that it does not apply, “beyond reasonable doubt” (though in civil proceedings it is for the Defendant to prove it on the balance of probabilities). Before charging the CPS also have to consider whether it is in the public interest.

As an antidote to the tabloids consider the case of Mr David Summers, who burgled a flat in Peterborough. The two occupants beat him with a baseball bat, inflicting multiple injuries. They weren’t prosecuted and when he was sentence for burglary the Judge made it clear he had no sympathy for him and wasn’t going to give him any discount from his sentence because of his injuries.

Neil Howlett used to practice in Criminal Law