Weekly Notes: legal news from ICLR, 16 December 2019
This week’s roundup of legal news and comment covers the election result, human rights, family law and legal education.
Getting Brexit done
There has been considerable speculation about what sort of government agenda the newly re-elected Prime Minister, Boris Johnson, will pursue following his decisive and overwhelming victory in the UK General Election on 12 December 2019. With 365 seats and a majority of 80, he can probably afford to push through almost any policies, including as hard (or soft) a Brexit as he wants, unconstrained by the need to accommodate any clamorous special interests.
As we reported earlier (see Weekly Notes, 2 December), the election campaigning was marred by dishonesty and fake news on several sides. The Tories achieved their win largely by converting a lot of traditionally Labour held seats, with an appealingly simple (even simplistic) message, to “Get Brexit Done”. Labour, by contrast, offered a veritable advent calendar of pledges, something eye-catching (or eye-stretching) every new day, from free broadband to pension compensation to tax hikes, renationalisations and a four-day working week. But none of these opened windows to the loyalty of their own members in sufficient numbers, let alone the temptation of marginal voters.
Given the assumed strength of Remainer sentiment (perhaps overcalculated), the bigger surprise was how poorly the Liberal Democrats fared, even with the benefit of tactical voting schemes (which also failed to help Labour). Any thoughts of a second referendum seem futile now: if there was any doubt before, the mandate for Brexit has been decisively given in response to a campaign that focused on little else.
The other big gain was for the Scottish Nationalists, north of the border, where the SNP led by Nicola Sturgeon, won 48 of the 59 seats. (Another victory for leavers, if you think about it.) Elsewhere, the Green party retained its single seat in Brighton, under Caroline Lucas, but the Democratic Unionist Party lost two of its ten seats to nationalists, giving it near-zero leverage in the coming Brexit negotiations. However, the biggest losers of all were the Faragistes, old and new, ie UKIP and the Brexit Party, neither of whom won a single seat.
The Prime Minister will no doubt be considering his options for a reshuffle, and which of the policy pledges in his party’s manifesto to honour, and which to conveniently overlook or postpone. The first thing will no doubt be to concentrate on Brexit, and the ensuing trade deal and other relationships that will need to be agreed with the rest of the European Union. That may not be as simple as driving a bulldozer through a wall of polystyrene bricks.
- On the campaign: Chris Dale, Oxford Inciter blog: Ernie, Harold and Eric — random connections between Boris Johnson, milkmen and fridges
- On the outcome: Obiter J, Law & Lawyers: General Election 2019 ~ Conservative win
- On the prospects for Brexit: Tony Connelly, RTE, The Tory landslide and the Irish Sea
The page 48 agenda
None of this should distract us from the potential impact of some of the other policies in the Tory manifesto. Page 48, for example, which has acquired its own hashtag #page48 on Twitter. Under the title Protect our Democracy, this part of the manifesto sets out a list of constitutional obstacles that may have frustrated the will of the people, or the PM, in the past few months or years, and which the new broom intends to sweep away. The solutions proposed here include
- Repealing the Fixed Term Parliaments Act
- Introducing voter ID for future elections and restricting postal voting
- Repealing section 40 of the Crime and Courts Act 2014 (providing costs protection for media claims against the unregulated press) and blocking any continuation of the Leveson Inquiry into press misconduct
- Updating the Human Rights Act and administrative law “to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”.
- Curbing the abuse of judicial review as a way “to conduct politics by another means or to create needless delays”.
- Setting up a Constitution, Democracy & Rights Commission to examine these and other issues, “to restore trust in our institutions and in how our democracy operates”.
Taken in isolation, most of these could be justified as a reasonable policy decision, perhaps not of the first priority, but by no means excessive. Taken together, however, they begin to look like a package of measures designed to reduce the capacity of ordinary citizens, individually or collectively, to challenge the government; and in particular to weaken the balance inhering in the separation of powers between Parliament, the Courts and the Executive. Anyone knowing the recent history of judicial review challenges to executive overreach, and of judicial scrutiny of the overmighty press (which is generally supportive of the executive and critical of the judiciary), cannot fail to be conscious of the taint of vengefulness in some of these proposals. They have not come out of nowhere.
It is clear, too, that the scrutiny and compliance against which these proposals chafe is not limited to the United Kingdom, but embraces the European institutions such as the Court of Justice of the European Union in Luxembourg, and the European Court of Human Rights in Strasbourg (which are often conflated and confused in the minds of their critics). Brexit may offer some release from the former, but further steps will be needed to address the latter. However, in proceeding thus the government would be following a dangerous path. It cannot both market the quality and integrity of the UK’s courts under its “Legal services are Great” banner and at the same time be taking steps to undermine the very judicial independence that such a marketing campaign depends on.
For more on this, see
- The Guardian (letters), The threat to our democracy buried in the Tory manifesto
- Prospect, The sinister threat to human rights buried in the Conservative manifesto
- And on a more cheerful (if still wary) note, Matthew Scott on his Barristerblog, Even if you didn’t support Boris Johnson there is no cause to despair
- Our survey of the law and justice policies in all the main party manifestos: Weekly Notes, 2019 election manifesto special
Broken justice system
Apart from the constitution, there is the small matter of the criminal justice system, about which Caroline Goodwin QC, chair of the Criminal Bar Association, gave a stark warning last week.
“Get justice done! Brexit or no Brexit, without billions of reinvestment back into the entire criminal justice system, the United Kingdom gets undone.”
In a press release to mark the election result, the CBA welcomed the new government, but warned it that “there is no new magic cure for a broken justice system”. Echoing sentiments expressed by candidates during the election campaign, the message states:
“If we care about the national health service then we must care also about the criminal justice system – the two are inextricably linked. Just as we must invest in the police, forensic services, CPS and legal aid, so we must equally invest in prisons and the parole service alongside repairing an underfunded NHS and a failing social care policy.”
The rule of law may perhaps be said to depend more on getting the criminal justice system working properly again, than on tinkering with human rights and judicial review. The attention the new government gives to these matters will show where their priorities lie.
LGBT warrior re-honoured
A veteran of the Falklands War whose service medal was later removed because of his sexual orientation has finally had his honour restored to him.
Joe Ousalice served as a radio operator in the Royal Navy for 18 years, serving in Northern Ireland, in a Nato task force, and in the taskforce sent to liberate the Falkland Islands following the Argentine invasion in 1982. He won a Long Service and Good Conduct Medal and three Good Conduct badges, but in 1993 he was discharged and stripped of his medal because under policies then current his bisexuality was believed to be “prejudicial to good order and naval discipline”.
The ban on LGBT people serving in the military was lifted in 2000, but nothing has been done till now to restore his pride and the honours of which he was deprived.
His case was taken up by the human rights organisation Liberty, which brough proceedings against the Ministry of Defence. No doubt that concentrated their minds, and a settlement was reached. Issuing a formal apology, the MOD said:
“We accept our policy in respect of serving homosexuals in the military was wrong, discriminatory and unjust to the individuals involved.”
Mr Ousalice is far from being the only former service person affected, so one hopes the MOD will remedy the position for all the others similarly wronged.
‘Compassionate’ court drama
Community Care has a review of Judge Stephen Wildblood’s play, Who Cares? The senior family judge for the South West of England, who normally sits in Bristol, wrote and developed the interactive drama in collaboration with Gloucestershire council’s social work academy and a local charity, the Nelson Trust, which supports people with drug and alcohol problems.
Presented in a lecture hall in Cheltenham before an audience of around 100 people, the piece examines what the public rarely see: a typical family law case of the sort normally heard in private to protect the interests of the children involved. The case concerns adoption. As the review in Community Care explains:
“Who Cares? centres on young mum Angie, opening with a heated exchange between her and social worker Annette, who has only recently been assigned her case and arrives to break the news that the council will be seeking to remove her child, Kai.
The production does not shy away from the impact of decisions Angie makes, particularly around her apparent non-engagement with children’s services. But, through its sequence of brief scenes – which end on a note of hope – and then through the Q&A section, it gradually interrogates elements of the context in which those choices take place.”
A revised version of Who Cares? is due to be performed at the University of the West of England in Bristol on 28 January, 2020.
Annual Family Justice Council debate
The Transparency Project have a post reporting on the annual Family Justice Council debate, on 4 December 2019, which this year took as its theme “Do Separating Parents Need the Family Court?” Speakers included Sir Andrew McFarlane, President of the Family Division; Mavis Maclean CBE, Oxford University; Jane Robey, National Family Mediation; Olive Craig, Rights of Women; DDJ Heather MacGregor, PRFD. The report notes that
“The debate format requires panel speakers to organise around ‘for’ or ‘against’ the motion that separating families need the family court. In reality, as the President noted, there were significant areas of commonality and nuance as well as some different views amongst the four speakers.”
In the end, the “majority of the audience voted in favour of a revised realistic motion that separated families need both the family courts AND safe diversion to resourced, joined-up alternatives for more families.”
Witness statements report
Modest proposals to standardise witness statements and improve compliance with the rules have been endorsed in principle by the Business and Property Courts (BPC), according to Pinsent Masons Out-Law blog.
“Among the recommendations of a working group (18-page / 390KB PDF) chaired by Lord Justice Popplewell are the publication of an authoritative statement of best practice on the preparation of witness statements; potential page limits on witness statements; strengthening the witness ‘statement of truth’; and introducing a statement of compliance by the solicitor in charge of drafting the witness statement. Courts should also be encouraged to impose costs sanctions and express judicial criticism of non-compliance.
Further work will now take place on the detailed substance, form and timing of any changes, with the working group now chaired by Mr Justice Andrew Baker.”
The Samaritans have issued a report aiming to deepen public understanding of the causes of the high rate of suicide in prisons. Its key findings are:
“In prisons, suicide risk is a combination of life experiences before imprisonment and the pains of prison life.
Our research confirms that key risk factors, especially mental ill-health, past self-harm, traumatic life experiences and a background of disadvantage are disproportionately common among prisoners. This puts them at a higher risk of suicide before they have even entered prison.
Features unique to the prison environment such as social and physical isolation, uncertainty about sentencing, inconsistent regime and greater likelihood of exposure to suicide can make this risk worse.”
The report is available as a downloadable PDF: Unlocking the evidence: Understanding Suicide in Prisons.
Wot, no gavel?
The Law Society has a recent blog post from Elijah Granet, a Graduate Diploma in Law student at City Law School, on legal Americanisms that have no place in the English legal system.
One of them is obviously gavels, but there are five others, to which no doubt one might add one or two more, after repeated viewings of Legally Blonde and My Cousin Vinny.
Dates and Deadlines
Resolution is conducting a family court survey.
“Tell us about your local court – what challenges are you facing? Have there been excessive delays? Take our short survey and help us build a regional picture of the family courts.”
Tweet of the week
Is from the barrister who tweets as CrimeGirl, with an end of year reflection:
That’s it for this week, and indeed for this term. Have a great break for the holidays and see you back here for the new term, starting on 11 January 2020.
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.