Weekly Notes: legal news from ICLR, 11 January 2020

Welcome back to a new legal term and a roundup of what’s been going on over the vacation period, including a Brexit deal, alleged election steal, a virus out of control, a look back at the legal year and some recent legal publications.

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They think it’s all Dover — it is now! (photo via Piqsels)

Brexit

A deal was done

After months of negotiations, on Christmas Eve the UK Government and European Union finally reached an agreement over the terms of a Trade and Cooperation Agreement. The government published a summary explainer and the European Commission published a table showing the main consequences and benefits. See also this even simpler guide tweeted by Robert Peston:

They also concluded an Agreement on Nuclear Cooperation (NCA) and an Agreement on Security Procedures for Exchanging and Protecting Classified Information.

The following week, the European Union (Future Relationship) Act 2020, enabling the UK Government to implement and ratify those agreements, was debated and passed in a single day, on 30 December, and received the Royal Assent on New Year’s Eve, just in time for “E-day” on 1 January 2021.

See also:

BBC, Brexit: MPs overwhelmingly back post-Brexit deal with EU

Hansard Society, Parliament’s role in scrutinising the UK-EU Trade and Cooperation Agreement is a farce

Obiter J, Law and Lawyers: UK government reaches agreement with the EU and subsequent posts discussing the deal,

UK Human Rights Blog, Lawpod UK podcast with Professor Catherine Barnard of Cambridge University, discussing the deal.

Professor Steve Peers, EU Law Analysis,

David Allen Green, Law and Policy Blog, various including:

US Election

Capitol crimes

On 6 January, when Congress should have been formally confirming the that Joseph Biden had been duly elected as 46th President of the USA, they were interrupted as hundreds of pro-Trump protesters invaded the building, many of them armed, apparently with a view to threatening or even injuring those engaged with the democratic process within. In so acting, they appear to have been spurred on and encouraged by a speech made by President Trump at a rally outside in which he urged his supporters to take action to “stop the steal” (of the election which he lost), saying “you’ll never take back our country with weakness — you have to show strength”. You can read the entire speech in ABC news, This is what Trump told supporters before many stormed Capitol Hill

Five people died in the violence, and a large number of the participants have since been arrested. But once the buildings had been cleared, some hours later, the proceedings were resumed and, while a number of Republican members continued to raise objections, the vote in favour of confirmation was carried by the end of the day.

See also: Obiter J, Law and Lawyers, The end game of a divisive Presidency

In SLAW, the Canadian online legal journal (Democracy is fragile. Do you feel lucky?), Shaunna Mireau writes:

“I am not sure how many Canadians felt shocked while watching events unfold in Washington D.C. on January 6, 2021. Horror definitely. Shock, perhaps not. Anxiety and sadness over evidence that democracies are fragile, absolutely. …

Watching the events at the Capitol unfold on a variety of media and social media sources last Wednesday and in days since, I saw tangible evidence of the results of the deliberate distribution and circulation of misinformation. Legal information that could be characterized as misrepresenting the law. For example, suggestions from leaders that the Vice President of the United States had something other than a ceremonial role in certifying state votes after an election. The history of the VPs role is clear.

A Washington Post article about a petition to disbar Senators Cruz and Hawley suggests that the consequences of spreading legal misinformation may be steep.”

In the light of these events, people began to discuss the possibility of removing President Trump from office, either by impeachment (again), or via the more ruthless method of a cabinet ruling under Amendment 25 of the US Constitution, enabling the Vice President to assume the powers of office on the basis the President is unfit or unable to do so. [Update: on 13 January 2021 the House of Representatives formally voted in favour of impeachment, with ten Republicans joining the Democrats in supporting the motion. See BBC, President faces Senate trial after historic second charge ]

Twitter removed the President’s account from its platform, first temporarily then permanently, after he continued to post content that disputed actuality or posited an alternative (untrue) actuality in relation to the election, in a way calculated to further inflame the belligerent mood of his supporters. Other social media platforms followed suit. There were accusations of censorship as a some Republicans witnessed (and rather surprisingly drew attention to) a sudden plummeting in the numbers of their followers after a purge of “QAnon” and other conspiracy theory social media accounts. A number of banks and businesses voiced their intention to stop supporting or donating to Republican candidates who supported Trump or repeated misinformation about the election.

See also:

David Allen Green, Law and Policy Blog,

Katharine Gelber, via Inforrm’s blog: No, Twitter is not censoring Donald Trump. Free speech is not guaranteed if it harms others

Coronavirus

New lockdown regulations

On 19 December the Prime Minister announced a new four-tier system of restrictions covering England, in the hope of reducing the rapid rising spread of a new strain of coronavirus. But after the situation continued to worsen, the government was finally persuaded of the need for a third national lockdown (ie something even more severe than Tier 4). Accordingly, yet another set of regulations was published, and guidance.

These latest regulations are The Health Protection (Coronavirus, Restrictions) (№3) and (All Tiers) (England) (Amendment) Regulations 2021 which came into force on 6 January 2021. They are number 65 in a Table of Covid-19 Lockdown Regulations which Adam Wagner has compiled. He has also done (once again) a fantastic explainer of the new rules and guidance. (If you like what he’s done, please consider donating to his fundraiser for Law Centres.)

Sadly, these latest measures were insufficient to prevent that harmless drudge, the compiler of these notes, from catching coronavirus; and, having gone for a test in a car park in Kentish Town on New Year’s Day, being rewarded 48 hours later with the unwelcome shock of a positive result.

This indisposition also explains the abnormal delay in publishing this roundup.

Tort

PI claims report

Last month the Civil Justice Council published the final report of its working group on low value personal injury claims. The report was welcomed by the outgoing Master of the Rolls, Sir Terence Etherton, who thanked the working group’s chair, Nicola Critchley, and her team for all their hard work.

The purpose of the report was to “consider and recommend what further reforms could be introduced for low value (under £25k) personal injury claims, with a view to (i) resolving meritorious claims more quickly and with the costs reduced and (ii) preventing unmeritorious claims”. In this context “unmeritorious” was said to include hopeless as well as dishonest claims.

The report makes a number of recommendations on matters such as

  • Resolving meritorious claims more quickly
  • Preventing unmeritorious claims
  • Claimant support
  • Regulation
  • Qualified One-Way Costs Shifting (QOCS)

The report draws attention to the risks associated with litigants in person (LIPs) and the risk of their making or being the target of allegations of fundamental dishonesty. They also express concern about the role of McKenzie Friends, who can assist a LIP in court but need not be qualified. The report calls for rules of court and a proper system of regulation and insurance to protect litigants.

Legal Aid

Review of criminal legal aid

A long-promised independent review into the long-term sustainability of the criminal legal aid market will be launched this month. Chaired by former judge Sir Christopher Bellamy, it “aims to ensure the legal aid sector can adapt to the changing criminal justice system, while continuing to provide high-quality advice and representation”, according to an announcement by the Ministry of Justice.

The far-reaching review will look at the criminal legal aid market in its entirety, specifically it seeks to ensure that it:

  • continues to provide high-quality legal advice and representation
  • is provided through a diverse set of practitioners
  • is appropriately funded
  • is responsive to defendant needs both now and in the future
  • contributes to the efficiency and effectiveness of the Criminal Justice System
  • is transparent
  • is resilient
  • is delivered in a way that provides value for money to the taxpayer.

The review will begin in January and report back later in the year. It will include input from a wide range of criminal defence practitioners who have been providing valuable data and insight for the Criminal Legal Aid Review.

Independent review into Criminal Legal Aid — Terms of Reference

2020 — annual reviews

Human Rights

EachOther’s Human Rights Review Of The Year 2020: Part One

EachOther’s Human Rights Review Of The Year 2020: Part Two

10 cases that defined 2020, via UK Human Rights Blog

Media law

Top 10 Defamation Cases of 2020: a selection , compiled by Suneet Sharma (via Inforrm’s blog) — Johnny Depp is at No 1.

Media and Communications List: Analysis of Claims Issued in 2020, via Inforrm’s blog

Other recent publications

George Blake (1922–2020) — and our part in his escape

Post on the Sentencing, Crime and Justice blog about the infamous Cold War traitor, who died recently, and the unsuccessful attempts in both England and Ireland to try and convict those who had helped him to escape from prison.

How could Priti Patel reintroduce the death penalty?

Post by Matthew Scott, Barristerblogger, prompted by the suggestion that the Home Secretary has asked the Civil Service to scope a policy paper on the restoration of the death penalty. In the spirit of the season of goodwill, Scott saves the civil servants the trouble of cooking their own goose by setting out all the reasons why it would be a Bad Idea, unless the UK wants to extend its exceptionalism to the point of joining Belarus as a human rights pariah.

The highways, byways and dark alleys of international law

Article by Master Christopher Greenwood, Master of Magdalene College, Cambridge and the Lent Reader at Middle Temple. It used to be said that “English law is law, foreign law is fact, international law is fiction”. In this article in Middle Templar Master Greenwood outlines the renaissance in recent decades of the International Court of Justice (of which he is a former judge) and the role of international law in domestic and international courts and tribunals.

When is a wedding not a marriage?

Post on the Law & Religion UK blog discussing research being conducted into all types of non-legally binding wedding ceremonies and what reforms might need to be made to the law on how weddings are registered and recognised as marriages under the law. The research is part of a Nuffield-funded project, led by Dr Rajnaara Akhtar, with Professor Rebecca Probert, Dr Vishal Vora, Sharon Blake and Tania Barton, and you can contribute via their own study website, When is a wedding not a marriage? Exploring non-legally binding ceremonies

Judgments as Data

Report advocating reform of the process by which written judicial decisions are created and published. In conjunction with OpenLaw NZ and NZLF International Research Fellow, Warren Forster, Brainbox researchers worked to demonstrate how advanced case law analytics can be used to enhance access to justice, as well as expedite the process of legal research.

“Our position emerged from research work alongside OpenLaw New Zealand as they develop open access legal data platforms. To facilitate these platforms, we need much better access to case law, and in digital-appropriate formats.”

Where are we with tackling fake news?

There are very few laws around fake news currently but lots of debate about their introduction, as Bryony Hurst explains in this recent post on Inforrm’s Blog. Given the lack of progress, it appears that self-regulation is likely to be replaced by legislation of some form.

Publication cases post Brexit

Two linked posts on Inforrm’s blog discuss the question of cross-border jurisdiction and conflicts of laws post-Brexit in the context of media claims:

Book review: “A Judge’s Journey” by Lord Dyson

Post on the UK Supreme Court Blog in which Zainab Hodgson, a senior associate at CMS and Ifeoma Onyearu, a law student at Kings College London, University of London, share their review on “A Judge’s Journey”, the memoir of former UK Supreme Court Justice, Lord Dyson, published by Bloomsbury in September 2019.

Dates and Deadlines

Criminal Justice: Access, Architecture, and Aspirations in a Post Covid-19 Future

Online, Tuesday, 26 January 2021–12.00pm

Webinar hosted by Cambridge Centre for Criminal Justice, University of Cambridge co-chaired by Professor Nicola Padfield and Lorna Cameron. Panelists include:

  • Lorna Cameron, Senior Lecturer in Interior Architecture, University of Lincoln
  • Dr Penny Cooper, barrister and visiting Professor, School of Law Birkbeck, University of London
  • Dr Vincent Denault, Department of Educational and Counselling Psychology, McGill University, Canada.
  • Dr Alex Jeffrey, Reader in Human Geography, Cambridge University
  • Dr Carolyn McKay, Senior Lecturer, The University of Sydney Law School,
  • Dr Emma Rowden, Senior Lecturer in Architectural History and Theory, Oxford Brookes University.

Format: The Webinar will divided into four separate discussions:

Discussion 1: Fair Access to Justice: Are ‘access to justice’ and ‘effective participation’ the same thing? How is access differentiated for individual needs of people attending court? How is this reflected in video-linked hearings where findings of fact are required?
Discussion 2: Place, Placemaking and Materiality: What makes a court? How have courthouses changed? What is a democratic model for a courthouse? What do physical court spaces provide which is missing in virtual or video linked spaces? What seem to be the pros and cons of using video linked hearings?
Discussion 3: Space, Thresholds and Interfaces: What tools do we have to understand how court spaces work? Are these virtual spaces ‘contested spaces’? Do we need design guide and protocols for the use of these spaces to assure fairness across all provision of video-linked spaces?
Final Discussion: Future Research: recommendations for future research, analysis and enquiry.

Law, Justice and the Spaces Between

An important series of free webinars investigating openness and press reporting of our courts and tribunals. The webinars have been organised by journalist Louise Tickle of the Transparency Project, and are supported by Bath Publishing. The four webinars are free, but attendees are encouraged to make a donation, which will go to Advocate (formerly Bar Pro Bono Unit). Find out more and book tickets (free) here.

1. Does being watched change how justice is done? The role and function of observers in trials, inquests, family courts and tribunals

via Zoom, 18.30–19.30, Thursday 21st January 2021

The panel will include :

  • Caoilfhionn Gallagher QC: human rights and media specialist barrister, Doughty St Chambers
  • Dr George Julian: knowledge transfer consultant and live tweeter of inquests
  • Prof Celia Kitzinger and Gill Loomes-Quinn: Open Justice Court of Protection Project
  • Lucy Reed: children barrister, St John’s Chambers, chair of The Transparency Project
  • Louise Tickle: journalist, director of Scrutiny
  • Nick Wallis: investigative journalist, the Post Office trial
  • Dr Sara Ryan: mother of Connor Sparrowhawk, campaigner Justice for Laughing Boy

2. Silence in court: what is lost — and who gains — when the state bans family members from speaking out?

via Zoom, 18.30–19.30, Thursday 4th February 2021

The panel will include :

  • Sir James Munby: immediate past President of the Family Division of the High Court
  • Emma Norton: solicitor and founder, The Centre for Military Justice
  • Paul Bernal: associate professor in information technology, intellectual property and media law, the University of East Anglia
  • Brian Farmer: reporter, PA Media
  • Mark Neary: father of Steven Neary
  • Lucy Reed: children barrister, St John’s Chambers, chair of The Transparency Project

3. In pursuit of social justice — is a hearing held in public enough to hold the state to account?

via Zoom, 18.30–19.30, Thursday 18th February 2021

The panel will include :

  • Tor Butler Cole QC: — barrister specialising in inquests and Court of Protection cases, 39 Essex St Chambers
  • Julie Doughty: trustee, The Transparency Project and senior lecturer, Cardiff Law School
  • Tristan Kirk: courts correspondent, Evening Standard
  • Mark Hanna: emeritus fellow, Department of Journalism Studies, Sheffield University
  • Marienna Pope-Weidemann: bereaved relative campaigning for #JusticeforGaia

4. The observer’s dilemma: does negotiating access with power and parties compromise independence?

via Zoom, 18.30–19.30, Thursday 4th March 2021

The panel will include :

  • Dr George Julian: knowledge transfer consultant and live tweeter of inquests
  • Mr Justice Hayden: vice-president of the Court of Protection
  • Professor Celia Kitzinger and Gill Loomes-Quinn: Open Justice Court of Protection Project
  • Lucy Reed: children barrister, St John’s Chambers and chair of The Transparency Project
  • Louise Tickle: journalist, director of Scrutiny
  • Angela Forster: mother of Sasha Forster and trustee of Sacha’s Project

And finally…

Tweet of the week

is from Benedict Evans, citing a BBC report on the extent to which the TCA (which Prof Catherine Barnard in her Lawpod UK podcast points out includes a lot “cut and pasted” from previous trade deals) contains references to obsolete technology.

That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Take care now.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

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