Legal Action Magazine May edition highlights with David Renton, David Cowan and Louise Heath.

David Renton of Garden Court chambers, discusses  his column about employment law and P&O Ferry's. He'll also be asking if legal action is all it's cracked up to be.  Professor David Cowan of the University of Bristol  takes us through his mortgage and owner occupier law update in the magazine.  Legal Action magazine's editor Louise Heath, shares highlights from the May edition. 

Transcript

Hello everybody and welcome to this legal action group podcast. My name is Simon Mullins and coming up in this May edition of the podcast we have an author of legal action titled jobs and homes, David Renton of Garden Court chambers, and he'll be talking about his column about employment law and P&O Ferry's. He'll also be asking if legal action is all it's cracked up to be. Happily when he says legal action he means legal action not the Legal Action Group we all know and love.


Then we will have Professor David Cowan of the University of Bristol and he will be taking us through his mortgage and owner occupier law update in Mays legal action magazine. Happy to say that throughout this podcast we will hear from legal action magazine's editor Louise Heath, and she'll take us through the contents of Mays magazine. So let's now go to our first segment from Louise.


Hello, this is Louise legal action editor and I'm going to run you through the content for the May issue of the magazine. So if I start with news and comment, we've got two really interesting comment pieces, the first by Janet Ferrell from bat Murphy. She talks about the government plans to remove asylum seekers to Rwanda, and how this is problematic in every possible way. Then we have David Renton from Garden Court, who also wrote lags book jobs and homes talking about the p&i fairies, mass sacking and what this says about the enforceability of UK employment laws. We also have an interesting piece on reform of legislation on disclosure of convictions in Northern Ireland by Les Allenby, and a tribute to Matt Matthews from Hackney Community Law Center, who sadly died in April. And that's written by Sean canning.


Thank you to Louise there, and we will hear from her a little later in the podcast. Let's move now to our conversation with David Renton of Garden Court chambers. So David, you have a piece in the May edition of legal action magazine title is employment laws, how do we make them stick? So while the notorious events that you're writing about will be familiar to people, can you in any event, just set those out for us to start with the assignment? Well, the hook for the piece is the piano ferry story, which goes back to March of this year, when essentially 800 people working for piano were all dismissed by their employer, there was a huge fuss. MP spoke out against Boris Johnson promised that the government would do every authentic could I think the part of the story which stuck in people's minds was essentially just this that whenever people from piano were put in front of the journalist who said we admit it, we broken the law. We did it deliberately. We knew that we're supposed to consult and we didn't consult, we just sacked everyone on the spot. So what that pose and I think there are more things you can say about it. But what it posed was essentially, how can employers get away with knowingly breaking the law and expressly breaking the law? And as you say, they would take rocking up and saying, Yeah, we know we're supposed to do it. I mean, is there a sense in which in doing that they have drawn aside the curtain on on something which we all knew really, which was that is an absolute moral vacuum in the way in which business is done? I think


that's right. But then I've talked in a lot of different places about the difference between housing and employment law. I'm always struck by the way in which you know, I'm to choose a metaphor it's not it's not it's not from this from something else. I remember when I started off as a barista someone had written in one of the how to be a barrister. So criminal, barrister, I said, Look, I did defense, I did prosecution. What's the difference is, if you're if you're a prosecution lawyer in court in Britain, being prosecuted is like being on a bicycle going down a hill. Just everything is easier. If you switch as someone like I do regularly from being representing tenants and house into representing workers in employment law, it's striking that just the whole unspoken Nexus is completely different than in housing. If someone's evicted from their home, you're bringing an unlawful eviction case you go before a judge, the judge his initial reaction is to think right, what can I do? do kind of get an injunction kind of get that person into the home. And employment law is different. in different places, you can go through lots of statistics, whether it's, you know, only 50% chance of winning your case. It's a only one in 1000 chance of getting reinstatement per every successful, unfair dismissal case. It's the very low remedies. It's a difficult to enforce. And all these different things. I don't I don't go into too much detail. The piece does that. Say there is a problem in employment law. And it's different from just the phenomenal against to make the comparisons as we all know, there are landlords out there who just dodge everything they can. Yeah, and it's different in employment. That's not the problem. The problem is actually how we've assembled our remedies. What we prioritize and what what we what we won't let the Lord do


is your as it were mini thesis here that the law is supposed to have an effect in individual cases, I, you know, provide remedies for individuals in disputes, but also should have a kind of supervisory effect, ie bad employers, bad landlords ought to be scared of doing bad things, because there'll be consequences. Yeah,


yeah, it's the absence of the latter. But far too much pressure is put on the individual to litigate this. There's no equivalence, for example, getting housing, we're all used to the context of say, a local authorities got powers to prosecute a band landlord, that doesn't make repairs. And just the sheer fact that that exists, helps. Even if it's not used that much, it just helps, even things out of it. And there's no equivalent of that in employment, everything's put on the individual. And just again, I don't really want to go into it, because it would do, I think we've got 10 minutes, and I'd be an hour. Lots of lots of different things about you know, for example, how damages are calculated, you start off with what work is actually lost. And you have to make so many different deductions to it, that even some of the wins is invariably looking at the third quarter of what their actual losses, and there are lots of other things about that was just re tilted away from workers regulate, regulate, regulate.


So as I understand it, and let me know if I'm wrong here, then that your analysis is that piano, but not just not just piano, other employers as well can take a sort of commercial view of things and say, well, a little bit of law breaking isn't going to be that expensive to us compared to the compared to what we can get out of it. In my


piece, I make that point. And I give one or two illustrations of it. But you know, in a nother life before I was embarrassed, I was a I was a caseworker for Law Center. Before that I was a trade union official for a few years, when I was a caseworker. There were things that I just remember as part of my ordinary practice and employment or just happening the whole time, you know, taking on workers dismissing them, the work isn't going, what's my remedy? If the what does everyone do? Sorry. Just just employers take on workers plainly from the start with absolutely no intention of paying them. And there's just this general feeling that, you know, it's a bit like taxes, you know, that that who's that American millionaire, who's, who said about 15 years ago that taxes, only little people pay taxes, they know that it's quite legitimate for a very large number of employers to essentially have opted themselves out of the whole system of regulation.


So what's to be done, David, I'm aware that you have a forthcoming book I think is going to be out in in July. We're looking forward to that. Now, this book is called nicely cunningly. It's called against the law, why justice requires fewer laws and a smaller state, many people will be surprised that a barrister is saying, well, let's have a few laws. And many people might be surprised that somebody on the left of politics is talking about a smaller state, when that's often thought to be a sort of conservative principle, what's going on Mr. What's happening


here, but let me do the law first, and the state after just on law. One, the example one of the two key stories, which is kind of interwoven through my book is what happened to employment law. Now, I'm pretty old. Now. I'm 49 years old. So I'm old enough to remember when things were done differently. It's not that long ago, where the majority of time if people had complaints about the workplace situation, the primary place to mark was with trade unions, and primary mechanism they'd had for taking things up to return to you this was going on strike now. We have lots of good things or lots of bad things to say about the 1970s. And all this happened over six years or whenever. But the point is, for example, if you look at the number of people who are dismissed in the 1960s, went to internal appeals committees, and then got their job back because of the background context of strong trade unions. Every bit of research says essentially, if you were sacked and your complaint that appealed your chances of getting your job that were about one in three. Right. And I cited the figure out from the tribunal, we now have this huge regulatory state theory reinstated as the primary remedy for dismissal. The practical reality is even if you win your unfair dismissal case, it's going to work One in 1000. So that that process of the individualization and the legalization of employment disputes has been bad for workers in the workplace. Now, with the state with the state, it's a bit different. What I'm trying to say is that if you actually start as a historian or some interesting political ideas, trying to work out why we've had this huge expansion of regulation in the last 30 years, an awful lot of things aren't actually things which, which people would particularly want or have encouraged, ya know, like, the vast expansion of immigration law is sure as hell not good for migrants, rather than anyone else. And you can go through this and lots of different areas law. So you know, actually, it's smaller state, if it's small, if a smaller legal system, but different kinds of legal system is in the interests of, you know, dispossess people actually can start, imagine what that would mean to the state and the state, which had a lot less law. They have very different kinds of state to. Yeah.


Well, that I mean, that just seems to be really fascinating, because going back to your article and the piano case, clearly piano are quite happy to sidestep the law, and even turn up to Parliament and say, That's exactly what they're doing as though the commercial imperative hadass had a sort of primacy over over the rule of law. It's like, well, of course, we broke the law, because it was commercially kind of, you know, expedient for us to do. So of course, we did that. Are you arguing for a sort of commensurate, not abandonment, but a commensurate taking up of other tactics and legal action to counter that? Are you talking about something a bit more profound than that?


Yeah. One of the things I talk about at various points is what it means the social movements to choose to orient away from the law. Yeah, you know, so, for example, in that example, to a bit about my book is 2003, when the Iraq War happened, I remember how incredibly popular and successful the slogan was. And once all sorts of people, this isn't a legal war. And it's actually about saying, Would we've actually mobilized even more people if we'd not particularly fussed about whether the war was legal or illegal? Simply concentrate on building our own resources, building our own number? So there's such a point. Wonder democracy, there's no, there's no choice? We are. So clearly the majority, this war has to stop. And okay, that, you know, the politics that work out a certain way in 2003. But that essential question is constantly repeating and the place where plainly it's going to be repeating most clearly, next 10 to 15 years is an environmental law. Yeah, essentially, we do not have I mean, Simon, I'm sure you've once or twice or more than once or twice in your working career, try try to bring a nuisance case. You know, that bloody tort can do? Only thing in all our legal armory for fighting a company which pollutes? And to my mind that actually it's a really intense question is should we number one, be thinking right? What we need to have system environmental tribunals, judges, green judges, whose job is to take businesses of the companies which blue? Number two, should we be thinking about a movement, kind of like that? So unmodeled movements to try to do something equivalent through the streets? And I'm not particularly trying to say to people, the answer is all got to be number two. But what I am saying is, you've got to know that options out there. Yeah, you got to confront that dilemma. You got to think about what you're doing. Because on those sorts of decisions, you know, the fates of millions of people can arrest? Yeah, one of the things I'm trying to explain in that book is, for example, has anyone noticed that all these politicians get elected promised shrunk the state actually deliver a massively expanded state? We've never had lawmaking at the rate that we have it now. We've never had the speed or the nature, we had it under COVID, where hundreds of rules were being made not even by Parliament, but just by the executive with with no scrutiny whatsoever. And how do we how do we like first noticed that dynamics going ahead? Yeah. And then how do we try and say, well, we want this to deliver good outcomes rather than bad outcome.


Yeah. Listeners, if if any of you read David's work, then you'll automatically be really looking forward to the to the book, if you haven't, I can just heartily recommend David's writing in general, but particularly his writing on these sorts of philosophical aspects on law and society and politics. I had the pleasure of talking to David about his book jobs and houses and I just could not recommend that to people enough. It's it's an absolutely cracking book published by lag, still get it on the website or through books docket. So do look that out. So just coming back to the article, then can I just ask because I'm fairly ignorant about some of these things. Is the p&l case a real kind of milestone or is it just a kind of something that's become public because it just happened in in a particular moment? You know, other precedents? Yes. You know, there are


precedents in the sense of employers can be worth breaking the law the whole time. It feels like it summarizes everything that's gone before. The one thing, which is interesting, and which we're all going to wonder about is that, although in general, when employers fail to deliver on redundancy, the main remedies that individual employees take them to the tribunal. And although that's available, the one thing that legally makes piano interesting is the government has given as clear a steer as it could towards the insolvency service, and they want to see managers from peers be prosecuted. And so there's at least, for the moment, open the possibility that you could see the state playing that supervisory role, which it hasn't played in for a very long time, but But honestly, does play and has, and it is going to be interesting to see what happens whether a decision is actually taken to prosecute or not. And given how much ministers were saying, this is definitely going to happen. He's definitely robes, it's not gonna happen on our watch. If, you know, in two months, something okay, he decided not to do it, I think that's gonna be a bit of a moment, you're gonna say, Wait a second, you promise as clearly as you could, that might have some interesting effects, or organic if they did actually prosecute, that too, would be something different from what we've seen in Poland in quite a long


time. Again, that really is fascinating. I mean, if there's no prosecution, then the outrage of the government is clearly conflicted.


All my instincts are that there isn't going to be a prosecution. And we're gonna be looking at it and saying, oh, you know, another Boris Johnson broken promises if anyone's still counting. But I don't give them there is still a process going on? I think. Let's give it a bit of time and see what actually happens.


Listen to the article is absolutely fascinating. And if at all interested in any of these issues, and the article is an absolute must read. David, thank you so much for coming to speak to us on the legal action podcast. Thanks again. Cheers.


Thank you, Simon.


Well, fascinating from David Renton as always there, but now, editor Louise, please tell us more about Mays legal action magazine.


leading on to opinion and analysis. We have a feature by Chris Mynach from the legal aid practitioners group, setting out very eloquently his reservations with the early legal advice pilot, Sue James lag. Sue James then looks at lags work on legal aid for the 50th anniversary article. She looks at a bit of lag, history, and legal aid history and then looks really to other jurisdictions for innovative Legal Aid solutions. Ie French and Silvia Nicolau. Garcia, two lawyers from Simpson Miller, then examine two recent positive developments for victims of trafficking. It's always nice to be able to report something positive in our world. So that's a really useful article. Roger Smith, X lag director then reports on the US legal services Corporation's innovations in technology conference. And finally our law and practice section. We have an immigration update from Joe aid look Marnie on the copious statements of changes and policy updates. We have Jonathan Wilson from mental health law online, updating readers on mental health case law, Katherine Castley, and Douglas Johnson update on discrimination. We have Dave Cowen doing the regular the yearly review of owner occupation, and of course our regular housing a recent developments article by Sam MadWorld and Yan Luber QC. We also have a short and sweet article by Amelia Freeman on local authorities and prescribed information. And then we have the mental health focus article written by mind authors Rhian Davies and Alice Livermore, who examined Chinese law, the mental health units use of force act 18. They analyze the new law and they also conduct a really interesting interview with Chinese mother, Angie Lewis, about how she became a lawmaker and what she expects from the act 12 years after Shamy her son was killed. Then finally we've got Public Law Project discussing a new report which highlights how unfair and inflexible the Universal Credit overpayment deduction the system is.


Thanks very much, Louise. So listeners We move now to David Cowen. And I'm very pleased to say that David joins us on the podcast to talk about his column in Mays legal action magazine, which is an owner occupiers update, first of all, welcome, David. Very nice to see you.


Thanks very much. Good to see you too, son.


And the owner occupiers update broadly splits into into two sub sections one is an update Some procedural and other information matters. And the other section is on the case law. So starting with the procedural and other matters, can you give a brief outline of just some of the topics that you write about in this month's magazine?


So falls into three parts Simon. The first part is around Coronavirus and the ongoing effects on possession proceedings and the housing market and mortgage statistics that as a result of that second part is is really around government policy and legislation forthcoming on leasehold reform, shared ownership and there are the awkward housing elements of the leveling up process. And the third part is about mortgage prisoners. Yeah, an important issue. It affects a relatively small number of households around 195,000 households. But it affects them really significantly. And they have a large policy voice in the sense that there's an all party parliamentary group, various effects of that on the policy, hm. Treasury and the Financial Conduct Authority as well. The thing about the mortgage prisoners is this, that we're a bit stuck, we don't know what to do with them. And they come about because of the impact effects of the financial crisis in 2008, the government taking over mortgage lenders and then selling off the loan books to unregulated providers. So this is a government caused problem for these households.


It seems remarkable that that happened. How on earth did that happen? It just wasn't noted.


You could put it like this, the government took a commercial decision to sell off parts of the loan book at particular moments in time, t's affected households can't get out of their mortgages. They can't switch mortgages in a situation, post GFC, where the Financial Conduct Authority is really clear about lending criteria. Yeah, yeah, these people are really, really affected. And as a result, they're paying incredibly high interest rates. Yeah, at a time when we're still incredibly low interest rates.


Yeah. And I guess the the significance of that is that these are people who it's not only that the market is not working for for them. In fact, they're just completely excluded from the market and any any ability to exercise any sort of consumer choice really.


Absolutely. Yeah, absolutely. Almost equivalent, as are those people who are affected by the fire safety issues in leasehold,


thanks for that, David, I think some very important important part of your article and I note that you very helpfully give us further reading on that to try and understand the issue in a bit more depth. So in true


academic fashion, as always, further reading,

 
always the footnote was always there, David, where are we with Coronavirus, possession proceedings in in mortgage cases, where are we procedurally


not much has in fact, changed with mortgage cases what we have is a sense of almost a phony period of phone, I don't want to say a phony war because that because that would be wrong to phony period in which it seems to me that mortgage lenders are offering perhaps forbearance and being more willing to be flexible than they were perhaps pre pandemic. And so that's why you're seeing fewer cases come to court, the view of UK finance seems to be that because lenders have adopted much more stringent approaches to affordability post GFC. That's why there are fewer people in arrears. Personally, I don't buy that or my real concern, actually, is that whilst an awful lot was being done for those in rented housing, very little is being done for people in mortgage housing, and to use that expression Winter's coming, how are people going to afford their mortgages by fear that as a duty advisor, Simon, you're going to see a lot more of these cases as the year progresses, you would think that by the end of this calendar year, there issues are going to present themselves, and I think they're going to present themselves very much at the low cost of homeownership. And so for me, I think there's going to be many more shared ownership type cases which raise their own issues. And I think there's going to be some interesting developments in the law there. But we shouldn't, of course, forget that these are real people who are having really, really, really tough times.


Yeah. Okay, so further cases in your article, David, they're all fascinating, but the ones that I'm more interested in mainly because I don't know enough about it. Other ones aren't constructive trusts and proprietary estoppel. I wonder if you might say something about those.


Thank you. So I'm really glad that you picked up on that, because I'm a land lawyer primarily, and a housing lawyer as well. And these cases, I think, are really, really important because they affect so many, and probably a lot of cases you are, or at least some cases that you get on the duty desk, where people come along and say, but the landlord promised me that I could stay there forever, or there's a family relationship or something like that, or somebody is trying to get a former partner out of a property as a trespasser. These cases are really important. And there have been significant developments in the highest court in these areas. They are different constructive trusts and proprietary estoppel. And I'm not going to go into how you can demonstrate the interest or anything like that.


We've made a whole series of


my students are taking their exams next week. So I'm not gonna say anything. But one of the really interesting things about this area is that there are so many uncertainties left now, on proprietress, stop, although the way in which established the interest is relatively clear now, assurance, detrimental reliance, the real issues have been how to satisfy the equity and the courts are in a degree of disarray on that front. So the Supreme Court is about to pronounce in guest and guest and we're waiting for that. And that is likely to completely change the area, at least in the way in which we might now think about it. So it is definitely one to watch. And think about how it might affect not only cases where the issues raised explicitly, but also in your everyday possession list. In terms of constructive trusts, again, we are we are in a period of development, we still don't really know what the criteria are to establish an interest. Now we know there's a common intention and detriment. But the nature of the common intention is less. And in a couple of the cases that I deal with in the column, one of the cases is about whether one control the principles into commercial type situations, which seems to me to be problematic, I think, in the sense that one's during a binary between commercial and domestic. And I don't think that binary necessarily exists. And in another case, we should be very controversial on Twitter amongst landlord teachers, a Hudson and halfway that there's a question about whether one needs to demonstrate detriment on remedy. I think what I'm trying to do here is just demonstrate to you and to your listeners, that this is an area which is absolutely in flux, but is critical, not just in places where it's pleaded. But in cases that you will see in your lists.


Absolutely. Well, I'm certainly going to scour your article for the detail here, because these are, as you say, murky cases that do arise, they arise on duty, but they arise in our general caseload. And without these tools, I think without the understanding, it's very difficult, I think, to give full and proper advice. So I think you've done a great service in highlighting this in the article and and generally,


I just say one thing before we finish, and that is to say that I took over the column from Derek McConnell and I should pay tribute to the amazing work that Derek has done over the years. You know, he is a legend in the field.


Well, I would like to second that I know that you're stepping up to the plate to take over Derek's column is was really, really warmly welcomed as well. So yeah, welcome to the hot seat. I thank you very much for your time, David, for talking to us on the podcast. Thanks very much, David. Thank you.