Weekly Notes: legal news from ICLR, 16 May 2022
This week’s roundup of legal news includes a princely welcome to parliament, a war of wigs between wags, a war of words over Brexit and a threat of sanctions over Russia. Plus recent case law and commentary.
Queen’s Speech proposals
Though a few days later she was well enough to attend a horse show at Windsor, Her Majesty the Queen missed the state opening of Parliament last week owing to what were described as “mobility issues”. Her place was taken by HRH Prince Charles, accompanied by a crown on a cushion, in much the same way as a pupil or junior barrister might be required to stand in for their leader called away at short notice (but leaving their wig on the lectern). The new bills promised in the Queen’s Speech that he read out included the following:
- Levelling Up and Regeneration Bill — boosting the economy and improving housing in all areas with a focus on local powers and development.
- Digital Markets, Competition and Consumer Bill — a wide-reaching act that could ultimately require Google and Meta to pay for news, according to the Press Gazette, which also looked at other media related Bills: Queen’s Speech media briefing: Big tech crackdown, Section 40 repeal, sources concern
- UK Infrastructure Bank Bill — to support economic growth and the delivery of net zero
- Schools Bill — about funding and regulation of schools. Russell Sandberg looks at the religious elements in the bill on the Law & Religion UK blog, The Schools Bill 2022: some initial observations
- Financial Services and Markets Bill — “will enhance the UK’s position as a global leader in financial services, through the establishment of a coherent, agile and internationally-respected approach to financial services regulation”
- Online Safety Bill — “to make the UK the safest place in the world to be online by improving protections for users, especially children, whilst protecting freedom of expression”. However, the NUJ has expressed concerns about a lack of protection for journalists and their sources in the Bill. And the independent regulator IMPRESS in its briefing on the Bill is “asking lawmakers to challenge, scrutinise and improve the Online Safety Bill to protect free expression, particularly legitimate journalism content, and properly address harms to the public wherever they occur online.”
- Data Reform Bill — will reform the UK’s current data protection framework, bringing in potentially significant changes to the UK GDPR and Data Protection Act: see DLA Piper, UK: Data Reform Bill: post-Brexit data reforms
- Public Order Bill — “will give the police the powers they need to prevent a minority of protestors from using guerrilla tactics” (and which the government couldn’t quite squeeze into the Police, Crime, Sentencing and Courts Act 2022)
- National Security Bill — will reform the Official Secrets Act “to tackle modern threats”.
- Bill of Rights — will replace and curb scope of or “rebalance” the Human Rights Act 1998. David Allen Green on the Law and Policy Blog was not impressed: This is not a proposal for “a Bill of Rights” — this is semi-waffle in support of vanity legislation. Nor was Joshua Rozenberg, on A Lawyer Writes, where he described it as A bill of rhetoric
- Brexit Freedoms Bill — will enable law inherited from the European Union to be more easily amended “without taking decades of parliamentary time” and “the cutting of £1 billion of burdensome EU red tape for businesses”.
- Social Housing Regulation Bill —see comment on this and the Renters Reform Bill on the Nearly Legal blog, Something to look forward to
- Renters Reform Bill — “will abolish so-called ‘no fault’ Section 21 evictions and strengthen landlords’ rights of possession, providing a fair and effective market for both tenants and landlords”
- Conversion Therapy Bill — “will ban abhorrent conversion therapy practices intended to change sexual orientation”.
- Boycotts, Divestment and Sanctions Bill — to stop public bodies from adopting their own approach to international relations. “There are concerns that such boycotts may legitimise and drive antisemitism as these types of campaigns overwhelmingly target Israel. Such campaigns result in undue politicisation of public institutions.”
Many more bills and more details about them are set out in the Briefing Notes published alongside the speech. See also:
- Russell Sandberg, The Queen’s Speech 2022 (mainly commenting on the Bill of Rights proposals)
- David Anderson / Lord Anderson of Ipswich (aka @bricksilk) commenting on some of the Bills in the House of Lords in the Queen’s Speech debate (via Hansard).
Media reporters’ Charter
A new “Reporters’ Charter” outlining the rights and responsibilities of court reporters has been launched to boost transparency in the justice system, according a breezy announcement by HM Courts and Tribunals Service. The charter, part of the General guidance to staff on supporting media access to courts and tribunals, was developed by the Media Lawyers Association and HM Courts and Tribunals Service and unveiled at the Society of Editors Annual Conference on 11 May 2022.
The document brings together practical guidance for journalists attending courts and tribunals so that it will be easier for them to get the access, documents and information they are entitled to, and sets out advice on how journalists can request to observe video hearings or tune in remotely.
It says nothing about other public observers who should enjoy (for the most part) the same access to public hearings in real or virtual courts. In this, the development follows a long tradition of the courts management and rule makers basically treating press access as equivalent to open justice.
Another example is the initially temporary provision of CPR PD51Y para 3 that “Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings.” This is patently not good enough, and contradicts a well established common law principle for which there is a long line of authority. In a guest post on the ICLR blog, Daniel Cloake (aka The Mouse in the Court) will be commenting on a proposal by the rule committee to make this a more permanent provision of the CPR and why that would be a travesty of open justice.
The Charter’s privileging of the media is based on a misconception about who attends court. While acknowledging that “The public have a right to attend most court and tribunal hearings” it argues that “the reality is the public primarily learn about the work of the courts and tribunals through news reports in newspapers, on television, radio or online.” The problem is that the public actually learns less and less because reporters have stopped going to court (unless the case is a sensational or exceptional one) and the closure of local courts and the obstructiveness of court staff has made it harder for members of the public to attend. Law students have been turned away, people have been told not to take notes, and people asking for access to remote hearings have been ignored or only given the information after the hearing has already happened. All this has been well documented and HMCTS have issued routine excuses about “staff training”, to no avail. It does not help when documents like this Charter simply perpetuate the myth that only journalists need access.
In this context it is worth repeating the words of an Open letter from NGOs and academics on open justice in the Covid-19 emergency published on the Justice Gap website on 29 May 2020:
“In courts and cases where access is restricted to the media alone, we can only scrutinise the functioning of the justice system through a very narrow field of view, when a case attracts media interest. The public interest in observing justice goes beyond whether a case is newsworthy: a public observer may bring to light other issues in the justice process that are of lesser interest to the media, or beyond the media’s reporting capacity. It has always been recognised as fundamental to the realisation of the open justice principle that courts must provide access not just for journalists and the media, but also the wider public — this may include academic researchers, not-for-profit organisations and charities, and family members of court users, for example.”
More recently, on the Transparency Project blog, Court hearing lists and open justice describes the difficulties still being experienced by non-media observers seeking to find out about and view proceedings supposedly conducted in open court. For them, this lovely Charter for the benefit of media reporters is unlikely to be of much benefit, since if anything it will perpetuation the “gatekeeping” effect of privileging media access, thus obscuring the greater transparency which open justice ought to guarantee.
NI Protocol at (law)breaking point
As Joshua Rozenberg explains (A Lawyer Writes, EU or NI: which takes priority?), “The Northern Ireland protocol is an integral part of the Withdrawal Agreement that sets out how the UK’s exit from the EU was intended to work.”
Unfortunately, it does not seem to be working, at least not as intended or as secretly (fingers crossed) hoped by the Prime Minister. Having no trade barriers either between the EU and NI or between NI and GB seems in retrospect almost too much like having your cake and eating it, something the EU often accused the UK of wanting to achieve by getting all the benefit and none of the burden of Brexit.
The question is whether, having failed to renegotiate the protocol with the EU, the UK can unilaterally alter or suspend the operation of its provisions. Article 16 of the protocol, explains Rozenberg, is an “emergency mechanism” that can be used by either the UK or the EU to introduce temporary “safeguard measures” in order to protect its economy or society:
“The UK has never used article 16, although the EU briefly threatened to do so in January 2021 to limit vaccine exports to Northern Ireland. As we can see, article 16 does not allow the parties to suspend the protocol — still less, to override it or withdraw from it. But it does permit limited “safeguard measures” — which would presumably be contrary to other provisions in the protocol.
Although the UK did consider triggering art 16 last year, it is apparently no longer thinking of doing so. Instead, it seems to be proposing legislation that would make breaches of the protocol lawful under the laws of the United Kingdom. According to a report in The Times about this, the Attorney General Suella Braverman QC MP has advised that legislation to override the Northern Ireland protocol would be legal because the EU’s implementation of it is “disproportionate and unreasonable”. Braverman’s advice, which has not been published, is said to give Boris Johnson “legal cover to push ahead with plans for legislation that will enable the UK to override large parts of the protocol”.
However lawful the UK’s actions might be under its own legislation, a breach of the protocol would still be a breach of international law. The EU is likely to object, and to respond with a trade war and by suspending cooperation on all matters other than in relation to the war in Ukraine. The question, says Rozenberg, is one of priorities. “Is the government’s priority peace and prosperity through trading with the EU? Or should it prioritise peace and prosperity in Northern Ireland?”
It’s possible, of course, that talk of legislation, even of advice as to its legality, is just more negotiation by other means, and we shouldn’t take too much notice of it. One might add that since we have not yet seen the Attorney General’s advice, it seems both presumptuous and prejudicial to criticise it — as many seem to be doing on Twitter. It would certainly be most unwise to reverse-engineer what it must have said by reference to how it’s been reported, via who knows what lobby briefing or “No 10 sources” process.
See also: David Allen Green, Law and Policy Blog, Four truths about the Northern Irish Protocol
The Marriage and Civil Partnership (Minimum Age) Act 2022
This was another of the bundle of new Bill that made it to the finishing post before the last parliamentary session expired on 28 April 2022. The Act will amend the Marriage Act 1949 and the Civil Partnership Act 2004 to raise the minimum age at which people can enter into a marriage or civil partnership in England and Wales from sixteen to eighteen.
In a post on the Law & Religion UK blog, Russell Sandberg and Kathy Griffiths focus on exploring the new criminal offence the statute creates and the three implications of the legislation that remain unresolved.
Wags wage war with wigs
In what’s become known as the “Wagatha Christie trial”, according to the latest Law and Media Round up from Inforrm’s blog,
“Mrs Vardy is suing Mrs Rooney for defamation over what she claims are false allegations made by Mrs Rooney on social media that she was involved in leaking information from Mrs Rooney’s private Instagram account to the Sun newspaper”.
This trial in court 13 at the Royal Courts of Justice may have added to the gaiety of the nations and would probably be perfect for daytime TV but it has also prompted stern comments as to the absurd waste of court and judicial time on a matter of rather less importance than most of the cases still awaiting trial.
There’s been lots of media coverage, as you’d expect, of which perhaps the best was from Camilla Long in the Sunday Times, Wagatha Christie trial is a Greek tragedy in fake tan . . . with more swearing
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
COSTS — Detailed assessment — Bill of costs: AKC v Barking, Havering & Redbridge University Hospitals NHS Trust, 10 May 2022  EWCA Civ 630;  WLR(D) 203, CA
CRIME — Sentence — Confiscation order: R v Saroya, 03 May 2022  EWCA Crim 602;  WLR(D) 201, CA
EXTRADITION — European arrest warrant — Proportionality: Badea v Romanian Judicial Authority, 04 May 2022  EWHC 1025 (Admin);  WLR(D) 204, QBD
FAIR TRADING — Consumer protection — Distance and off-premises contract: absoluts-bikes and more-GmbH & Co KG v the-trading-company GmbH, 05 May 2022 (Case C-179/21); EU:C:2022:353;  WLR(D) 202, ECJ
FINANCIAL SERVICES — Compensation — Statutory scheme: Allianz Global Investors GmbH v G4S Ltd, 10 May 2022  EWHC 1081 (Ch);  WLR(D) 206, Ch D
LOCAL GOVERNMENT — Homeless persons — Suitability of accommodation: R (Elkundi) v Birmingham City Council (R (Ross) v Birmingham City Council, R (Ahmed) v Birmingham City Council, R (Al-Shameri) v Birmingham City Council), 04 May 2022  EWCA Civ 601;  WLR(D) 198, CA
PLANNING — Enforcement notice — Appeal: Manchester City Council v Secretary of State for Levelling Up, Housing and Communities, 10 May 2022  EWHC 1062 (Admin);  WLR(D) 207, QBD
PRISONS — Prisoners’ rights — Release on licence: R (Johnson) v Parole Board, 04 May 2022  EWHC 1026 (Admin);  WLR(D) 200, QBD
TRADE MARK — European Union trade mark — Infringement: Lifestyle Equities CV v Amazon UK Services Ltd, 04 May 2022  EWCA Civ 550;  EWCA Civ 552;  WLR(D) 199, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Family Lore: VV v VV: the folly of love: VV v VV  EWFC 41, Fam Ct
UK Supreme Court Blog: Case Comment: Coal Staff Superannuation Scheme Trustees Ltd v Revenue and Customs Comrs  UKSC 10;  1 WLR 2359; The Times, 2 May 2022, SC(E)
Nearly Legal: Unravelling — the effect of a debt moratorium on enforcement steps taken during it: Lees v Kaye  EWHC 1151 (QB), QBD
Free Movement: Iraq country guidance on ID cards revised: SMO and KSP (Civil status documentation, article 15) (CG)) Iraq  UKUT 110 (IAC), UT (IAC)
NIPC Law: Preparing Witness Statements for Use in Trials in IP Actions: Greencastle MM LLP v Payne  EWHC 438 (IPEC), Ch D
Free Movement: Upper Tribunal dives into the Refugee Convention exclusion clauses: KM (exclusion from the protection of the Refugee Convention) Congo  UKUT 125 (IAC), UT (IAC)
RPC Perspectives: Commercial Court confirms limits of full and frank disclosure duty in arbitration enforcement action: General Dynamics UK Ltd v State of Libya  EWHC 501 (Comm), QBD
Law & Religion UK: Harassment in employment? Ali v Heathrow Express Operating Co Ltd  EAT 54, EAT
UK Human Rights Blog: Conviction of doctor under assisted suicide prohibition not in breach of Convention: Lings v Denmark (Application no. 15136/20), ECtHR
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Tweet of the week
is from a series posted by Stories of the Four Courts, Dublin on the use of barristers (forbidden to advertise themselves) in advertisements for drinks, smokes etc. We might pinch a couple more of these.
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.