Weekly Notes: legal news from ICLR, 13 March 2023

This week’s roundup of legal news includes a political football, contested legislation, and other topical developments; plus recent case law and commentary.

Political football: AI-generated image via Shutterstock.

Politics

Pitched battle

Last week it was the turn of the lawyers and civil servants; this week the fury of the government and supporters of its new immigration Bill was turned on a well-known football commentator who had tweeted critically of the dehumanising language used to justify the legislation.

The BBC, for whom Gary Lineker works on a freelance basis, cancelled his appearance on the popular TV programme, Match of the Day, but none of the other regular commentators was willing to fill the slot and a lot of the weekend’s other sports programmes were also taken off air. The chairman of the BBC, Richard Sharp, a former Tory donor who is under investigation over his failure to disclose his role in facilitating a loan to the then Prime Minister Boris Johnson shortly before his appointment, faced fresh calls for his resignation. The BBC’s director general, Tim Davie, also facing calls to resign, said Lineker had been asked to “step back” after getting “involved in party political matters”. He added he was prepared to review impartiality rules for freelance staff like Lineker, but declined to say whether he would have been suspended if he had, instead, tweeted in support of the government’s immigration policies. All of this has made the BBC look muddled and inconsistent. But what about the law?

The Bill v The Boats

The proposed legislation which has prompted all this culture-war kerfuffle is named, apparently without any nominative deterministic intent, the Illegal Migration Bill. The Bill is intended to “Stop the Boats”, and a slogan to that effect was affixed to the front of the lectern used for policy briefings by the Prime Minister. The boats in question are those carrying migrants across the channel from France, inflatable dinghies for the most part, dangerous and overcrowded, yet still the route for many of those seeking to arrive in this country in order to claim asylum. Announcing the Bill, the Home Office said:

“People who arrive in the UK illegally will instead be detained and swiftly removed to their home country if safe, or another safe third country, such as Rwanda, where they will be supported to rebuild their lives.

Anyone illegally entering the UK will be prevented from accessing the UK’s world-leading modern slavery support or abusing these laws to block their removal. Any other challenges or human rights claims can also only be heard after removal, remotely.

By ending illegal immigration as a route to asylum, stopping the boats and taking back control of our borders the Bill will ensure the UK can better support people coming through fair, safe and legal routes.”

But no alternative route for most of those genuinely entitled to claim asylum or victims of modern slavery is currently being offered. (This is what is legal terminology is known as putting the cart before the horse. First we stop the boats. Then, and only then, do we provide alternative routes.)

For more detailed commentary on the Bill, see

• Joshua Rozenberg, A Lawyer Writes: An illegal bill? and Still talking tough on migrants
• Nicholas Reed Langen, The Justice Gap: ‘Disregarding international law is one thing, but ditching democratic rights is quite another’
• Colin Yeo, Free Movement: What is in the Illegal Migration Bill?
• Jed Pennington, Free Movement: Detention provisions in the Illegal Migration Bill
• Institute for Government: The Illegal Migration Bill: seven questions for the government to answer
• Institute for Government: Illegal Migration Bill highlights how expectations of legislative scrutiny have plummeted
• David Allen Green, The Law and Lore Blog: Legislation as an annual or biennial virility event

The Bill v The Blob

The Bill is sponsored by Suella Braverman as Secretary of State for the Home Department. She signed a statement on the face of the Bill declaring that:

“I am unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with the Convention rights, but the Government nevertheless wishes the House to proceed with the Bill.”

Defending the Bill, which critics have argued would breach the UK’s obligations under the UN Refugee Convention as well as the ECHR, Braverman sent an email — or it was sent in her name (it was later claimed she hadn’t personally sent it) — in which she told Tory MPs that

“We tried to stop the small boats crossings without changing our laws. But an activist blob of left-wing lawyers, civil servants and the Labour Party blocked us.”

Commenting on this attack on his profession, Chair of the Bar Nick Vineall KC issued a statement:

“The Home Secretary’s recent comments referring to ‘an activist blob of left-wing lawyers’, and the Prime Minister’s comment that the Leader of the Opposition is ‘just another lefty lawyer’ betray a startling and regrettable ignorance about the role of lawyers in society.

“Lawyers represent their clients within the legal framework that Parliament creates. Lawyers should not be associated with the causes of their clients as a result of representing their clients. Right-thinking people from across the political spectrum understand this. It is essential to the rule of law that members of the Cabinet do too.”

The civil service was pretty irate as well.

The Bill receives its second reading on 13 March, but having already stirred up so much division and controversy over a matter which could, sensibly, be the subject of cross-party and international cooperation seems curiously ill-judged, and poorly timed just when the current Prime Minister was doing rather well in other areas (the Windsor Framework, for example, which we reported on last week). The Bill isn’t even supported by all Conservative MPs, and is expected to have a rough ride in the Commons as well as the Lords, leaving aside its treatment by the courts should it ever receive the Royal Assent. To stake your government’s reputation on something that is almost bound to fail is perhaps more Quixotic than Canute-like (at least Canute knew that commanding the waves to retreat was futile, it was his flatterers who needed the lesson). (Though perhaps excessive flattery is unlikely to be a problem in the Home Office, or even No 10.)

For more on this:

• BBC: BBC boss Tim Davie ‘sorry’ after sport disruption in Lineker row
• George Letsas and Virginia Mantouvalou, UK Labour Law Blog: Censoring Gary Lineker
• Bar Council: PM and Home Secretary attacks on lawyers betray a startling ignorance
• Civil Service World: Suella Braverman ‘may have broken ministerial code’ with attack on ‘activist civil servants’
• Guardian: Tory ex-cabinet minister urges rethink over child detentions in small boats plan

Other recent items

UK Digital Markets, Competition and Consumer Bill could have major impact on subscription providers

Businesses that provide subscription services to customers in the UK should consider the implications of upcoming reforms and prepare for an increased level of regulatory scrutiny, say Angelique Bret and Sam Hall of Pinsent Masons, on Out-Law.

Shutting down parliament

A new book reminds us which MP first suggested prorogation to get Brexit done (hint, it wasn’t Boris Johnson), says Joshua Rozenberg in a recent post on A Lawyer Writes. The book in question is The Parliamentary Battle over Brexit (OUP), “a compelling and comprehensive account by Meg Russell and Lisa James” due to be published later this month.

SLAPPs, the SRA and the need for perspective

Iain Wilson, via Inforrm’s blog, discusses the implications of the Thematic Review, a spot review by the Solicitors Regulation Authority of 25 firms practising defamation and privacy work, carried out last October and November, and suggests that talk of SLAPPS (strategic litigation against public participation) is “greatly exaggerated”. (The article was originally published in the Law Society Gazette.)

Attorney General Visits Ukraine to Discuss International Accountability for Russia’s Actions

Attorney General Victoria Prentis KC MP took part in a three-day visit to Ukraine between March 2–4. As well as visiting scenes of devastation and laying a wreath to commemorate civilians killed in the conflict, she was there to discuss with Prosecutor General of Ukraine, Andriy Kostin, the UK and wider international support to Ukraine’s domestic prosecutions, including through the UK-US-EU Atrocity Crimes Advisory Group. She also met representatives of Ukrainian civil society and the Ukrainian judiciary to hear about further progress and areas of focus within Ukraine on Russian accountability.

Recent case summaries from ICLR

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

CHILDREN — Orders with respect to children — Disclosure orders: In re P (Service on parent in a refuge), 03 Mar 2023 [2023] EWHC 471 (Fam); [2023] WLR(D) 116, Fam D

CRIME — Sentence — Assault on emergency worker: R v Ali (Arie), 03 Mar 2023 [2023] EWCA Crim 232; [2023] WLR(D) 110, CA

CROWN COURT — Appeal to — Dismissal of appeal: R (Lawal) v Crown Court at Cambridge, 03 Mar 2023 [2023] EWHC 466 (Admin); [2023] WLR(D) 112, KBD

EXTRADITION — European arrest warrant — Speciality: Suceava District Court, Romania v Gurau, 02 Mar 2023 [2023] EWHC 439 (Admin); [2023] WLR(D) 113, DC

TORT — Duty of care — Competitive sport: Czernuszka v King, 23 Feb 2023 [2023] EWHC 380 (KB); [2023] WLR(D) 99, KBD

Recent case comments on ICLR

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

Free Movement: Local authority’s challenge against accommodating unaccompanied asylum seeking children fails: R (Medway Council) v Secretary of State for the Home Department [2023] EWHC 377 (Admin), KBD

Nearly Legal: Contempt and Conduct of Litigation: Baxter v Doble & Anor [2023] EWHC 486 (KB), KBD

Law & Religion UK: Chaplaincy, charades and bullying at HMP Wakefield: Burns: Rev M Burns v Secretary of State for Justice, Judgment PDF, ET

Free Movement: High Court considers how the loss of work may engage article 8: Kulembegov v Home Office [2023] EWHC 337 (KB), KBD

Transparency Project: Re Z: A family court decision to share serious abuse findings with Social Work England (with guidance): In re Z (Disclosure to Social Work England: Findings of Domestic Abuse) [2023] EWHC 447 (Fam), Fam D

ICLR news

2023 Pupillage Award

If you are taking up pupillage in Autumn 2023, paid a total for the pupillage year of no more than £30,000 (including guaranteed earnings), you could receive our top-up award of a further £13,000.

In recognition of the difficulties faced by many talented individuals during pupillage, the ICLR currently awards an annual bursary worth £13,000 in direct financial assistance to a pupil during the course of their 12 month pupillage in Chambers.

To find out more, see Application page.

And finally…

Tweet of the week

is from poet Brian Bilston, on the topic we began with, and demands to be read both ways.

That’s it for now. Thanks for reading, and thanks for all your toots, tweets, posts and links. Work hard, be kind, take care.

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.