Weekly Notes: legal news from ICLR, 11 November 2022

This week’s roundup of legal news includes politics, social media, and inquiries; a literary judge; and some recent case law and commentary.

PM decides not to give Egypt the hump. Photo by Thais Cordeiro, via Pexels

Politics

Climate of chaos

Having initially said he wouldn’t, the Prime Minister decided after all to join all the other heads of state parading their green credentials at the COP27 climate conference in Sharm el-Sheikh in Egypt. What changed his mind? Having said he had too much to do already, fixing all the UK’s many problems, he seems to have decided to distract his own and everyone else’s attention from those problems by focusing on the more global issue of the Climate Emergency. Questions include whose fault it is, who bears the brunt of it, and who should pay to make it better. As with domestic problems, what should happen is not necessarily what will actually happen.

Meanwhile, back in the UK, the problems Sunak has temporarily left behind include misbehaving ministers, a falling pound, and the need to maintain a fragile balance of resentment between various factions of his own party. Having reappointed Dominic Raab to the Ministry of Justice he seems to have agreed to let him proceed with his Bill of Rights Bill (BORB) as we anticipated last week. Joshua Rozenberg seems sceptical of Raab’s ability to get the Bill through Parliament in its current form, following its “mauling” by commentators ranging from academics to former law lords, and explains in a recent post on A Lawyer Writes why Sunak may have misunderstood a particular benefit of the Bill with respect to avoiding judicial review challenges to the Government’s widely discredited Rwanda rendition plan for processing asylum seekers: see Bill of Rights Bill Bounces back?

Such legal obstacles have not dented the enthusiasm of the Home Secretary, Suella Braverman QC, for the policy, though she faces challenges in other areas as well and her reappointment continues to prompt questions about Sunak’s judgement. As does his appointment of Gavin Williamson as Minister Without Portfolio (soon to be Without Position).

In less controversial government appointment news, the legal profession generally welcomed the choice of Victoria Prentis as the new Attorney General. She was previously Minister of State at the Department for Work and Pensions. Other past roles have included serving on the Justice Select Committee from 2015 to 2019, the Joint Committee on Statutory Instruments from 2015 to 2017, and as Parliamentary Private Secretary to the Attorney General from 2019 to 2020.

Michael Tomlinson MP has been reappointed as Solicitor General for England and Wales.

Further reading:

Judiciary

His Honour Peter Murphy

The memorial service was held in Temple Church last week for the late Peter Murphy, who died in July. He seems to have led a very full and varied life, as tributes by his brother, son, and fellow Middle Templar Richard Wilmot-Smith KC variously attested.

Murphy studied law at Cambridge, where he was a contemporary of Baroness Hale of Richmond, before being called to the Bar in Middle Temple. After some years practice he took up teaching at the Inns of Court School of Law and wrote a leading textbook, Murphy on Evidence. Later he was the founding editor of Blackstone’s Criminal Practice, an upstart rival to the venerable Archbold, and later still, a string of novels (most of which we have reviewed on the ICLR blog). In between he spent time in America, qualifying for the Bar and teaching in South Texas School of Law, followed by a stint as defence counsel in war crimes trials at the International Tribunal for the Former Yugoslavia at The Hague, before being appointed to the Circuit Bench in England and serving for some years as the resident judge at Peterborough. An obituary in The Times identifies his most cited decision, when sitting in the Crown Court, concerning the right of a Muslim woman to wear a niqab in court: R v D (R) [2013] EW Misc 13 (CC).

Inquiries

UK Covid-19 Inquiry

This week the UK Covid-19 Inquiry chaired by Baroness Heather Hallett opened its third investigation, which considers the impact of the Covid-19 pandemic on healthcare in England, Wales, Scotland and Northern Ireland. It will look at how the healthcare systems responded, the impact on systems and services, including on patients, doctors, nurses and other healthcare staff.

The inquiry’s terms of reference include a range of other matters, one of which is “legislative and regulatory control and enforcement”. That might cover the suitability and appropriateness of the flood tide of regulations restricting human contact and activities made in response to the health emergency of the pandemic. While most people accepted the need for lockdown and the need for regulations to police it, there was a considerable amount of opposition to their form, frequency and fanatical enforcement.

One person who managed to keep on top of the rapidly changing regulations was human rights barrister Adam Wagner, whose unenviable expertise in this area took the form of numerous blogs, podcasts, and interviews with the media at the time. His accumulated knowledge and expertise have now been distilled into a book, Emergency State, which was reviewed by the police blogger Nightjack in a guest post on the Law and Policy Blog.

Social media

Twexit

There has been what David Allen Green called a “Lexodus” of UK legal Twitterati to the not-so-new federated platform Mastodon over the last week or so, as Twitter struggles under its impetuous and imperious new ownership.

ICLR will not be leaving Twitter just yet — or Facebook, another platform whose relevancy for serious debate may be questioned — but we may devote less time to maintaining our presence there as we cultivate a new presence on Mastodon: https://legal.social/web/@ICLR. You can also follow our blog editor Paul Magrath at https://mas.to/@Maggotlaw.

Other recent stuff

L and Non-L

In which Elijah Granet on his Legal Style blog compares the particular way lawyers talk amongst themselves, in a way that might be expected to exclude non-lawyers, to the microaggressive distinctions between ‘u’ and ‘non-u’ sociolects as dissected by romantic novelist Nancy Mitford in the 1950s. Thus Sir Edward Coke’s surname actually rhymes with one’s servant in the kitchen, and no one learned in the law would now dream of calling a justice of the peace “Your Worship” or a High Court judge “M’lud”.

Reporting of financial remedies cases in family courts

Barrister Godwin Busuttil of 5RB chambers has written an article on “The law governing the reporting of financial remedy proceedings in the family courts: where are we?” which is available to read on Inforrm in two parts, here and here.

Campaigning and political activity by charities: guidance

The Law & Religion UK blog reports that on 7 November 2022 the Charity Commission issued updated guidance for England and Wales on Campaigning and political activity by charities. The Commission has also updated its guidance on Charities, Elections and Referendums.

Lords Committee expresses significant concerns about UK-Rwanda asylum arrangement

In a report published last month, the International Agreements Committee questioned the use of an MoU, rather than a formal treaty, as a vehicle for the relocation of asylum seekers deemed to have arrived illegally in the UK. This is because MoUs are not legally binding. Consequently, the safeguards set out in the UK-Rwanda MoU for relocated individuals are not legally enforceable — neither the individuals themselves nor the UK Government can ensure the rights of those affected are protected once they have been transferred to Rwanda.

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

CHILDREN — Custody rights — Habitual residence: In re X (A Child), 01 Nov 2022 [2022] EWCA Civ 1423; [2022] WLR(D) 428, CA

CONFLICT OF LAWS — Foreign judgment — Enforcement: Moss v Martin, 04 Nov 2022 [2022] EWHC 2788 (Comm); [2022] WLR(D) 436, Ch D

CONTRACT — Construction — Force majeure clause: MUR Shipping BV v RTI Ltd, 27 Oct 2022 [2022] EWCA Civ 1406; [2022] WLR(D) 427, CA

CRIME — Identity document — Possessing false document: R v Elmi (Abdihakim), 02 Nov 2022 [2022] EWCA Crim 1428; [2022] WLR(D) 429, CA

ECCLESIASTICAL LAW — Faculty — Burial ground: In re All Saints, Pontefract, 28 Oct 2022 [2022] ECC Lee 6; [2022] WLR(D) 434, Const Ct

EXTRADITION — European arrest warrant — Habeas corpus: Malik v Governor of HMP Hindley (No 3), 01 Nov 2022 [2022] EWHC 2737 (Admin); [2022] WLR(D) 430, KBD

IMMIGRATION — Special Immigration Appeals Commission — Appeal: Smith v Secretary of State for the Home Department, 02 Nov 2022 [2022] EWCA Civ 1445; [2022] WLR(D) 426, CA

MARRIAGE — Divorce — Foreign decree, recognition of: Parveen v Hussain, 04 Nov 2022 [2022] EWCA Civ 1434; [2022] WLR(D) 431, CA

PLANNING — Gipsies and travellers — Planning policy: Smith v Secretary of State for Housing, Communities and Local Government, 31 Oct 2022 [2022] EWCA Civ 1391; [2022] WLR(D) 422, CA

REVENUE — Corporation tax — Capital allowances: Cobalt Data Centre 2 LLP v Revenue and Customs Comrs, 31 Oct 2022 [2022] EWCA Civ 1422; [2022] WLR(D) 435, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

Nearly Legal: HMOs, overcrowding standards and reasonableness of accommodation: Rowe v Haringey London Borough Council [2022] EWCA Civ 1370; [2022] WLR(D) 413, CA

RPC Perspectives: Lien won’t circumvent disclosure obligations: Ellis v John Hodge Solicitors [2022] EWHC 2284 (Comm), QBD

Free Movement: Secretary of State to backdate support payments after Court of Appeal dismisses case: R (JB (Ghana)) v Secretary of State for the Home Department [2022] EWCA Civ 1392, CA

RPC Perspectives: Claiming the shortfall from your client: Belsner v Cam Legal Services Ltd [2022] EWCA Civ 1387; [2022] WLR(D) 415, CA

Free Movement: Appeal on costs, only if the judge below is obviously wrong: R (MH (Eritrea)) v Secretary of State for the Home Department [2022] EWCA Civ 1296, CA

UK Human Rights Blog: The small boats storm and the unlawful seizure of mobile phones: R (HM) v Secretary of State for the Home Department [2022] EWHC 695 (Admin); [2022] WLR(D) 151, DC

Law & Religion UK: When a unilateral cancellation amounts to discrimination: Billy Graham Evangelistic Association: Billy Graham Evangelistic Association v Scottish Event Campus Ltd [2022] SC GLW 33, Sheriff Ct

Dates & Deadlines

Family Justice Council — 15th Annual Debate

Tuesday 6 December 2022, London and via Teams

The motion for debate in this year’s debate and panel discussion will be: ‘Should remote hearings continue to play a significant role in family cases?’

The event will be chaired by Sir Andrew McFarlane, President of the Family Division and Chair of the Family Justice Council. The panel speakers will be announced shortly.

Please click here to register your attendance at the event. (You will be asked to indicate whether you wish to attend in person or online via MS Teams.)

And finally…

Tweet of the week

A potentially sticky moment recalled by Welsh barrister Richard Huw Jones

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.

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