Weekly Notes: legal news from ICLR — 18 March 2019
This week’s roundup of legal news and commentary includes a Brexit vote (or three), developments and delays in court digitisation, Bloody Sunday prosecutions or the lack of them, and other crimes of violence, plus legal professional news.
Meaningful vote: third time lucky?
On 11 March, following further negotiations between the UK and the EU, the EU published a document, said to have “legal force and a binding character”, under the impressive title Instrument relating to the agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, which, along with a “unilateral declaration” by the government, was intended to reassure sceptics over the Irish backstop. Asked for his advice on this, the Attorney General Geoffrey Cox QC was compelled to acknowledge on 12 March that, despite the EU’s comfort document, the legal risk remained that Britain might not be able to get out of the backstop.
It was against that background that the Prime Minister’s Withdrawal Agreement was defeated for the second time in parliament the following day, 13 March. MPs voted down the prime minister’s deal by a margin of 149, which was smaller than the 230-vote defeat she suffered in January. Nevertheless, it signalled a period of intense parliamentary activity as a number of other options were mooted and voted upon.
After the defeat of her proposed deal for the second time, Theresa May promised MPs a vote on whether the UK should leave the EU without a deal and, if that failed, on whether Brexit should be delayed. The next day that vote was held, and did fail, by a narrow margin. So the next question was, to delay or not to delay? On Thursday, Parliament voted (by 412 to 202) for the government to ask the EU for a delay to Brexit. EU leaders will debate the matter at a summit next week. Unless they agree to a delay, the exit date of 29 March remains effective, by operation of law, despite the vote to take ‘no deal’ off the table.
At the time of writing, we don’t know whether the EU will grant such a delay, or for how long. What would be the point of such a delay? To get the deal approved (third time lucky) and implemented; or possibly to get a different deal agreed and then approved by Parliament. But one thing (at present) the delay will not be used for, and that is holding a second referendum, or a people’s vote on the deal (whatever it is), because on Thursday, in one of the other votes, with Labour whipping its party members to abstain, Parliament rejected that option. (So the position seems to be that Parliament can vote again and again on the same thing, as often as the Prime Minister likes, but the British people can only vote once, and that’s democracy, yessir.)
Pending the third and presumably final attempt to get the Prime Minister’s deal through Parliament, there have been reports (from Reuters, citing the Daily Telegraph) that Cox AG has new legal advice suggesting that Britain might be able to break off from the Irish backstop under the terms of the Vienna Convention. He seems to be saying that Britain would be able to end the backstop if it was having a “socially destabilising effect on Northern Ireland”. (Presumably that would be over and above the destabilising effect that Brexit is already bound to have.) Cox has earned or enhanced a reputation for succinct legal clarity in all this. Also for robust brevity, as this tweet exchange earlier in the week shows:
There is another way out of this impasse: to revoke (unilaterally) the art 50 notification, issued pursuant to authority conferred by the European Union (Notification of Withdrawal) Act 2017, which would stop the UK leaving the EU on 29 March or at all, unless and until a fresh notification under art 50 were served. Few think it a viable solution, but it remains technically possible. Other legislation, such as the European Union (Withdrawal) Act 2018 (which provides by s 20 that “ ‘exit day’ means 29 March 2019 at 11.00 p.m.’), would need to be amended (as indeed it might if the EU granted an extension of time).
Meanwhile, in the northern mist and rain of Sunderland, on Saturday 16 March a couple of hundred Brexit supporters rallied by Nigel Farage under the banner of Leave Means Leave began what some are calling a ‘pilgrimage of greys’, aiming to complete their dogged tramp across England all the way to London in time for the scheduled departure from the EU on 29 March. Farage is not planning to walk the whole distance; while ‘leave means leave’, it seems ‘walk’ doesn’t necessarily mean ‘walk’.
For a more see:
Attorney General’s office: Legal Opinion on Joint Instrument and Unilateral Declaration concerning the Withdrawal Agreement
David Allen Green, Financial Times: Geoffrey Cox chooses law over politics
Sam Fowles, via UK Constitutional Law Association: Extending Article 50 — Key Legal Issues
What’s another year?
The massive £1bn HMCTS Reform programme to modernise the court system continues apace, or perhaps not quite as apace as it might like to, since we heard last week that HMCTS is giving itself an Additional year to deliver ambitious court reforms and that “Subject to cross-government approval the proposed finish date of the programme will be a year later, in 2023”.
This is the latest in a series of adjustments that has seen the budget expand to more like £1.2bn, and the finish date move from 2020, to 2022 and, now, 2023. The justification for the change is that lessons have been learned from the agile development process, feedback from users digested, and adjustments to the schedule will allow “more time to develop some of the shared systems that sit behind our next set of online services”.
While much of the progress made so far no longer seems particularly recent or exciting — we have heard repeated announcements about the online divorce and probate applications, benefit appeals, small claims and the single justice procedure for minor guilty pleas — there have been some new developments.
This week the CE-file digital case management system developed with Thomson Reuters and piloted in the Queen’s Bench Division was officially launched at the Royal Courts of Justice in London, with a speech by the Lord Chief Justice, and a promise that use of the online document platform would be compulsory for all professionals for filing claims, exchanging pleadings, documents and written arguments. Litigants in person will continue to be offered a paper-based alternative.
There is a “public search”, too, for non-parties, such as the media and interested members of the public. That could include academic researchers and legal bloggers. They can all search and retrieve documents (you have to download them, you can’t read them online) but they will have to pay for them. One also has to pay for time spent using the service: time can be bought in 15 minute slots (for £11) or by the hour (for £44). This is a source of anxiety for some: will HMCTS or the MOJ seek to monetise access to other people’s documents, just as they do with transcripts and court fees? It sounds as though they may. And if you’re paying by the minute or the hour, what happens if the system goes down? Announcing the development, Lord Burnett of Maldon CJ said HMCTS and Thomson Reuters had worked hard to ensure that problems associated with the “legacy systems” in the court service “will not recur” — but given the history of such problems, one could approach such a promise with caution.
For further information, see
Boost for open justice
In an unrelated example of the use of digital technology to promote open justice and transparency, the Judiciary have been publishing daily case hearing transcripts of a hearing in the High Court that has attracted justifiable public interest, namely the judicial review of the government’s decision to proceed with an extra runway at Heathrow airport. Technically, the hearings are of applications by various named individuals, organisations and local authorities seeking permission to claim judicial review, against respondents including The Secretary of State for Transport, Heathrow Airport Ltd and Arora Holdings Ltd. (QBD Admin court applications CO/2760/2018, CO/3089/2018, CO/3147/2018, CO/3149/2018.)
The transcripts are published here, via the Judiciary website, in unapproved form. The speed of publication is highly creditable, but the fact that it has been done at all is a proof of concept that demonstrates how easy, in fact, it would be to do this for ALL major hearings, or indeed all hearings of any kind. The question is why this sort of provision should not be incorporated into the raft of case hearing documents lodged and published on CE-file (see above) or something similar. The answer might be that we would much prefer to access it free of charge via the Judiciary website than have it monetised by the Court Service, charging fees calculated by page count, which would only replace one barrier to public legal information with another.
Bloody Sunday prosecutions
The Public Prosecution Service of Northern Ireland issued its decision over prosecutions of British military personnel arising out of the events investigated in the Bloody Sunday Inquiry. Nineteen individuals had been reported for a range of potential offences including murder, attempted murder and wounding committed on 30 January 1972. However, in the end the PPS only decided it would be justifiable to proceed against one individual. The Director of Public Prosecutions for Northern Ireland, Stephen Herron said:
“It has been concluded that there is sufficient available evidence to prosecute one former soldier, Soldier F, for the murder of James Wray and William McKinney; and for the attempted murders of Joseph Friel, Michael Quinn, Joe Mahon and Patrick O’Donnell.
“In respect of the other 18 suspects, including 16 former soldiers and two alleged Official IRA members, it has been concluded that the available evidence is insufficient to provide a reasonable prospect of conviction. In these circumstances the evidential Test for Prosecution is not met.”
The press release explained that “The decisions announced today relate only to allegations of criminal conduct on Bloody Sunday itself. Consideration will now be given to allegations of perjury in respect of those suspects reported by police.”
In a Summary of Reasons, the PPS explained the criteria to be applied, including the evidential and public interest tests for prosecution, as well as the background of the Inquiry and the way the evidence, including that of the present suspects, had been gathered, the burden and standard of it, and the assurances given as to protection against self-incrimination.
The decision not unnaturally was met with disappointment by the victims and their families. The Irish Times reported that the “The Bloody Sunday families have vowed to continue their campaign for justice”, and there has been speculation that they might seek judicial review of the PPS’s decision. There have also been suggestions that the trial of Soldier F may have been prejudiced already, because of publicity given to remarks by cabinet ministers as to the legal status of acts by serving military personnel and their protection from prosecution in the future.
See Obiter J, Law and Lawyers, Rt. Hon. Karen Bradley MP and Northern Ireland Legacy issues
Violent crime strategies
The government has recently issued various forms of commitment to deal with violence. On 6 March, just ahead of International Women’s Day, the Home Office published its refreshed violence against women and girls (VAWG) strategy (first launched in 2016) in order to provide further support to victims and survivors of violent crime. This includes a cross-sector, end-to-end review into how rape and sexual violence cases are handled across the criminal justice system.
The following day the Home Office published its first cross-government position statement on male victims of VAWG-type crimes, which sets out the scale of abuse against men and the specific vulnerabilities they face. The Male Victims Position Statement sets out 12 specific commitments to better enable male victims and survivors to come forward and receive the support they need and bring perpetrators to justice. Minister for Crime, Safeguarding and Vulnerabilities, Victoria Atkins said:
“Men can, and do, suffer from crimes such as domestic and sexual abuse. It is a horrendous experience that often goes unrecognised and it is heartbreaking some men feel they cannot report their experiences because of societal views around masculinity.”
Finally, on 13 March the Treasury pledged a further £100 million funding to be made available to police forces in the worst affected areas in England and Wales for knife and violent crime. This was part of the Spring Statement from the Chancellor of the Exchequer, Philip Hammond. The funding will also be invested in Violence Reduction Units, bringing together a range of agencies including health, education, social services and others, to develop a multi-agency approach in preventing knife crime altogether. The units will be based on models used in Glasgow where homicide rates fell by 54% from 2006/07 to 2015/16. The announcement also pointed out:
This is on top of the £970 million of additional money that policing is already due to receive from April 2019, including additional funding that the Chancellor announced at last year’s Budget. Police and crime commissioners have already committed to the recruitment and training of nearly 3,000 extra police officers. Longer-term funding for the police will be confirmed at this year’s Spending Review.
Times Law Awards
At a dinner on 13 March the Times Law Awards 2019 student essay competition winner was announced in a speech by the Lord Chancellor, David Gauke, who chaired the judging panel. For this year’s competition, sponsored by One Essex Court, entrants were invited to write a 1,000-word essay discussing: “Brexit: A threat or an opportunity for UK lawyers and legal London?” Gauke said:
Our winner this year made the argument that disentangling ourselves from the European Union represents an opportunity to underpin the Rule of Law, improve on legal clarity and improve access to justice. What’s clear is that this bright young man will have no problem whatsoever accessing career opportunities in the law.
Please join me in congratulating George Croft.
In second place was Nyasha Weinberg, in third place Alexander Shaw, and the runners up were William Beddows, Sam Dayan and Elijah Bossa.
In his speech Gauke LC made a point of reiterating (as both he and the Lord Chief Justice frequently do) that
“Our justice system is one that is envied across the globe. So much so that the world looks to us to be their counsel and courtroom.”
No doubt the irony of the fact that many of those enviable counsel doing publicly funded work are struggling to cope with increasing workloads and decreasing fees while many of those enviable courtrooms contain buckets to catch the drips from leaking ceilings and long queues for broken toilets was lost in the glitter of the occasion. That is, as it were, the ‘Legal System for the Rest of Us’.
Perhaps next year’s essay competition (to be judged by the Secret Barrister?) can discuss “How can our legal system be the envy of the world if we don’t have enough judges and the fabric of the courts is falling apart?” But then again, a thousand words might not be enough.
Putney Debates 2019
ICLR’s Paul Magrath appeared on Thursday 14 March at this year’s Putney Debates, the theme of which was: The Courts — Friend or Foe? Hosted at St Mary’s Putney, the debates (which revive the notion of the original Putney Debates of the 17th century) are organised by The Foundation for Law, Justice and Society. They ask:
“Since the EU Referendum, the courts have been called upon time and again to make politically charged judgments to break the constitutional impasse. They have been branded ‘Enemies of the People’ and fêted as defenders of centuries-old constitutional principles in equal measure.
Now, as the UK approaches the most significant change to its constitutional settlement for decades, the Oxford Foundation for Law, Justice and Society revisits for the third time the historic Putney Debates, to ask:
What role do we want for our judges in the 21st Century?”
Magrath’s contribution formed part of Session III: How Can We Defend Judicial Independence? We will publish a summary of his talk on the ICLR blog, but the debates as a whole were filmed and will be broadcast via the FLJS site, and there has been talk of including all the talks in a book. If so, we’ll let you know.
Meanwhile, ICLR’s research and development team have been cooking up a new project in the kitchen of technological development. ICLR + R&D = ICLR&D.
Watch this space. It’s all in the ampersand-box.
Dates and Deadlines
Legal Aid at 70
Herbert Smith Freehills LLP (London) — Friday, 5 April 2019, 09 am –5pm.
A conference marking the contribution that civil legal aid has made to the development of the law. Delegates will hear from experts across different fields about key cases and areas for development to improve the law.
Keynote address: Lady Hale, President of the Supreme Court
Tweet of the week
is from Zoey White, with a centenary call to the Bar.
That’s it for this week! Thanks for reading. Watch this space for updates.
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.