Weekly Notes: legal news from ICLR, 13 January 2020

As the new law term begins, we welcome our readers back with our first roundup of the legal year, catching up with legal news and commentary over the holiday break.

13 min readJan 13, 2020

Parliament

Bills, thrills and bellyaches

Parliamentary business resumed after the holiday with a busy list of Things To Do (as sketched out in last month’s Queen’s Speech), the most important of which was to Get Brexit Done.

The Brexit Bill (aka European Union (Withdrawal Agreement) Bill 2019–20), which passed its second reading with a triumphant majority of 124 shortly before Christmas, received its 3rd reading in the House of Commons on 9 January and is currently awaiting its 2nd reading in the House of Lords, after which it will move to the committee stage for (one hopes) more detailed scrutiny.

Aside from the necessary legislation, there is also the prospect, outside Parliament, of negotiations, which will follow the implementation of formal withdrawal at the end of the month. David Allen Green considers the options in a recent post on his Law and Policy blog, A new year and a new parliament: what happens next with Brexit. For more detailed discussion of the negotiations, see an earlier post by Obiter J, Law and Lawyers blog, UK and EU in 2020.

Other bills on the agenda include:

Divorce, Dissolution and Separation Bill, designed to implement long-desired proposals for “no fault divorce”, which received its first reading on 7 January. Its second reading — the general debate on all aspects of the Bill — is yet to be scheduled.

Marriage (Approved Organisations) Bill, a private members Bill introduced by crossbench peer Baroness Meacher to amend the Marriage Act 1949 to allow legal recognition of humanist marriages, received its first reading on 9 January. This is something that has been campaigned for by organisations like Humanists UK, who explain that

A humanist wedding is a non-religious ceremony that is deeply personal and conducted by a humanist celebrant. It differs from a civil wedding in that it is entirely hand-crafted and reflective of the humanist beliefs and values of the couple, conducted by a celebrant who shares their beliefs and values. Legal recognition of them has overwhelming public support, including across all major religious and non-religious groups.

They point out that humanist marriages are already legally recognised in Scotland, Northern Ireland, Ireland and Jersey, with Guernsey currently in the process of extending legal recognition too, so it is high time for England and Wales to do likewise.

Prisoners (Disclosure of Information About Victims) Bill, aka ‘Helen’s law’, will place a legal duty on the Parole Board, when considering a murderer’s release, to consider the anguish caused by any refusal by them to disclose the location of their victim’s body. The Bill, which is being reintroduced following the General Election, “will also apply to paedophiles who take indecent images of children but refuse to reveal the identity of their victims”. According to the Ministry of Justice’s press release:

“Parole Board guidance is already clear that offenders who withhold information may still pose a risk to the public and could therefore be denied parole. ‘Helen’s Law’ will however make it a legal requirement for the Parole Board to consider the withholding of information when deciding if an offender should be released. The new law follows the tireless campaigning of Marie McCourt, mother of Helen McCourt who was murdered in 1988 but whose killer has never revealed her body’s location.”

Refugees (Family Reunion) Bill, drafted to make provision for leave to enter or remain in the United Kingdom to be granted to the family members of refugees and of people granted humanitarian protection, and to provide for legal aid to be made available in such cases. It received its first reading on 9 January, introduced by Baroness Hamwee, and is due to have a second reading in the House of Lords on a date yet to be announced. However, it is not the first such bill — an earlier private member’s bill was debated in the previous parliament but appears to have run out of time.

Windrush Compensation Scheme (Expenditure) Bill, to provide for the payment out of money provided by Parliament of expenditure incurred by the Secretary of State or a government department under, or in connection with, the Windrush Compensation Scheme. Something necessitated by one of the worst scandals of the Theresa May government (and Home Office ministry), previously reported here (Weekly Notes, 16 April 2018 and subsequently) and the subject of two recent books (noted here). The bill had its first reading on 8 January.

Note. A bill’s “first reading” basically just introduces it to a session and enables it to be printed in official draft for further discussion and debate. Read more about this in our Knowledge section here: How is legislation made?

Erasmus+

Erasmus was a Renaissance humanist philosopher whose most famous work was his book, In Praise of Folly. MPs seem to have taken this to heart in voting, last week, against a provision that would have required them to maintain Britain’s involvement in the European education exchange programme named after him.

Despite this setback, Chris Skidmore, the minister for higher education in England, has apparently made statements reiterating the government’s intention to seek to preserve the programme.

Legal professions

New chair of Bar speaks out

In her first column in Counsel magazine, and in a wide ranging interview that followed, Amanda Pinto QC set out her priorities for her year as chair of the Bar. She highlighted problems with the criminal justice system and legal aid fees and lack of investment in the courts, and emphasised that “justice for all can only be achieved if everyone has effective access to justice.” She explained:

For that to be a reality, we need some basics: courts that are close enough to be accessible to their users and that are open; justice delivered by judges without inordinate delays; listing cases realistically so that citizens do not pay for unnecessary, ineffective hearings; maintenance of the fabric of the court system, including IT, that is adequate for the 21st century; a justice system that is affordable, using technological advances wisely and suitably; a judiciary that is valued and supported. And, of course, it includes appropriate legal help for all. I will do everything I can to help improve that.

She also highlighted her hopes for a more inclusive and diverse profession, which meant improving access to the profession and fairer distribution of briefs, plus support for wellbeing and a realistic work-home life balance. Pinto is the fourth woman to chair the Bar in its 125 year history, which perhaps reflects to some extent the distance that still needs to be covered. “Chipping away at barriers to the Bar” is mentioned as a particular focus in the interview by Kate Brunner QC, leader of the Western Circuit. She cites the Western Circuit Women’s Forum’s report Back to the Bar, which last year highlighted obstacles and issues for women returning to the Bar after a parental career break, as we reported in Weekly Notes, 28 January 2019 .

Finally, a plea to support the Bar Council itself, which does so much, with so little. Most of the practising certificate fee (PCF) that barristers think goes to the council actually end up with the regulator, the Bar Standards Board, responsible for maintaining the Code of Conduct and seeing that members behave themselves. That’s why the voluntary Bar representation fee (BRF) is so crucial.

Judiciary

Danish Judges expressing their solidarity to Polish colleagues

Support for protest by Polish judges

On Saturday 11 January hundreds of European judges joined their Polish counterparts in a march in Warsaw to protest against recent measures by the government there that threaten judicial independence. The march had been organised by Justitia, the Polish Association of Judges, and all European judges were invited to participate. Many did, or (like those from the UK) offered their support. Justitia published a map of other European countries (including Denmark whose judges appear in the picture above) whose judiciaries were planning to participate or supporting the march. Other organisations had signalled their support in advance of the march. According to a statement from the Irish Association of Judges,

“the Irish judiciary will be represented at the silent march in Warsaw by Mr Justice John MacMenamin, a judge of our Supreme Court, who will be carrying letters of support from the Chief Justice of Ireland, Mr Justice Frank Clarke and from the Association of Judges of Ireland.”

The Consultative Council of of European Judges (CCJE) had earlier issued a statement reiterating its

“clear opposition to the steps taken by the legislative and executive powers in Poland in breach of Council of Europe’s standards on the independence of the judiciary and undermining the protection of judges when carrying out their judicial duties”

and urging the authorities in Poland to start an “open, comprehensive and honest dialogue with the judges” to resolve the situation.

The President of the International Association of Judges (IAJ), Tony Pagone QC, wrote to offer their support and his apologies for absence. “It is a big step for judges to leave their court rooms to draw attention to the importance of the rule of law and to judicial independence.” The IAJ has a dedicated page dealing with the Polish judiciary.

Family law

Equal civil partnerships

As John Bolch records on the Stowe Family Law blog,“the first opposite-sex couples to enter into civil partnerships in England and Wales tied the knot on New Year’s Eve”. He goes on to examine the Government’s estimate that “up to 84,000 mixed-sex couples could form civil partnerships this year in England and Wales”. He notes that the figures given allow for low, middle and high take-up of the option, and that

“some of the new opposite-sex civil partnerships will come out of the ‘pool’ of couples who would otherwise simply have cohabited, rather than couples who would otherwise have got married. Nevertheless, it does seem that civil partnership may become a new ‘normal’, even if it does not become the norm.”

He also points to a helpful table prepared by the Government Equalities Office, which explains the difference between a civil partnership and a marriage. Cohabitation is not really any sort of equivalent, either to marriage or civil partnership: as many of us never tire of pointing out, there is no such thing as “common law marriage” despite the abiding myth to that effect. And civil partnership gives couples rights similar to those conferred by marriage, so that breakups are dealt with in the family courts; whereas cohabitation ends in TOLATA* wranglings in the Chancery Division, with all that that entails (or doesn’t).

D-day redux

Another myth of the family law is that the first working day after the holiday season brings law firms a massive spike in divorce business. Because all the stresses and strains of family life during the festive period are enough, it seems, to prompt couples to break up.

As Tony Roe, consultant solicitor with Pennington Manches Cooper, pointed out in a post on the Transparency Project blog, The perennial pantomime of ‘Divorce D Day’?, this story rolled out by the media every January is “as much as a tradition as the appearance of the pantomime dame”. But it’s not the media’s fault, since

“Most family law solicitors do little or nothing to dispel the myth. Instead, we queue up to be quoted.”

Indeed, a number of firms seem to issue a press release to mark the date, giving silly seasonal media outlets a perfect filler for the New Year news lull after the fireworks have fizzled out. Barrister Greg Williams points out that the far more real problem might be (as discussed above) for unmarried couples breaking up.

*TOLATA = Trusts of Land and Appointment of Trustees Act 1996. (See note by Millie Benson, 1KBW: Cohabitation: An Introduction to Schedule 1 and ToLATA)

Constitutional law

Constitution, Democracy and Rights Commission

The Queen’s Speech reiterated the idea, indicated on page 48 of the Conservative Party Manifesto (see Weekly Notes, 16 December 2019) of setting up a Constitution, Democracy & Rights Commission “to restore trust in our institutions and in how our democracy operates”. It could examine the alleged abuse of judicial review and human rights litigation, the constitutional position of the Supreme Court, and the idea of including some political scrutiny in the appointment of its judges. The government also plans to repeal the Fixed Term Parliaments Act 2011.

These developments and their likely trajectory are considered in more detail by Obiter J, Law and Laywers blog: Queen’s Speech ~ Constitution, Democracy and Rights Commission

Reference is made to some earlier comments and proposals in support of them:

Policy Exchange — Protecting the Constitution.
Joshua Rozenberg, The Critic — Judging the Judges
Martin Howe QC — Restoring the Constitution.

Meanwhile, the Supreme Court endures, unruffled, beginning a new term/year/decade with a minor change to its lineup following the retirement of its former President, Lady Hale:

Civil procedure

Mandatory E-filing at SCCO

From 20 January 2020 it will be mandatory to use E-filing at the Senior Courts Costs Office. Webex training sessions hosted by Thomson Reuters will run from 14 January 2020 to 16 January 2020. Guidance on electronically using the E- Filing service is also available here. Practice Direction 51O has been amended to reflect the use of E-Filing for the Senior Courts Costs Office, this can be found here.

Some recent reads

Women in law: a century of change

Paul Magrath, on the Bloomsbury Professional blog, celebrates the the centenary of the Sex Disqualification (Removal) Act 1919, charts the progress of women in the law since that watershed enactment, and looks forward to the next 100 years.

Lady Hale: ‘My Desert Island Judgments? Number one would probably be the prorogation case’

Interview by Simon Hattenstone in The Guardian of someone described rather frivolously as “the ‘Beyoncé of the law’, who put a stop to Boris Johnson’s parliamentary suspension”, talking about “equality, ego and” (here we go again) “spider brooches”. (All this “a septuagenarian rock star” stuff is very cringemaking, too. And it doesn’t do the cause of judicial independence and objectivity much good either. But once you get past that, it’s a good piece.)

Behind Closed Doors — BBC Radio 4’s legal drama

BBC Radio 4’s legal drama about “the most interesting, difficult and engaging legal stuff that’s happening in the Court of Protection, the Family Courts, hearings, tribunals and even mediation sessions” explained by writer Clara Glynn on the Transparency Project blog.

Judgment Day

Anna Hoffmann, in Counsel magazine, explains what it was like working as a pupil on the controversial prorogation case in the UK Supreme Court last year. Not something most pupils could aspire to, but inspiring none the less.

Book review: Legal Research — A Practitioners Handbook, by Emily Allbon (with Ian Hunter)

Pupil barrister and former law reporter Sarah Parker on the ICLR blog reviews (and welcomes to her shelf) the latest edition of a comprehensive and detailed handbook on legal research.

Barristers behaving badly: when does your private life bring your profession into disrepute?

Paul Magrath, in The Lawyer magazine, on the dangers of unprofessional behaviour in private life and the effect it can have on the public’s view of the profession as a whole.

How to dress the court — and yourself

Lucy Reed, in Counsel Magazine, offers a rough guide for pupils on the more informal rules and idiosyncratic mannerisms of the Bar: the legal Twitter hive mind sifts the daft and defunct from the customs that really matter.

Northern Ireland January 2020

Excellent summary by Obiter J on the Law and Lawyers blog, of recent events in Northern Ireland politics leading up to the restoration of power-sharing and resumption of sittings by the Northern Ireland Assembly at Stormont, Belfast, plus some current legislative developments.

Other recent roundups

Looking back:

UK Human Rights Blog: 10 cases that defined 2019

UK Supreme Court Blog: Our first decade: celebrating 10 years of the UKSC Blog

Inforrm’s blog: Top 10 Defamation Cases of 2019: a selection

Inforrm’s blog: Top 10 Privacy and Data Protection Cases of 2019: a selection

HMRC press release: Busted! HMRC reveals biggest criminal cases of year 2019

Free Movement review of the year 2019

Looking forward:

Inforrm’s blog: Internet legal developments to look out for in 2020

Nearly Legal: Sibylla (survey of “what is likely to be a busy year for housing law”)

Transform Justice: How to mend our criminal justice system — a twelve point plan

Dates and Deadlines

Law Terms 2020

Hilary: begins Monday 13 January and ends on Wednesday 8 April 2020
Easter: begins Tuesday 21 April and ends on Friday 22 May 2020
Trinity: begins Tuesday 2 June and ends on Friday 31 July 2020
Michaelmas: begins Thursday 1 October and ends on Monday 21 December 2020

Middle Temple LGBTQ+ Social

Middle Temple/Lyceum Theatre – 29 January 2020, 6 to 10 pm

Drinks and canapes in the Queen’s Room, followed by a performance of Disney’s The Lion King at the Lyceum Theatre, plus a backstage tour after the show. The event is open to all members of the Inn and staff, whether identifying under the LGBTQ+ umbrella or as an ally.

You can find ticket prices and booking details via the Middle Temple Website or by calling 020 7427 4800.

For any queries, please contact LGBT@middletemple.org.uk

Beyond the knife — Care before criminalisation

Conway Hall, Holborn, 25 Red Lion Sq, 6 February 2020, 6 to 8 pm

A symposium on knife crime organised by 25 Bedford Row chambers. Speakers include David Lammy MP. Email events@25BedfordRow for details.

The Great Legal Bake

10th — 14th February

The London Legal Support Trust (LLST) are once again calling out for star bakers to make desserts and not legal aid deserts. Taking part is simple — all you need to do is get a team of bakers together and sell your fabulous creations in the office (or to family and friends). If you love baking, or eating cake, sign up today.

And finally…

Tweet of the week

Given that much of the holiday season may have been spent slumped in front of the telly watching crime fiction:

That’s it for this week. Thanks for reading, and thanks for the tweets and blogs and links to content from which this post was derived.

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.