Judicial training, unconstitutional Brexit, and NDA reform: your letters to the editor

Judicial training now equal

In relation to your article ‘"Must everything be smashed to bits?”: Fury as judicial training days scrapped’ (6 March), I would like to make clear the reality from the perspective of the Judicial College.  

As a result of the Miller/O’Brien litigation, discussions began within the Judicial College some years ago about how best to address differences in the training regimes between salaried and fee‐paid courts judges. A fee‐paid judge with a single ‘ticket’ or authorisation, for example, would attend a two‐day residential training seminar only once every three years, whereas a salaried judge would attend such a seminar every year. The college consulted extensively before finalising the new arrangements. 

The annual one‐day circuit criminal seminars are relatively expensive and benefit only criminal judges. With effect from 1 April 2019, by the reallocation of the costs of the circuit criminal seminars and some other expenses and resources, and by altering the size and numbers of some seminars, the college is in a position to provide to each judge, salaried or fee‐paid, one two‐day residential training seminar each year (an example of which is a two‐day sentencing seminar, providing a greater and more collegiate opportunity to learn than the one‐day circuit seminar provided).  

Those judges who have five or more ‘tickets’, and some with particular specialisations, are entitled to attend additional training seminars. 

While some people may be unhappy at their disappearance, the consequence of the withdrawal of the circuit criminal seminars is, in fact, a greater provision of training for courts judges, salaried and fee‐paid, and across all jurisdictions – family, civil and crime. The inequality in provision of training referred to above has also now disappeared. As before, online courses and materials are available to all judges and are increasing in number, but not at the expense of face‐to‐face training. 

His Honour Judge Andrew Hatton
Director of training for courts and joint dean of the faculty of the Judicial College, London WC2

Brexit is unconstitutional 

The profession will be pleased to read about the efforts being made on their behalf in the confusing negotiations around Brexit. But I suggest that the Law Society and Bar Council have an unusual duty now thrust upon them to comment upon the constitutional and legal issues which have been exposed by the government. I am aware of the fact that lawyers are generally expected to implement the decisions of the government, but the current situation is exceptional and threatens our parliamentary constitution.

As far as I am aware, no attempt has been made to explain that the concept of Brexit as enunciated by the prime minister is unconstitutional and requires implementation by unlawful actions and measures. Under our convention of cabinet responsibility, cabinet members are effectively complicit in support of her statements and actions. The rights of UK citizens are not being properly protected. For example, France has made it clear that the present reciprocal rights for healthcare will not be preserved. The Supreme Court clearly stated that it had not been asked to pronounce on the legality of the Brexit venture. Academic opinion on the weight to be placed on the outcome of the referendum is not clear. Proceeding as if the legal problems can be brushed aside – constitutional irregularity, contempt of parliament, whipping MPs to support the government in its unlawful actions, clear acts of negligence in securing services to deal with a no-deal scenario and other actions perceived by constitutional law experts – should be exposed and stopped.

The Queen’s constitutional position is being abused and the UK’s prestige badly damaged. The Law Society and Bar Council should play a part in exposing these improprieties as relentlessly as Scottish MPs in Westminster are doing in relation to government mishandling of the contracts for port and ferry support.

Michael Loup
Neustadt, Germany

NDA reform charade

In my previous letter, ‘Full disclosure on NDAs (Feedback, 5 November 2018), I questioned the need for change and was pessimistic about the prospects for the government’s then threatened reforms of non-disclosure agreements (NDAs). The ‘something must be done’ brigade finally got their way and the consultation paper seeking views on proposals to ‘improve’ the regulation of confidentiality clauses was published on 4 March. As feared, its contents fail to gladden the heart. 

There are three main proposals: to clarify the law so it is clear that people cannot be prevented from reporting a crime to the police (arguably they never were); extending the requirement for independent legal advice to cover the limits of any confidentiality clause being signed-up to in a settlement agreement (any thorough lawyer advising on an agreement would already do so); and requiring clauses to clearly set out their limitations, either in settlement agreements or as part of a written statement of particulars, so workers know the rights they have when they have signed one (it is already standard practice to draft carve-outs for whistleblowing and other exclusions in settlement agreements so it is unlikely this will add much) .  

The proposals seem designed to solve problems which never really existed, or which only apply to a handful of extreme cases which have recently attracted media interest. These bear no resemblance to the day-to-day cases encountered by most employment lawyers.  

Commentators agree that these proposals are not going to change workplace culture. It may be good PR for the government to be seen to be dealing with the ‘unethical misuse of non-disclosure agreements’ but the extra, meaningless bureaucracy they seek to introduce is likely to have unintended consequences – such as lawyers charging more for their advice on settlement agreements. The worst-case scenario is that by seeking to curb the use of confidentiality clauses, the government will discourage employers from offering settlements in scenarios where discrimination or harassment has been alleged and disputes which would have never previously reached the courts and tribunals start to overload an already strained system. 

Let us hope that these proposals, once implemented, do not prove to be a case of ‘careful what you wish for’.

Ben Power
Senior partner, Springhouse Solicitors, Chichester