Weekly Notes: legal news from ICLR, 15 November 2021

This week’s roundup of legal news and commentary includes climate justice and diplomacy, public inquiries, judicial discipline, courts and recent case commentary.

Photo by Anna Shvets from Pexels

Environment

Phase-out of coal scuttled

The COP 26 global summit on climate change in Glasgow ended with some notable achievements and some notable disappointments. Among the latter category the downgrading of the commitment to “phase down” rather than (as originally drafted) “phase out” the use of coal — following a last-minute objection by India, supported by China. But there was agreement to speed up the end of fossil fuel subsidies, thereby marking a recognition of the link between fossil fuels and global warming.

In all, nearly 200 countries agreed the Glasgow Climate Pact to keep the 1.5C temperature rise limit alive (though it can only be delivered with concerted and immediate global efforts) and to finalise the outstanding elements of the Paris Agreement. There were also commitments to significantly increase financial support through the Adaptation Fund as developed countries were urged to double their support to developing countries by 2025. According to the conference website, “the final COP26 text follows two years of intense diplomacy and campaigning undertaken by the UK Presidency to raise ambition and secure action from almost 200 countries”.

Meanwhile, in official speeches and commentary a confusing array of metaphors — including ticking timebombs, minutes before midnight, and a patient’s weakening pulse — have been used in describing the urgency of the climatic situation. This represents a kind of linguistic overheating that seems, frankly, not very scientific.

Inquiries

Open justice

The House of Commons Justice Committee has been hearing oral evidence in its inquiry, Open justice: court reporting in the digital age. This short inquiry seeks to understand how digital technology has affected the way that the media and the public access and report on the courts. You can submit evidence until Monday 29 November 2021. (This seems to be an extension of the original deadline, under the terms of reference, at least for submissions via the online portal, which was 18 October.)

There was an oral evidence session on 9 November, featuring Ms Maeve McClenaghan, Journalist at The Bureau of Investigative Journalism; Ms Emily Pennink, Old Bailey Correspondent at Press Association, and Dr Judith Townend, Senior Lecturer in media and information law at University of Sussex. There is a transcript here.

ICLR was one of a number of organisations who submitted written evidence, all of which you can find here.

See also Press Gazette: ‘Tenacity’ of Bureau journalists earns open justice reminder to judges

IPP Sentences

The same Justice Committee is also still hearing and calling for evidence in its inquiry into Imprisonment for Public Protection (IPP) sentences. But not for much longer. You can submit evidence until Monday 22 November 2021.

“More than 1,700 people are in prison serving indeterminate sentences for public protection, even though IPP sentences were abolished nearly 10 years ago. Some 96% of those prisoners have completed their mandatory period in prison (known as their “tariff”) and do not know when they will be released.

In this inquiry the Committee will examine policy issues surrounding IPP sentences, with the aim of identifying possible legislative and policy solutions.”

Post Office Horizon IT scandal

Two interesting developments. Nick Wallis, who is covering the current inquiry on his new blog, reports that (thanks to a Freedom of Information request) a briefing document given to Jo Swinson MP about Horizon when she took up her role as Postal Services minister in 2012 has come to light. The briefing referred to a “trickle” of cases in which convicted sub-postmasters complained of miscarriages of justice, but asserted that the system was “robust” and that “Both the NFSP and CWU have expressed full confidence in the system”. (The NFSP is the National Federation of Sub-Postmasters and the CWU is the Communication Workers Union.) Wallis says:

“This is perhaps the most damaging sentence in the briefing note, because if there were anything wrong with Horizon, you would have thought the two unions whose members used it would be hopping up and down, yet strangely, they weren’t.”

John O’Sullivan, who posed the initial FOI request, has gone back to BEIS asking how they were able to make such an assertion.

The second development is of some significance to the scope and effectiveness of the inquiry. In response to a request from the inquiry chair, Sir Wyn Williams, the Post Office, the government (specifically the Business department and UKGI, its corporate arm) and Fujitsu, have all agreed to waive legal professional privilege on important legal documents. For more on this, see Wallis’s post: Sir Wyn receives privilege waiver

Judiciary

Discipline proposals

A consultation by the Lord Chancellor and Lord Chief Justice of England and Wales on proposals about the judicial disciplinary system in England and Wales has been launched. It will be open until 7 February 2022.

The introduction to the consultation explains what is meant by judicial “misconduct”, viz.

“improper personal conduct by a judicial office holder that is serious enough to call for formal disciplinary action. Some examples of behaviours which can result in a finding of misconduct include: Offensive remarks/loss of temper in court; Improper conduct towards colleagues/staff; Misuse of judicial status; Misuse of social media; Failure to report relevant matters such as personal involvement in legal proceedings.”

The proposals in this consultation document are intended to improve, rather than reinvent, a system that has stood the test of time well since it was last reviewed almost a decade ago. The proposals cover a range of issues including:

  • Defining the purpose of the disciplinary system
  • Transferring responsibility for dealing with complaints about tribunal members from chamber presidents to the JCIO
  • Classifying different levels of misconduct
  • Improving the statutory process for investigating complaints, including proposals about the separate process for complaints involving magistrates
  • Providing the public with more information about disciplinary decisions
  • Promoting diversity amongst those who carry out statutory roles in the system.

Joshua Rozenberg (Sweeping misconduct away) has commented in particular on proposals for varying the period after which details of misconduct findings may be removed from view on the Judicial Conduct Investigations Office (JCIO) website. It would now depend on the seriousness of the misconduct.

The Law Society Gazette noted that Judicial misconduct findings should be ‘more detailed’, but no public hearings

Courts: Scotland

Debut livestream from Court of Session

Rather surprisingly for the first time later this month the Court of Session in Scotland will be live-streaming an appeal. It means that members of the public from across the globe will be able to tune in to watch the two-day hearing scheduled for 17 and 18 November.

This is something the UK Supreme Court (which hears appeals from the Court of Session) and the Court of Appeal of England and Wales (whose jurisdiction is similar to that of the Court of Session) have already been doing for some years. Moreover, following the transition to remote hearings during the lockdown from March 2020, a number of High Court and other court hearings have also been conducted online with access being provided to the public and press, under conditions provided for by the Coronavirus Act 2020, in order to ensure the maintenance of open justice.

The announcement by the Judiciary of Scotland said: “Live streaming is not appropriate for all hearings and the decision to grant permission was based on the circumstances of the particular case.” The appeal involves lead cases brought by Scottish local authorities against truck manufacturers for damages following findings by the European Commission of the existence of a cartel. Calling before Lord Carloway, Lord Woolman and Lord Pentland, it will involve legal argument without witnesses.

Details on how to access the Court of Session case are available on the Scottish courts website.

Recent case comments on ICLR

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

Inforrm’s blog: Hearing Report: Mail on Sunday appeal against Meghan’s Privacy Victory, Day 1: HRH Duchess of Sussex v Associated Newspapers Ltd (Livestreamed CA Hearing)

Transparency Project: The Mystery of ‘X’ — the Croydon Expert: A and B (Children), Re [2021] EWFC B64, Fam Ct

UK Human Rights Blog: Rehabilitation and retribution: In re JR123’s application for judicial review [2021] NIQB 97, QBD (NI)

RPC Perspectives: Shinelock Ltd — payment not deductible as a loan relationship debit: Shinelock Ltd v Revenue and Customs Comrs [2021] UKFTT 320 (TC), FTT

Nearly Legal: Reasonable evidence of in reasonable condition — private sector discharge: Hajjaj v City of Westminster Council [2021] EWCA Civ 1688; [2021] WLR(D) 570, CA

UK Supreme Court Blog: New Judgment: Alize 1954 v Allianz Elementar Versicherungs AG (The CMA CGM Libra) [2021] UKSC 51, SC(E)

Mishcon de Reya: The developing law on data protection group claims: Lloyd v Google llc [2021] UKSC 50, SC(E) — one of a large number of comments on this case.

Free Movement: Liars can still be genuine trafficking victims: R (TVN) v Secretary of State for the Home Department [2021] EWHC 3019 (Admin), QBD

Other recent publications

The ‘c’ word — why ‘corruption’ is the accurate word for describing what the United Kingdom government is doing

David Allen Green on the Law and Policy Blog explains that the word “corruption” is more political than legal in meaning and is for that reason a better word to describe the scandals surrounding Boris Johnson’s government and the MPs in Parliament.

Natural justice in Parliament? A courageous proposal, Prime Minister

Staying with the PM and his code of conduct woes, on the UK Constitutional Law Assn Blog PhD candidate Tom Spencer discusses the idea of natural justice as the basis for reviewing procedures in the House of Commons, alongside his own thesis relating to the curiality of the High Court of Parliament of which he contends the Supreme Court of England and Wales is a part.

Secrets and spies

Joshua Rozenberg in the Law Society Gazette interviews Sir Brian Leveson, investigatory powers commissioner, and comments on how his calls for greater oversight of the UK’s Secret Intelligence Service (MI6) have been rebuffed by the government.

The “Two Michaels” and Celil: Windows Into China’s Legal Gulag

Catherine Morris of Lawyers Rights Watch Canada (LRWC) writes on SLAW about Canadians who have been unjustly imprisoned in China after raising human rights issues and peacefully advocating the rights of Uyghur people. She says a commonly-laid criminal charge is “picking quarrels and provoking trouble,” a vague catch-all used to detain dissidents, journalists, human rights defenders, and lawyers. Another common charge is “inciting subversion of state power,” used to arbitrarily detain human rights defenders. These practices seriously violate China’s international law obligations, and the situation has worsened following the new security law and crackdown in Hong Kong.

Policy Exchange report linking drill music to violence ‘inaccurate’ and ‘misleading’

Udit Mahalingam on The Justice Gap reports on how “a coalition of academics and experts have denounced as ‘baseless’ a controversial Policy Exchange report [Knife Crime in the Capital, by Sophia Falkner] linking drill music with violent crime and the ‘legitimisation of gang culture’ in London.”

Some 49 criminologists from academic institutions and non-governmental organisations across the UK have signed an open letter published on the Sociologist of Crisis blog describing the findings of the Policy Exchange report as “factually inaccurate, misleading and politically dangerous”.

Dates and Deadlines

Annual Bar and Young Bar Conference 2021

17–19 Nov online, 20 Nov 2021 in person at The Grand Connaught Rooms, London

ICLR is proud to be sponsoring this year’s conference, and our representatives Paul Magrath and David Cosway will be available in person on 20 November at the Grand Connaught Rooms, Queen St, London to demonstrate ICLR.4, the latest version of our online case law platform, featuring the new AI-driven search technology of Case Genie. We look forward to seeing you there.

Click here for booking etc details.

And finally…

Tweet of the week

is from Inner Temple Library, with a sartorial representation of the hierarchy of citation:

It’s tempting, but we think we’ll stick with the Practice Direction (Citation of Authorities) [2012] 1 WLR 780.

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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