Weekly Notes: legal news from ICLR, 16 June 2023
This week’s roundup of legal news includes political resignations and the fallout from a falling out, a bad report, a new set of rules, and some recent case law and commentary.
The former Prime Minister, Boris Johnson announced his resignation as the MP for Uxbridge and South Ruislip, after becoming aware of the contents of the report of the investigation by the parliamentary Privileges Committee into allegations that he knowingly or recklessly misled the House of Commons over breaches of his own Coronavirus Regulations. In his somewhat rambling resignation statement, he made it clear that he did not accept the findings of the committee, which he accused of bias and of being a “kangaroo court” engaged in a “witch-hunt”. He also suggested that its conduct of the investigation was essentially part of a conspiracy to reverse the effect of the Brexit vote and frustrate all the good things he was trying to achieve for the nation.
The resignation statement came just 11 months after Johnson’s previous resignation statement, on 7 July 2022, when he quit as Prime Minister, after what was effectively a vote of no confidence from his cabinet, saying “them’s the breaks”. In neither statement did he express any contrition for his own actions. To have to resign once might indeed be an unlucky break; to have to do so twice in less than a year begins to suggest a pattern. But no doubt he would argue (with or without the benefit of publicly funded legal advice) that the pattern which emerges is of conspiratorial antagonism by blobular remainers against all the good things he stands for. Or something.
This is not a charge-sheet. Johnson should be remembered for the good things, in fairness, as well as the bad. His willingness to impose and support (by words if not, egregiously, his own deeds) the necessary lockdowns during the Covid-19 pandemic, his setting up of an effective vaccines taskforce under the voluntary chairship of Kate Bingham, and his (possibly mischievous) disclosure of evidence to the Covid-19 Inquiry. His doughty support for Ukraine at a time when other nations were dithering and wobbling, adding money and military resources to energetic vocal diplomacy. His sometimes derided “feel good” boosterism, which can sometimes be an effective tonic for a weakened economy, and his support for the idea (if not the reality) of levelling up. However dishonest, unreliable, thuggish and coercive, he was undeniably an effective leader, winning massive support for his vision of a united and prosperous nation. It is a shame he could not put his undoubted talents to use in a way that didn’t alienate so many of those he worked with. But none of them could have been surprised, given the long history of his dubious reputation.
Another of Johnson’s complaints was over the vetting of his resignation honours list. Eight of his nominations for places in the House of Lords were rejected by HOLAC, the House of Lords Appointments Commission, including the sitting MP Nadine Dorries, an unflagging supporter of Johnson, who announced (in high dudgeon, via Twitter) that she would be resigning her parliamentary seat “with immediate effect” (though at the time of writing had not yet actually done so). Another Johnson supporting MP, Nigel Adams, also announced his resignation in protest over his rejection by HOLAC, making three MPs altogether, and triggering a clutch of by-elections to replace them. Some say this has all been orchestrated (by the Johnson faction) in order to embarrass the current Prime Minister, Rishi Sunak MP, with whom there has been a falling out — though it is hard to imagine they can intend thereby to reduce the majority enjoyed by their own party in favour of giving seats to the opposition. It is all very mysterious.
For more on this, see:
- David Allen Green, Law & Policy Blog: The resignation of Boris Johnson from the House of Commons and What if acceptance of Boris Johnson’s resignation from the House of Commons had been delayed — or even refused?
- Peter Walker, The Guardian: Boris Johnson’s resignation statement — what he really meant
- Evening Standard: Eight Boris Johnson peerage recommendations were blocked, says committee in charge
- Guardian: Sunak faces test as another Johnson ally quits triggering third byelection
- Institute for Government: Five reasons we should be troubled by Boris Johnson’s resignations honours
The report in anticipation of whose publication (jumping before he was pushed) Johnson resigned has now been published for all to see: Matter referred on 21 April 2022 (conduct of Rt Hon Boris Johnson): Final Report (HC 564). At over 100 pages it does not make for a light read, but its importance is obvious from the start:
“Our democracy depends on MPs being able to trust that what Ministers tell them in the House of Commons is the truth. If Ministers cannot be trusted to tell the truth, the House cannot do its job and the confidence of the public in our democracy is undermined.”
The report concludes that Johnson was “deliberately disingenuous” and misled the House, that he did so deliberately, and that he had therefore committed a serious contempt of the House. It lists the grounds for this conclusion, commenting in passing:
“We came to the view that some of Mr Johnson’s denials and explanations were so disingenuous that they were by their very nature deliberate attempts to mislead the Committee and the House, while others demonstrated deliberation because of the frequency with which he closed his mind to the truth.”
For someone who has spent much of his career getting out of difficulties by resorting to a smokescreen of bluff and evasion, this analysis may have come as a shock, but cannot genuinely have come as a surprise. He has simply been rumbled at last.
The report goes on to categorise Johnson’s recent public statement responding to and criticising the inquiry and the Committee’s provisional conclusions as a further contempt, and suggests that “if Mr Johnson were still a Member he should be suspended from the service of the House for 90 days for repeated contempts and for seeking to undermine the parliamentary process”. They also recommend that he should be deprived of his former MP’s pass. However, the final decision as to sanction must be that of the whole House.
For more on this still developing story:
Online Rule Procedure Committee
The Ministry of Justice announced the establishment of a new Online Procedure Rule Committee (OPRC) constituted under the Judicial Review and Courts Act 2022. The OPRC will oversee the development of rules for online proceedings across the Civil, Family and Tribunals jurisdictions, as well as data and behavioural standards for online dispute resolution before proceedings are brought to a court or tribunal.
The OPRC will be made up of six members, including the judicial heads of the civil, family and tribunal jurisdictions. The Master of the Rolls, Sir Geoffrey Vos, will Chair the committee. The other members are: Sir Andrew McFarlane, President of the Family Division; Sir Keith Lindblom, Senior President of Tribunals; Brett Dixon, described as a legal expert; Sarah Stephens, described as an expert in the lay advice sector; and Gerard Boyers, described as a technology expert.
At the moment procedure in real life physical courts is governed by the Civil Procedure Rules (CPR), the Family Procedure Rules (FPR), Criminal Procedure Rules (CrimPR) or rules specifically designed for specialist courts or tribunals, such as the Court of Protection Rules 2017 or The Competition Appeal Tribunal Rules 2015. Each has its own rule committee to draft amendments and practice directions. These committees meet regularly and publish their minutes sporadically. We suspect the OPRC will do likewise.
There is currently no single reliable information hub where all these rules can be consulted and compared. They are published as statutory instruments, but the versions available on Legislation.gov.uk are not always very up to date with the myriad amendments which after long deliberation the relevant rule committees come up with, nor do they include the myriad practice directions with which the committees embellish and adorn the basic rules. The CPR and FPR are available on an older site at Justice.gov (see https://www.justice.gov.uk/courts/procedure-rules) but if you choose to view the Criminal Procedure Rules (Crim PR) you will be taken to a new section on gov.uk listed as Announcements from the Criminal Procedure Rule Committee. The latest version appears to be hosted on a different page at Criminal Procedure Rules 2020 and Criminal Practice Directions 2023. If you just want the rules, Legislation.gov is probably fine. Links to other rules can be found on the Judiciary website, which has information pages about each court or division, as well as guidance documents (such as the Chancery Guide) and advice for litigants in person (for whom rules of court are often an obstacle-course of baffling minutiae).
Ideally, the rules would be as simple and elegant as they were originally intended to be, written in plain language and operating in the same way across all the different courts, tribunals, divisions etc; but since each has its own specialist needs, and its own specialist rule committee, any such harmonisation is eventually bound to be lost as each set of rules becomes overgrown with its own jungle of exceptions and extensions. No doubt the same will happen to the Online Rules.
What might make them easier to use, however, would be integration into the online court interface, so that relevant rules and procedures would be accessible and apparent at each stage as the user moves through the process. For lay users, especially, this could make the process less daunting. And the display of rules could be dynamically harnessed to the user’s particular needs and characteristics. It will certainly be interesting to see how the committee approaches the task.
Other recent items
Telling the story of how the “serious disruption” public order statutory instrument was passed
Excellent analysis by David Allen Green, via the Law & Policy Blog, on the use of secondary legislation (a statutory instrument) to effect a change in the application or scope of primary legislation (a statute) in a way that circumvented what should have been the normal (primary) legislative route, after it was rejected by the Lords.
Parole reforms criticised
Joshua Rozenberg, on A Lawyer Writes, discusses the ‘Dysfunctional policy process’ blamed for flaws in the Victims and Prisoners Bill, which was promoted by Dominic Raab MP before he was replaced as Lord Chancellor and Secretary of State for Justice. In a letter this week to Raab’s successor Alex Chalk, Bob Neill, chair of the Commons Justice Committee said that part 3 of the bill — and part 2, which would create independent public advocates to support victims of major incidents — contained problems that could have been identified and resolved if the committee had been given time to examine those parts of the bill alongside part 1, which creates a victims’ code.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
AIRCRAFT — Carriage by air — Compensation and assistance to passengers: Austrian Airlines AG v TW, 08 Jun 2023 (Case C-49/22); EU:C:2023:454;  WLR(D) 252, ECJ
CHILDREN — Wardship — Inherent jurisdiction: Article 39 v Secretary of State for the Home Department, 09 Jun 2023  EWHC 1398 (Fam);  WLR(D) 255, Fam D
CONTRACT — Misrepresentation — Representation of intention: Goyal v BGF Investment Management Ltd, 26 May 2023  EWHC 1180 (Comm);  WLR(D) 245, KBD
JUDGMENT — Action to set aside — Allegation that judgment fraudulently obtained: Tinkler v Esken Ltd, 09 Jun 2023  EWCA Civ 655;  WLR(D) 247, CA
MENTAL CAPACITY — Incapable person — Interim order: Local Authority v LD, 25 May 2023  EWHC 1258 (Fam);  WLR(D) 254, Fam D
PLANNING — Development — Planning permission: R (Durham County Council) v Secretary of State for Levelling Up, Housing and Communities, 09 Jun 2023  EWHC 1394 (Admin);  WLR(D) 253, KBD
POWER OF ATTORNEY — Lasting power of attorney — Validity: In re Public Guardian’s Severance Applications, 09 Jun 2023  EWCOP 24;  WLR(D) 249, Ct of Protection
PRACTICE — Claim form — Service: Pitalia v NHS England, 09 Jun 2023  EWCA Civ 657;  WLR(D) 248, CA
REVENUE — Income tax — Assessment: Archer v Revenue and Customs Comrs, 07 Jun 2023  EWCA Civ 626;  WLR(D) 246, CA
TRUSTS — Variation — Approval: Harvey v Van Hoorn, 31 May 2023  EWHC 1298 (Ch);  WLR(D) 256, Ch D
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
ICLR Blog: No anonymity for contempt against family court: EBK v DLO  EWHC 1074 (Fam);  WLR(D) 218, Fam D
UK Human Rights Blog: A common law duty of care to issue an Osman warning? Woodcock v Chief Constable of Northamptonshire Police  EWHC 1062 (KB), KBD
Free Movement: Unpublished Home Office policy on NHS debts declared unlawful: R (MXK) v Secretary of State for the Home Department  EWHC 1272 (Admin), KBD
Free Movement: Court of Appeal provides further guidance on unduly harsh deportation test: Sicwebu v Secretary of State for the Home Department  EWCA Civ 550, CA
RPC Perspectives: Interest in possession trust was ineffective in avoiding inheritance tax charge: Pride v Revenue & Customs Comrs  UKFTT 316 (TC), FTT
Hein Online Blog: Obergefell v. Hodges: The Case that Legalized Same-Sex Marriage: Obergefell v Hodges, 576 U.S. Prelim. Print 644 (2015), SC (US)
Law & Religion UK: A return to unmarked graves? In re Streatham Cemetery  ECC Swk 3, Const Ct
UK Supreme Court Blog: New Judgment: JTI POLSKA Sp. Z o.o. v Jakubowski  UKSC 19, SC(E)
Tweet of the week
anticipates the summer solstice with a well-bread representation of a national monument of druidical significance:
And don’t forget it’s jam first, then cream (according to the scone-line rule procedure committee).
No post next week (we’re on holiday). Enjoy the weekend and thanks for all your tweets and toots and linkedy-links. Go safely 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.