Weekly Notes: legal news from ICLR, 2 March 2020

Your latest update of legal news and commentary comes in to land — but not on a third runway at Heathrow; its cargo includes unsettled Europeans, a trolling barrister, an arrested warrant, a continued inquiry, and more powers to the elbow of the long arm of the law.

Photo by Manfred Irmer from Pexels

Planning law

The Court of Appeal has reversed the decision of the High Court over the lawfulness of the government’s decision to approve the construction of a third runway at Heathrow Airport. Opponents had sought judicial review on a number of grounds, but the one that succeeded in R (Plan B Earth) v Secretary of State for Transport & ors [2020] EWCA Civ 214 was the failure of the government to take into account a relevant consideration, namely its commitments under the 2016 Paris Climate Accord. As the court explains in its press summary:

“9. However, we have concluded that the challenges should succeed in one important respect. This relates to the legislative provisions concerning the Government’s policy and commitments on climate change, in particular the provision in section 5(8) of the Planning Act 2008, which requires that the reasons for the policy set out in the ANPS “must … include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change”. We have concluded, in particular, that the designation of the ANPS was unlawful by reason of a failure to take into account the Government’s commitment to the provisions of the Paris Agreement on climate change, concluded in December 2015 and ratified by the United Kingdom in November 2016 (paragraphs 222 to 238 and 242 to 261).

10. We have concluded that the ANPS was not produced as the law requires, and indeed as Parliament has expressly provided.”

The government, whose legal advice was criticised, has said it will not appeal but other interested parties have said they will take the case to the UK Supreme Court, so perhaps this saga is not over yet. For the Prime Minister, however, this decision may offer a merciful release from an undertaking given when he was elected to Parliament in Uxbridge in 2015, when he promised to “lie down in front of the bulldozers” to prevent the runway construction. For former Lord Chancellor and, at the relevant time, Secretary of State for Transport, Chris Grayling, the decision adds yet another judicial review failing. For the new Attorney General, Suella Braverman, it offers yet another opportunity to complain about the court’s powers of judicial review of administrative action, though in practice this decision could have been taken on one of the classic three “Wednesbury” grounds — the failure to take into account a relevant consideration — the other two being the taking into account of an irrelevant consideration, and the making of a decision no rational authority in that position could have made. (See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 2 KB 223, CA, cited variously in the judgment.)

Another way of looking at it is to say the government simply broke its own law, ie the Planning Act 2008. As the judgment says rather pointedly at para 229:

“It is important to stress that this means no more than that the executive must comply with the will of Parliament, as expressed in the terms of section 5(8).”

Brexit

Free Movement has a number of recent articles about the EU Settlement Scheme. Last week the Home Office finally published a long-awaited review by the Independent Chief Inspector of Borders and Immigration which concluded that the Home Office is “managing relatively comfortably” with the millions of European residents applying for post-Brexit settled status. The inspections largely took place between March and June 2019 and the 69-page report was completed in September 2019, but publication was delayed long beyond the statutory eight weeks until now, some 21 weeks later, by which time, the inspector observed, the relevant data had become “historic”.

See Kuba Jablonowski: Government hiding key Settlement Scheme data, inspection report suggests

Although there have now been over three million applications to the Scheme, according to the government (although this includes repeat applications as well as those from non-EU family members),

“there remains a significant percentage of European residents who have not yet applied for settled status. Recent estimates suggest around 15% of eligible Londoners have not applied, or some 40% of Europeans eligible overall”

according to Karma Hickman: see The unsettling Settlement Scheme: what happens if EU citizens refuse to apply?

The government has now announced as part of its paper on the The Future Relationship with the EU that the UK will no longer participate in the EAW scheme. (We raised this possibility in a previous post: see Weekly Notes, 24 February 2020.) Instead, as part of a section entitled Judicial Cooperation in Criminal Matters, the document states,

The agreement should instead provide for fast-track extradition arrangements, based on the EU’s Surrender Agreement with Norway and Iceland which came into force in 2019, but with appropriate further safeguards for individuals beyond those in the European Arrest Warrant.

A recent House of Commons Library briefing paper on the Future of the EAW explained

“The EU’s draft negotiating mandate notes that arrangements for future law enforcement and judicial cooperation will need to take into account the fact that [unlike Norway and Iceland] the UK will be a non-Schengen third country. The UK will no longer allow the free movement of persons. And the draft negotiating mandate states that a third country cannot enjoy the same rights and benefits as Member States. The EU mandate also proposes that any agreement reached should be terminated if the UK were to denounce the European Convention on Human Rights (ECHR), and suspended if the UK repealed domestic legislation that gives effect to the ECHR (namely the Human Rights Act 1998).”

This brings into play questions which have been raised about the present government’s [hostile] intentions in relation to the ECHR and the HRA. A lack of juridical alignment on human rights could scupper cooperation in criminal matters just as much as a lack of regulatory alignment in areas such as trade and financial services.

On Free Movement, Rebecca Niblock comments that “to be a member of a fast-track extradition arrangement, we must have some level of trust in the criminal justice systems of other participants”. She suggests that the Attorney General’s rule of law record could hinder EU extradition deal because of her stated belief that politicians should “take back control” from judges.

Legal services

Last week the international law firm Baker McKenzie shut its doors to its own staff, asking them to work from home as a precaution against the spread of the new coronavirus, Covid-19. The Law Society Gazette reported that “Some 1,100 employees have been asked not to come after a person working at Baker McKenzie recently returned from northern Italy and is now unwell.”

The firm, whose website has its own “Coronavirus Resource Center”, appears to have been a victim of its own current awareness. A recent webinar on the site “shares practical insights” into “significant business disruptions in Hong Kong, Mainland China and globally” and the threat and counter-threat of the use of “force majeure” claims. The firm has also been involved in advising clients in relation to work directly generated from the outbreak:

“Baker McKenzie represented CytoSorbents Corporation (NASDAQ: CTSO), a leader in critical care immunotherapy specializing in blood purification, in an agreement with China Medical System Holdings Limited (CMS) (HKG:0867) to bring CytoSorb® to mainland China to treat critically ill patients with COVID-19 coronavirus infection.”

The Geek in Review podcast from 3 Geeks and a Law Blog has also addressed the subject, with The Geek in Review Ep. 69 — What Should Law Firms Do To Prepare for a Possible COVID-19 Epidemic?

“With all of the news about COVID-19 (Coronavirus) making its way into the United States, it is time for law firms to think about what they are going to do to prepare for a possible outbreak that will affect their business operations. Disaster Recovery and Business Continuity Plans need to be dusted off and updated to manage the different scenarios that may come our with over the next few months. We asked the Association of Legal Administrators interim Executive Director, April Campbell, to discuss what law firms need to be doing to prepare.”

Immediate and local actions include:

  • Restricting travel to hotspots
  • 14-day work from home policies for personnel who have traveled to those areas, or were exposed to others who may have traveled to hotspots=
  • Stress that sick employees stay home
  • Explain proper hand-washing techniques
  • And LOTS OF HAND SANITIZER

There’s some dispute over the effectiveness of hand sanitiser but if it contains alcohol that might help more.

We reported previously (Weekly Notes, 17 February 2020) that the Supreme People’s Court of China had recommended the use of online courts and remote hearing technology to avoid the need for face-to-face hearings.

If Covid-19 makes more of an impact on legal services in the UK, as seems likely given what’s happened to Baker McKenzie, we may need to rethink our reliance on face-to-face court hearings, which inevitably increase the risk of human-to-human contact and, thereby, contagion. Barristers, with their tradition of not shaking hands with one another, may have a slight advantage in the non-transmission stakes, but it must be slight indeed, given the risks of using public transport, sharing consultation rooms, cafeterias, court waiting lobbies and court rooms with multiple members of the public, any one of whom might have been on a bus at the same time as someone who’d been to Northern Italy, Tenerife or Iran in recent weeks, and who had sneezed.

If working from home becomes the new normal, hearing from home may also take precedence over hearing in court. Given that many court attendances result in nothing more satisfying than an adjournment or the news that the court is closed and there are no judges available, this can be seen as a positive benefit. Stay in your dressing gown and surf the cause list from your kitchen.

If I were HMCTS I would seize the day and make the most of this. It does not seem to have issued any specific advice (please let us know if it has) but the Government’s Action Plan [updated 3 March] states:

“The Ministry of Justice’s HM Courts & Tribunal Service have well established plans to deliver key services to protect the public and maintain confidence in the justice system.”

The Action Plan also recalls that:

“New regulations introduced in England under public health legislation provide new powers for medical professionals, public health professionals and the police to allow them to detain and direct individuals in quarantined areas at risk or suspected of having the virus.”

This is presumably a reference to the Health Protection (Coronavirus) Regulations 2020 which were whizzed through Parliament the week before last.

Public inquiries

It was announced last week that witnesses will not face prosecution based on evidence given by them at the Grenfell Tower Fire inquiry. The immunity was conferred in the form of an undertaking by the Attorney General, Suella Braverman QC MP, on the basis that “it will not jeopardise the police’s investigation or prospects of a future criminal prosecution”. The immunity had been opposed by lawyers for the victims, but the risk of prosecution appeared to be harming the inquiry’s prospects of getting at the full truth of what happened. The Inquiry had forwarded a request to Braverman’s predecessor, Geoffrey Cox QC, early last month. According to a report in the Financial Times,

“the chair of the inquiry, Martin Moore-Bick, and panel member Thouria Istephan, said: ‘We have come to the conclusion that it will not be possible for the inquiry properly to fulfil its terms of reference if witnesses do not have an assurance that the answers they give to questions will not be used in furtherance of criminal proceedings against them.’”

The AG’s announcement explains:

“The undertaking means that no oral evidence provided to the Inquiry by individuals during modules 1, 2 and 3 of phase 2 will be used against the individual in any criminal proceedings. Additionally, the evidence cannot be used for the purpose of deciding whether to bring such proceedings against that individual. However the undertaking does not prevent witness evidence from being used against corporations in any future prosecution.

In making the decision, the Attorney General took into consideration all representations received including those from victims and their representatives. She also consulted the Director of Public Prosecutions, the Health and Safety Executive and the Metropolitan Police Service.

The Attorney General has concluded that the undertaking is needed to enable the Inquiry to continue to hear vital evidence about the circumstances and causes of the fire. Without it she has concluded that some witnesses would be likely to decline to give evidence.”

The Attorney General’s Office has also published a factsheet about the decision, available here.

See also: Guardian, Grenfell witnesses will not have their evidence used against them

Legal profession

Once a barrister, always a barrister. The case of Diggins v Bar Standards Board [2020] EWHC 467 (Admin) establishes, among other things, that someone who has been called to the Bar and is a member of one of those Honourable Societies known as the Inns of Court, continues to be regulated and subject to the disciplinary jurisdiction of the Bar Standards Board, even though they do not currently hold a practising certificate. That means they are subject to the Code of Practice of the Bar, including Core Duty 5 which states:

“You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession…”.

Martin Diggins, an unregistered (ie non-practising) barrister, who had been called to the Bar by Middle Temple in 1992, was the subject of disciplinary proceedings for breaching Core Duty 5 in respect of an offensive tweet which he posted, under the handle “@martindiggins”, on 25 October 2017. The content of the tweet and the circumstances in which he posted it need not concern us: you can read about it in the first two paragraphs of Mr Justice Warby’s judgment of 28 February 2020. (There is also a useful summary of the case by Neil Rose on Legal Futures: Barrister fails in appeal over “seriously offensive” tweet.)

That judgment gave reasons for the dismissal by the High Court of an appeal by Mx Diggins from the decision of the BSB that the tweet amounted to Professional Misconduct, in respect of which he was reprimanded and fined £1,000. The court was not re-hearing the complaint; it was merely reviewing the disciplinary process to see if it contained an error of law or fact or discretion which affected the outcome. If the decision was properly made, then it would not be for the court to substitute a different view.

Warby J concluded that Mx Diggins had failed to identify any misdirection or error of law on the part of the panel in this case. In particular, he rejected the argument that the Tweet was a purely private matter that the BSB had no business to be policing. It was, the panel had said, (1) a tweet to the world at large, which was (2) “seriously offensive”, accompanied by (3) a link to the appellant’s website, on which he identified himself as a barrister, which was (4) likely to diminish trust and confidence in the profession. The judge said he had “reservations about the third element of this reasoning” but that, “the panel’s decision was not wrong in this respect”.

What this means in practice is that anyone called to the Bar can, theoretically, for the rest of their life, be disciplined by the Bar Standards Board if their conduct brings the profession into disrepute. No doubt the fact that Mx Diggins (as he perhaps tendentiously insisted on being entitled) drew attention to his barristerial status via his profile in the blog to which he linked in the tweet added to the likelihood of his being disciplined by the BSB, but that appears not to have been determinative of the existence of their jurisdiction.

However, a person who does not call attention to their barristerial status is perhaps less likely to be the subject of a complaint to the barristers’ disciplinary body. By the same token, they are also less likely to diminish the “trust and confidence which the public places in … the profession”. So ultimately it is not so much a question of whether you practice or are registered, but the fact that you hold yourself out to be a barrister, and supposedly member of an Honourable Society, that behoves you to behave like one.

Police

Speaking at the Association of Police and Crime Commissioners and National Police Chiefs’ Council Partnership Summit 2020, the Home Secretary Priti Patel announced the launch of a consultation on a “new covenant to recognise the service and sacrifice of the police”. She began by setting out her agenda:

“This is an ambitious and dynamic new government with law and order at its heart and we make no apologies for that.

Our mission is clear — to deliver on the people’s priorities: to cut crime and deliver the safer streets the public want.

She also said

“we’re setting up a new Royal Commission to review the effectiveness of the criminal justice system — looking at ways to slash bureaucracy and boost public confidence.”

Presumably that’s a different commission from the one that’s going to tackle the overweening powers of the courts (in public law matters) that the Attorney General seems to want.

There’s money too: “an additional £41.5 million surge funding to help 18 forces drive down the scale of the violent crime we are seeing in our streets”. But the key announcement was this idea of the Covenant, which will (groan) be “enshrined in law”. She said:

“Starting today, we are launching our Police Covenant consultation.

I want your views on our plans to boost physical protection, wellbeing, and support for families of our brave officers.

This Covenant is a commitment to you and your exceptional officers who exemplify the very best of public service.

I encourage everyone to contribute to this consultation.

And it is important that we understand not just what you need, but also what works for you, because we intend to enshrine it in law.”

The consultation, which will run for 8 weeks, is being launched to seek views on implementing a Police Covenant in England and Wales. It covers the themes of physical protection, health and wellbeing and support for families, as well as the scope and wording of the covenant. Views are also being sought on how officers should be publicly recognised for their bravery and work.

Forensic Science

The Forensic Science Regulator (FSR), Dr Gillian Tully has warned that skills shortages within forensic science sector pose a risk to criminal justice and said gaps in quality need to be resolved to prevent unreliable evidence being used in court. The regulator’s annual report also found that a digital skills shortage risks the sector falling behind criminals who are taking advantage of developing technology.

Dr Tully has reiterated calls for statutory enforcement powers to protect the criminal justice system. The regulator currently has no legal powers to enforce compliance with the required standards.

The annual report provides an update on developments between November 2018 and November 2019, and sets priorities for the year to come. Issues include:

  • a lack of accreditation for CCTV comparison and a danger of experts straying outside their area of expertise
  • over 1,100 DNA profiles stored on the National DNA Database (NDNAD) have been confirmed as contaminated by police officers and staff, and are being removed
  • constraints on legal aid fees and a lack of enforcement powers have affected the ability of defendants to access quality-assured forensic science expertise

Recent publications

New podcast in the Get Legally Speaking series that explains the law to newcomers. In this episode, Barrister Joanna Hardy and Hatti Suvari talk about what Barristers do, the difference between Barristers and QCs, why they wear wigs and black cloaks, and who the skilled clerks are that manage them. They also discuss the traditional route to becoming a Barrister, whether or not they can be directly instructed by the general public, and who governs the Bar and Barristers in practice.

Court reporting has traditionally been a staple of local newspaper journalism, but in recent years both economic and technological pressures have pushed it into sharp decline. The Hereford Times is one of those who continue the tradition, and in this article editor John Wilson explains why. Partly, of course, it’s to get clicks to their website.

“But there is a more profound reason why we publish court reports. It is because we passionately believe in one of the most basic principles of British justice — that should be seen to be done.

Without our reporting very few people in Herefordshire could see that accused people are being given a fair hearing, adequate punishment for their crimes, or a chance to reform and make amends.”

He also explains why names and addresses are included, and sometimes images, to avoid the risk of misidentification in criminal matters.

You can now watch a seminar hosted on 10 February by the Information Law and Policy Centre at the Institute of Advanced Legal Studies in London, discussing the impact of current court reforms on equality, fairness and access to justice.

The panel was chaired by Dr Nora Ni Loideain, Lecturer in Law and Chair of the centre, and included Gill Phillips, Director of Editorial Legal Services, Guardian News and Media, Dr Judith Townend, Senior Lecturer in Media and Information Law, University of Sussex, Dr Kate Leader, Lecturer in Law, University of York, and Penelope Gibbs, Director, Transform Justice.

Another podcast, this time the first of a new series from the Law Society. Ellie Cumbo, head of public law at the Law Society, discusses the issues thrown up by the famous ‘gay cake’ case with employment silk Robin Allen QC, who appeared for for Mr Lee in Lee v Ashers Baking Co Ltd [2018] UKSC 49; [2018] 3 WLR 1294.

ICLR News

It’s now even easier to sign up for our weekly email update of newly published law reports and case summaries, even if you’re not a paying subscriber to our service. Just go to our home page at www.iclr.co.uk and look for this card on the right of the page.

NB. If you still see the card for our Leading Planning Cases book, don’t worry. It just means you need to clear your cache: check your browser settings to find out how to do this. Next time you load the page, the above ad should appear instead.

For anyone still interested in the Leading Planning Cases book, we have added more information on the website, including FAQs about what cases are included and where to buy the book.

We also have some new entries in our growing Glossary of legal terms and concepts, so you can find out what exactly Malum in se means, what’s the difference between Mens rea and Mens sana in corpore sano, and the difference between Open-source and Open data. Have a rummage, and let us know if there’s something you can’t find and want to know about: feedback@iclr.co.uk

Dates …

Gresham College , Holborn— Thursday 5 March 2020, 6 to 7 pm

Professor Jo Delahunty QC provides “an insider’s brutally honest guide to what it’s like to be a self-employed barrister — the highs and lows of the career, the work behind the scenes that makes a difference to outcomes in court, and the art of persuasion in it.”

Find out more via Gresham College website, and find links to video stream and transcripts of this and other excellent talks. The talks are all free.

No reservations are required for this lecture. It will be run on a ‘first come, first served’ basis. Doors will open 30 minutes before the start.

Cavendish Conference Centre, London, 11 March 2020

If you know all these acronyms, then this is the conference for you: STaRs, COLPs, AML, PII, SQE, SARs, COFAs…. and much more…

How have the first three months of the SRA’s Standards & Regulations (STaRs) been for you? Have you got to grips with the changes or are they causing you headaches? Have you had time to consider all the other regulatory challenges, such as compliance with the Fifth Money Laundering Directive, which became law on 20 December 2019 and entered into force just three weeks later?

This year’s Legal Futures Compliance and Regulation Conference is focused on the practical impact of these and other changes facing law firms of every shape and size. It is an opportunity to hear from and quiz the decision-makers, COLPs, COFAs and others on the frontline of ensuring solicitors stay on the right side of the SRA’s enforcement policy.

Target figure of £10,000 needed by 29 March 2020

The campaign is to support Harry’s parents in their claim for Judicial Review against Foreign Secretary Dominic Raab and the Northamptonshire Police over their decisions to allow Anne Sacoolas, the wife of an American who was working at the United States facility at RAF Croughton, and who was driving on the wrong side of the road when involved in the motor accident in which Harry lost his life, to leave the country and escape justice on the grounds (which the claimants say is wrong) that she had diplomatic immunity.

… and Deadlines [delayed]

The call by Sir Andrew McFarlane, President of the Family Division, for evidence to inform the panel in his Transparency Review has been extended until 30 April. The original deadline had been today, 2 March, and provided a comparatively short window for entries, having only been announced on 3 February 2020.

The Transparency Review panel will review of the current arrangements which regulate access by journalists and the public to, and the reporting of, information concerning proceedings in the Family Court.

The Ministry of Justice (MoJ) has announced that implementation of the whiplash reforms will be delayed from 6 April to 1 August 2020. Reporting the announcement, Legal Futures noted that “While stressing it remained committed to the changes, [the MoJ] has also ditched the alternative dispute resolution (ADR) element of the new portal that was meant to help resolve liability disputes.”

The reforms, proposed some years ago, have been the subject of intense lobbying and some controversy in the personal injury litigation world.

And finally…

Pupil barrister Fab Aruci asks about the cost of kit…

That’s it for this week. Thanks for reading, and thanks for the tweets and blogs and links to content from which this post was derived.

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.

The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.