Weekly Notes: legal news from ICLR, 18 October 2021
This week’s roundup of legal news and commentary includes politics, human rights, courts, and legal history. Please recent case law and commentary.
Reform of the Act
As we noted in a previous roundup, the new Lord Chancellor Dominic Raab MP is keen to “overhaul” the Human Rights Act 1998, and over the weekend he published a piece in the Sunday Telegraph promising to “stop Strasbourg dictating to us”. There has not unnaturally been some commentary both on the appropriateness of using his department’s limited resources to conduct such a frivolous undertaking at a time when the justice system is in crisis, and as to the specific scope and constitutional validity (legality, even) of the reforms proposed. See, inter alia,
- Prof Mark Elliott, Public Law for Everyone: Undermining the rule of law? A comment on the Justice Secretary’s Sunday Telegraph interview
- David Allen Green, Law and Policy Blog: When the justice system is in crisis, Dominic Raab should not be using finite ministerial time and scarce departmental resources to attack the Human Rights Act and Lord Chancellor, there is already a mechanism for the law to be changed: it is called Parliament
- Joshua Rozenberg, A Lawyer Writes: Reviewing judicial review — How far will Raab go?
But the apparent zeal with which the Lord Chancellor is throwing himself into this project may help explain why he lost his apparently safe job at the Foreign Office after the Prime Minister had (in the time-honoured manner of a premier about to sack his minister) expressed his ‘absolute’ confidence in Raab. Commenting on Raab’s appointment in the London Review of Books, Francis FitzGibbon QC wondered:
“If he failed at the Foreign Office, why give him another cabinet position? And what had Buckland done wrong to get the sack, with no compensatory job? The answer may lie in the strident nationalism and populist-ideological bent of the Johnson government and of Raab himself.”
FitzGibbon also noted how Buckland, a “proper criminal barrister”, had striven to obtain more funding for the struggling criminal justice system and had “quietly ditched Tory ambitions to reduce the court’s powers to carry out judicial review”. In other words, Buckland was too “wet” and Raab, by contrast, more of a hawk. And so, FitzGibbon concluded,
“If the government wants to be seen to be ‘taking control of our laws’ by weakening, even severing, links with the European convention and its court, Raab is the man for the job.”
Incidentally, Parliament was to have discussed the Judicial Review and Courts bill this week but, as Joshua Rozenberg explained in his blog, the debate has been postponed while the House pays tribute to Sir David Amess, the Conservative MP for Southend-on-Sea, who was stabbed to death at a constituency surgery meeting on Friday.
‘Lessons learned’ report
A report of the Health and Social Care Committee and of the Science and Technology Committee on the Government’s handling of the coronavirus pandemic notes that “in 2020 the UK did significantly worse in terms of covid deaths than many countries” and attempts to identify why that might have been the case. It makes a number of criticisms of the state of the UK’s preparedness of for the pandemic and the government’s response, while acknowledging that in some areas, such as the vaccine roll-out, the response was better than elsewhere.
The report focuses on six areas: the country’s preparedness for a pandemic; the use of non-pharmaceutical interventions such as border controls, social distancing and lockdowns to control the pandemic; the use of test, trace and isolate strategies; the impact of the pandemic on social care; the impact of the pandemic on specific communities; and the procurement and roll-out of covid-19 vaccines. On all of these apart from the last, there were failures and mistakes from which it is important to learn.
In particular, the failure to adopt a more stringent containment policy at the start betrayed a “fatalistic approach” and involved “a degree of groupthink” that meant “we were not as open to approaches being taken elsewhere as we should have been”:
“Accountability in a democracy depends on elected decision-makers not just taking advice, but examining, questioning and challenging it before making their own decisions. Although it was a rapidly changing situation, given the large number of deaths predicted it was surprising that the initially fatalistic assumptions about the impossibility of suppressing the virus were not challenged until it became clear the NHS could be overwhelmed. Even when the UK strategy did change dramatically in March 2020, it was because of domestic concern about the NHS being overwhelmed rather than a serious decision to follow emerging international best practice.”
Serious mistakes were made over testing:
“Despite being one of the first countries in the world to develop a test for covid in January 2020, the United Kingdom failed to translate that scientific leadership into operational success in establishing an effective test and trace system during the first year of the pandemic.”
The failures to protect the care sector and the disproportionately high mortality rates among certain disadvantaged communities were also highlighted in the report.
- Each Other, Parliamentary Inquiry Condemns UK Government’s Handling Of Coronavirus
- BBC, Covid: UK’s early response worst public health failure ever, MPs say
Was Boudica a terrorist?
Apparently not. A moot held by the educational charity Classics for All at the Supreme Court has concluded that the Queen of the Iceni tribe who led a fierce rebellion against the Romans in Britain in the years 60–61 CE was not guilty of “being a terrorist contrary to section 1 of the Terrorism Act 2000”.
The moot, live-streamed from the Supreme Court for the first time, was presided over by Lord Stephens (Justice of the Supreme Court and former Lord Justice of Appeal in Northern Ireland) with Alison Morgan QC counsel for the prosecution, and Thomas Grant QC counsel for the defence. The indictment set out the following particulars of offence:
“BOUDICA, between the first day of January 60 and the first day of January 62, used action involving serious violence against persons, namely the inhabitants of Camulodunum, Londinium and Verulamium, and/or involving serious damage to the property of the same persons and to public property, and/or endangering the lives of those persons, and/or creating a serious risk to their health and safety, in that she raised an army and led, instructed and caused it to destroy Camulodunum, Londinium and Verulamium, and to kill the inhabitants, and her action was designed to influence the government of Rome or to intimidate the public or a section of the public, for the purpose of advancing a political or ideological cause, namely Iceni dissidence and secession.”
Classics for All was established to reverse the decline in the study of classics, particularly in state schools. It aims to raise the aspirations and build the cultural capital of young people from all backgrounds by teaching them about the ancient world.
See also: The Times, Supreme Court clears Boudica of terrorism in classic day for justice
New digital support service
After running a competitive tender process, HM Courts and Tribunals Service have selected the company We are Digital to manage a new national service, starting this month, to deliver support across England, Wales (including support in Welsh) and Scotland (for tribunals only) for those who might not otherwise have the ability to participate in and benefit from online justice services. According to the HMCTS announcement:
“Support will be delivered face to face through community and advice centres, such as Citizens’ Advice and law centres. It will also be available over the phone or via online software, such as Skype. In parallel, staff at our Courts and Tribunals Service Centres continue to deliver lighter-touch digital support over the telephone.”
The service will benefit from a successful pilot scheme run by Good Things Foundation. The dangers of digital exclusion have been known about for a long time, ever since HMCTS began its ambitious court digitisation programme five years ago. The pilot scheme dates back to 2017. So it is disappointing that they have taken this long to find and pay for what one hopes is a lasting and effective solution to the problem.
See, for example, Transparency Project: Socially distanced courts for the digitally excluded
A report on the Commonwealth Law Conference 2021, Nassau
The President of the Commonwealth Lawyers Association, Brian Speers, reports on the conference held last month in the Bahamas, attended in person by over 200 delegates, many of whom had travelled considerable distances, including from Africa, the Caribbean and Papua New Guinea. The talks included “an eclectic mix of legal contributions from around the Commonwealth” and the atmosphere sounds, from his report, to have been friendly and relaxed:
“The Bahamas Police band proved to be a particular highlight to break up the various speeches. Not only were their tunes joyful and rousing, but they even matched music to movement as they swung around their tubas and trumpets and generally brought a great Bahamian warmth to our Opening Ceremony.”
We are pleased to note that there was a “generous reception by the Bar of England & Wales” on the first evening and that Lord Justice Dingemans (who is currently Lead Judge for International Relations) played a significant role in helping to manage the conference, among other British representatives.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.3:
IMMIGRATION — Human trafficking — Victim: R (KTT) v Secretary of State for the Home Department, 12 Oct 2021  EWHC 2722 (Admin);  WLR(D) 523, QBD
SOCIAL SECURITY — Welfare benefits — Universal credit: R (Salvato) v Secretary of State for Work and Pensions, 13 Oct 2021  EWCA Civ 1482;  WLR(D) 519, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.3 includes:
UK Supreme Court Blog: New Judgment: Anwar v The Advocate General for Scotland  UKSC 44, SC(Sc)
Law & Religion UK: High Court rules out 28 identical divorce petitions: In re Yorston  EWFC 80;  WLR(D) 517, Fam Ct
RPC Perspectives: High Court refuses permission for unissued contempt application where breach of freezing order only technical: Pharmagona Ltd v Taheri  EWHC 2537 (Ch), Ch D
Transparency Project: Parental Alienation — what can we tell from published judgments? A and B (Parental Alienation) (Nos 1–4)  EWHC 3366 (Fam)
Panopticon blog: FOIA and security bodies: running sections 23 and 24 together: Foreign, Commonwealth and Development Office v Information Commissioner  UKUT 248 (AAC), UT (AAC)
UK Human Rights Blog: Can AI qualify as an “inventor” for the purposes of patent law? Thaler v Comptroller General of Patents, Designs And Trade Marks  EWCA Civ 1374, CA
Inforrm's blog: Law and Media Round Up — 18 October 2021: A v Burke And Hare  UKEAT 2020–67, EAT
Recent publications of interest
Ryanair, chargebacks, unfair terms, and lawful act duress
Eoin O’Dell, on the Cearta.ie blog, discusses the conduct of Ryanair in forcing customers, who claimed a chargeback from their credit card companies after being refused a refund from the airline when prevented from travelling by lockdown restrictions, then to repay that chargeback before being allowed to board a subsequently purchased flight. He considers their possible claims under the Unfair Contract Terms Regulations or by reference to the doctrine of duress.
Reporting Financial Remedies Cases: The Journalist’s View
Paper by Sir James Munby, published by the Transparency Project, delivered at the at the At A Glance Conference in London on 13 October 2021. The Former President of the Family Division discusses transparency and accountability in the family courts, particularly in relation to financial remedies cases, complains of a lack of publicly accessible information and calls for “a dedicated FRC website containing, or providing links to, everything needed by a user of FRC, professional or lay”.
See also, by Louise Tickle, an actual journalist’s speech on this topic at the same conference.
Reforming UK data protection laws — the ICO responds
The Information Commissioner’s Office responded to the government’s proposals for reforming data protection laws earlier this month, and in this post on the Panopticon blog, Anya Proops QC discusses the key points in that response.
“As expected, the core thrust of the response is that, in pressing for a new more business and particularly tech-friendly data protection regime, the Government should be careful not to throw the data privacy baby out with the bathwater.”
Can AI receive patent protection?
Law Pod UK episode, presented by Rosalind English, on recent decisions of the courts in this jurisdiction and elsewhere on the question whether a patent can be awarded for an invention made by Artificial Intelligence without a traditional human inventor. She discusses the case with Ryan Abbott, author of The Reasonable Robot: Artificial Intelligence and the Law published last year.
Reliance on secondary legislation has resulted in significant problems: it is time to rethink how such laws are created
The legislative challenges posed by Brexit and the unusual circumstances of the pandemic have led to a significant increase in the use of secondary legislation. The former Head of the Government Legal Department, Sir Jonathan Jones QC, via the Constitution Unit Blog argues that mass use of statutory instruments is problematic, and that there should be a fundamental rethink of how and when they are used, debated and approved. He calls for a new Statutory Instruments Act to enable this ‘reset’.
Coming soon: a major platform upgrade
Next month we will be launching a major upgrade to our online case law database, when ICLR.3 becomes ICLR.4
As well as a complete refresh of the user interface, ICLR.4 incorporates a significant innovation in search technology. Case Genie is a revolutionary new search tool that uses Artificial Intelligence in the form of Natural Language Processing to analyse a user’s own document in order to identify the legal concepts and issues in it and then suggest cases from our database that might be relevant.
You can read more about the new platform on our blog: Coming soon … ICLR.4 will transform case law research.
Dates and Deadlines
Play: The Shake
MS Teams: Thursday 4 November 2021 at 7 p.m.
Play written by His Honour Judge Stephen Wildblood QC about a young baby who gets shaken and badly injured whilst in the care of her parents. The family portrayed in the play are involved in care proceedings. The play shows the social circumstances, so frequently encountered in criminal and Family proceedings, which lead to this sort of injury.
More details here, via Child Protection Resource.
Legal Futures Innovation Conference
In Person or Online: 16 November 2021, Cavendish Conference Centre, London
Many aspects of legal life have changed in the last 18 months but the need to innovate has not — if anything, it has become more urgent. This year’s conference will reflect that change and discuss alternative business structures and cutting edge developments in the provision of legal services.
Programme details and booking information here.
The Annual Bar and Young Bar Conference 2021
Online: Wednesday 17 — Friday 19 November
Grand Connaught Rooms, London and live streamed online: Saturday 20 November
The theme of this year’s conference is Recovery, growth and transformation. See the Bar Council website for full schedule and booking details, including discounts available for students, pupils, barristers in income bands 1–2 and Bar Representation Fee subscribers.
Of particular interest to us is a session on Saturday, Making headlines: The role of journalism in shaping the justice system, discussing the role of the media and public perceptions of the justice system. Featuring speakers Jonathan Ames, Legal Editor, The Times; Lizzie Dearden, Home Affairs & Security Correspondent, The Independent; Sian Harrison, Law Service Editor, PA Media; Tristan Kirk, Courts Correspondent, Evening Standard.
Tweet of the week
is from barrister Alexandra Scott and offers a somewhat inflated view of the scales of justice
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.