2 Hare Court Criminal Regulatory Group Newsletter
Welcome to the Winter edition of the 2 Hare Court Criminal Regulatory Newsletter.
Tom Day
Editor
Alison Levitt QC, James Buchanan, Grace Forbes and Hannah Thomas look to the future of regulation for the fast fashion industry. Drawing upon their experience conducting the Boohoo Review they assess the efficacy and practical consequences of the competing options in this fast developing area.
Iain Daniels considers the topic of work-related stress and the legal ramifications that flow from it; a topic of particular interest in light of the impact of the pandemic upon the working practices of most employees.
David Whittaker QC and Sophia Dower reflect on the regulation of the railways in the particular context of the fatal collision at Margam, Port Talbot in July 2019.
Finally, Grace Forbes examines the developing regulatory landscape for cannabis and cannabis-derived products
As always, we welcome feedback and suggestions for future editions. Please do forward this newsletter to any colleagues who may be interested. They will be able to subscribe to future editions themselves by clicking here.
We do hope that you find this edition of interest.
Regulating the fast fashion industry: what does the future hold?
Alison Levitt QC, James Buchanan, Grace Forbes and Hannah Thomas
On 24th September 2020 the Independent Review into the boohoo Group PLC’s[1] Leicester supply chain (‘the Boohoo Review’) was published. It was conducted by Alison Levitt QC, assisted by a team of barristers at 2 Hare Court, including James Buchanan, Grace Forbes and Hannah Thomas[2], instructed by Jason Cropper of TLT Solicitors.
The Boohoo Review was commissioned by the boohoo Group as a result of an article published by the Sunday Times on 5 July 2020, which made allegations about illegally poor working conditions in factories in Leicester supplying Boohoo and other fashion brands[3].
Allegations about Victorian working conditions and exploitative employment practices in garment factories in the fashion industry have been made for years. Many journalists and politicians considered them to be an open secret[4].
The first Fixing Fashion Report
In 2018 the Environmental Audit Committee (‘EAC’) conducted an Inquiry into the fast fashion industry, focusing on the sustainability of the industry and allegations about labour exploitation taking place within it. It published its report – Fixing Fashion: clothing consumption and sustainability – on 19 February 2019[5]. The report made various recommendations to the Government, which included:
- Publication of a list of retailers required to provide a ‘modern slavery statement’[6], to demonstrate steps taken to eradicate forced labour within the business;
- Amendment of statutes such as the Companies Act 2006 to include explicit reference to modern slavery and supply chains; and
- Strengthening the MSA so that it would require large companies to perform due diligence checks across their supply chains and ensure their materials and products are….
The increased risks of work-related stress
It will be of no surprise to anyone that in the last year work-related stress was found to be on the rise and significantly so. The HSE’s most recent figures for 2019/20[1], which incorporate the first part of the pandemic, evidence that 828,000 workers suffered from work-related stress, depression and anxiety within that period, which led to a staggering 17.9 million working days lost, a figure up over 5 million from 2018/19. Put into percentage terms, stress accounted for 51% (up from 44% in 2018/19) of all work-related ill health cases and 55% of all working days lost due to work-related ill health.
What is perhaps surprising is the HSE found little evidence that the overall increase was driven by COVID-19 in the first quarter of 2020[2]. It seems likely however that a different conclusion will be reached when the figures for 2020/21 are analysed. Nevertheless, the fact that the substantial 2019/20 increase appears not to be COVID-19 related is worrying, as it suggests that work-related stress is on the rise independent of the unique and challenging times we all find ourselves in.
The necessity for addressing work-related stress is both legal and commercial: a report published by Deloitte in January 2020[3] gave an estimate of £42-45bn per annum in lost revenue in the UK due to mental health issues, of which £27-29bn was thought to be due to presenteeism, i.e. employees attending work but being unproductive due to mental-health issues. It is notable that not only is stress the cause of the majority of days lost but, on average, the employee suffering from a stress-related illness takes longer off work.
In terms of regulation, the HSE have historically not prosecuted in respect of work-related stress but in October 2019 it announced the criteria where it would consider investigating concerns and, it must follow, prosecute if charging criteria are met. The factors the HSE intend to take into account are as follows….
The Fatal Incident
David Whittaker QC and Sophia Dower
On the morning of 3 July 2019, railway track workers Gareth Delbridge and Michael Lewis were struck and fatally injured by a passenger train at Margam East Junction on the South Wales main line. A third track worker came very close to being struck. The workers were part of a group of six staff undertaking a maintenance task on a set of points on the line. The train driver applied the emergency break nine seconds before the collision and continued to sound the train’s horn as it approached the three track workers. It was travelling at approximately 50mph when it struck Mr Delbridge and Mr Lewis, causing them fatal injuries.
The RAIB Investigation and Report
The fatal incident was investigated by the Rail Accident Investigation Branch[1] (RAIB), an independent body responsible for the investigation of railway accidents and improving safety. On 12 November 2020, the RAIB published a detailed report which considered the events preceding the collision and identified the immediate cause and other factors relevant to why the collision occurred.
The report identified the following key causal factors:
- The track workers were on a line that was open to traffic while carrying out a maintenance activity which they did not appreciate was unnecessary.
- They were working without the presence of formally appointed touch and distant lookouts to warn them of approaching trains.
- The three track workers did not see or hear any warning of the train’s approach. They were using a noisy machine and almost certainly wearing ear defenders.
- There was no challenge to the way the work was being done, likely due to the dynamics within the group. The group acted in a way that was not compliant with the rules which went unchallenged within the team.
The report went on to identify a number of other underlying factors relevant to Network Rail, including….
Developments in the Cannabis Regulatory Field
A Shifting Landscape
The cultural and legal landscape for cannabis has shifted significantly in recent years. Many changes have been highly visible, such as the proliferation of cannabidiol (CBD) products on the high street and the legal change that allowed medicinal cannabis to be prescribed for the first time in the UK from 1 November 2018[1]. In November 2020 the Court of Justice of the EU ruled that CBD is “not a narcotic” in a much anticipated ruling in the case of Kanavape[2], a stance that had already been taken in the UK[3] and one which was adopted soon after by the UN[4].
Inevitably, the process has been a piece-by-piece transition, rather than a neatly packaged suite of legal changes. Those involved in this industry, whether it be through medical prescription and research, production of CBD products or financial investment in legal cannabis ventures face an uncertain legal landscape.
The Role for Regulation
Effective regulation in the industry has an important role to play. Far from being rejected as red tape liable to stifle growth, a clear and effective regulatory framework is seen by many as vital to its growth and development.
Firstly, it has the potential to provide much needed certainty in a legally unclear area. Although in 2018 a medical exception was carved out of the legal prohibition on cannabis, it is still an uphill battle for patients to gain access and very few NHS prescriptions have been written to date[5]. Proper regulatory tramlines could help bring clarity and security to doctors making prescription decisions and, in turn, could be lifechanging for patients seeking treatment for conditions such as epilepsy.
Secondly, regulation may play a critical role in addressing the stigma attached to cannabis. Cannabis has been unambiguously illegal in the UK for almost a century. Possession with intent to supply can attract a sentence of up to 14 years. However, in recent years it has become clear that that stigma need not necessarily attach to the whole cannabis plant in such black and white terms[6]. Inevitably, the path for cannabis from a blanket classification as an illegal narcotic to a more nuanced position will not be easy. A robust and comprehensive regulatory framework has an important role to play in guiding public perception and ensuring that….
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