Weekly Notes: legal news from ICLR, 20 December 2021

Photo by Jeffrey Czum from Pexels

Human Rights

Modern Bill of Rights proposal

The government has issued a consultation on its proposals to revise the Human Rights Act and replace it with a Bill of Rights, which they say is intended to “restore a proper balance between the rights of individuals, personal responsibility and the wider public interest”.

This consultation is aimed at legal practitioners, experts and academics in human rights law, human rights advocates, and anyone else interested in the framework of human rights law. Responses must be submitted by 8 March 2022 by filling in the online response form or writing to the Ministry of Justice.

The proposals being put forward by the Lord Chancellor, Dominic Raab, who some years ago wrote a book about the Human Rights Act, The Assault on Liberty — What Went Wrong with Rights (Harper Collins, 2009). It’s evidently a subject close to his heart. But he’s not the only one to have doubts about the effect of the HRA and European human rights case law on the development of the common law. The media have chafed against the development of privacy rights, under article 8 of the Convention, which protects the right to private and family life, correspondence etc; as against that of freedom of expression under article 10. The Home Office have chafed against the restriction on deportation of foreign criminals et al, owing to the priority apparently given to their human rights over the safety of the public, although that is not a balance that needs to be struck in the case of domestic criminals. Politicians have chafed against the very fact that cases may be determined by, or under case law developed by, a foreign (ie international) court, whose judges, just like our own, are “unelected”.

The proposals in the consultation document “will remain faithful to the basic principles of human rights” but will “restore common sense to the application of human rights in the UK”. There is no intention to withdraw from the Convention or, presumably, the jurisdiction of the Strasbourg court, but the approach to its jurisprudence will be less, as it were, slavish. Instead, the proposals seek to “reinforce the supremacy of the UK Supreme Court in the interpretation of rights”. And in terms of domestic decision-making, “we will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society.”

The consultation follows publication of the report of The Independent Human Rights Act Review (IHRAR), chaired by Sir Peter Gross, which also made a number of recommendations. They are not the same, and appear to be more mild in scope, than those outlined in the government’s consultation. We leave it to others to analyse them in detail.

Joshua Rozenberg, A Lawyer Writes: A bill of rights?

David Allen Green, Law and Policy Blog: Taking Human Rights Act reform seriously

Richard Ekins and John Larkin QC, Policy Exchange: How and Why to Amend the Human Rights Act 1998

Conor Gearty, LSE blog: The consultation on the Human Rights Act: an incoherent proposal full of grand but empty gestures, and some nastiness

Law Society Gazette: Chancery Lane [ie The Law Society] attacks bill of rights plan

Helen Fenwick, The Conversation: Five takeaways from the UK government’s proposal to replace the Human Rights Act

Evidence

Secret Justice Review

The government’s Review of closed material procedure in the Justice and Security Act 2013 (which should have taken place five years after the Act came into force) was finally launched in February this year, the call for evidence was not made until April and the deadline extended to 30 June 2021. The reviewer is former High Court judge Sir Duncan Ouseley.

The use of closed material procedure (CMP) is set out in sections 6 to 11 of the 2013 Act, about the disclosure of sensitive material in civil proceedings. In particular, section 6 of the Act empowers senior courts (the Supreme Court, the Court of Appeal and the High Court (including in Northern Ireland), and the Court of Session (in Scotland)) to make a declaration that the case is one in which a closed material application may be made in relation to specific pieces of material, the disclosure of which would be damaging to national security. An application for the declaration may be made by either the defendant or the claimant and a court can also make a CMP declaration of its own motion. For further information, see: Use of closed material procedure reports

This week Angus McCullough QC published on the UK Human Rights Blog the response of the Special Advocates to the Government’s submission to the Review — although the government’s submission remains unpublished. Previously, the Special Advocates (of whom he is one) had made a detailed submission to the Reviewer based on their collective experience of CMPs under the JSA, published on the same blog: Secret Justice — The Insiders’ View.

McCullough also publishes the submission, drafted by Dr Lawrence McNamara, of the University of York and Bingham Centre for the Rule of Law; and of JUSTICE.

Police

Extra funding promised

Policing will receive a funding boost of up to £1.1bn next year to drive down crime and “deliver safer streets for all”, Home Secretary Priti Patel announced on 16 December. According to the announcement: “The 2022/23 funding package represents an inflation-busting 7% cash increase on last year and means policing will receive up to £16.9 billion in total in 2022/23.”

One needs to be careful talking about “inflation-busting”: the inflation rate has risen rapidly in the last few months, as fuel shortages, supply-chain woes and wage increases have forced it upwards; at the time of writing the consumer prices index or CPI is at 4.6% (according to the Office of National Statistics) while the more traditional measure of the retail prices index or RPI inflation rate was 7.1% in November 2021, up from 6.0% in October (according to the latest House of Commons Research Briefing on economic indicators). On that basis the funding package, far from busting, is barely managing to keep up.

Nevertheless, it’s all part of “the government’s mission to deliver fewer victims” which is an odd way of putting it, along with “safer neighbourhoods, and a more secure country”.

Victims are a hot topic and probably a safe one too (see last week’s roundup about the new so-called Victim’s Law) but the problem with focusing on the idea of “fewer victims” is that it needs to be part of a joined up policy. Really you want to focus on fewer criminal acts, and the best way of doing that, apart from prevention, is to speed up detection, prosecution, punishment and rehabilitation of offenders. These also need resources. To be fair, the government has devoted more resources to prisons recently (see last week’s roundup) and to the justice system to reduce the historic backlog of cases.

When it comes to the police, the problems include an outdated computer system (another problematic government IT project) and lack of recruitment (forces still haven’t restored the numbers lost during the austerity years). It’s not clear how recent tough talk about the war on drugs and the questionable practice of ministers dressing up in uniform for photo-op police raids actually promote any general sense of greater safety on the streets or comfort victims, but it certainly helps distract the media from more embarrassing problems for politicians. (Sorry to sound so cynical, but it is the season of Bah Humbug!)

ITV: Boris Johnson joins Merseyside police on drugs bust as he vows to wipe out county lines

Government policy paper (9 December): From harm to hope: A 10-year drugs plan to cut crime and save lives

David Allen Green, Law and Policy Blog: Why the prime minister and other politicians should not be wearing police uniforms

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

CHILDREN — Medical treatment — Consent: E v Northern Care Alliance NHS Foundation Trust (F v Somerset NHS Foundation Trust), 14 Dec 2021 [2021] EWCA Civ 1888; [2021] WLR(D) 627, CA

CONFLICT OF LAWS — Jurisdiction under European Union Regulation — Matters relating to insurance: Hill v Generali Biztosító Zrt, 14 Dec 2021 [2021] EWHC 3381 (QB); [2021] WLR(D) 629, QBD

EXTRADITION — “Unjust or oppressive” — Physical or mental condition: Government of the United States of America v Assange, 10 Dec 2021 [2021] EWHC 3313 (Admin); [2021] WLR(D) 624, DC

IMMIGRATION — Right to reside — Non-European Union national: Begum v Secretary of State for the Home Department, 10 Dec 2021 [2021] EWCA Civ 1878; [2021] WLR(D) 631, CA

NATIONALITY — British citizenship — Acquisition: R (Vanriel) v Secretary of State for the Home Department, 16 Dec 2021 [2021] EWHC 3415 (Admin); [2021] WLR(D) 633, QBD

OSTEOPATH — Discipline — Unacceptable professional conduct: Wray v General Osteopathic Council, 17 Dec 2021 [2021] EWCA Civ 1940; [2021] WLR(D) 636, CA

PRACTICE — Hearing — Whether in private: CDE v NOP, 14 Dec 2021 [2021] EWCA Civ 1908; [2021] WLR(D) 632, CA

PRACTICE — Unfair prejudice petition — Strike out: King v Kings Solutions Group Ltd, 17 Dec 2021 [2021] EWCA Civ 1943; [2021] WLR(D) 635, CA

SHIPPING — Limitation of liability — Damage by anchor: Splitt Chartering APS v Saga Shipholding Norway AS (The Stema Barge II), 15 Dec 2021 [2021] EWCA Civ 1880; [2021] WLR(D) 625, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

UK Labour Law: The right to trade union representation: Kostal UK Ltd v Dunkley [2021] UKSC 47; The Times, 24 November 2021, SC(E)

Free Movement: NHS charging: basing treatment decisions on immigration status is lawful: R (OK) v Royal Free London NHS Foundation Trust [2021] EWHC 3165 (Admin), QBD

UK Human Rights Blog: USA successfully appeals Assange case: Government of the United States of America v Assange [2021] EWHC 3313 (Admin); [2021] WLR(D) 624, DC

Free Movement: Man who has never left the UK avoids deportation after seven-year legal battle: Akinyemi v Secretary of State for the Home Department [2021] UKAITUR DA005742014, UT

RPC Perspectives: The Medical Defence Union — insurance premium rebates not taxable receipts: Medical Defence Union Limited v Revenue and Customs Comrs [2021] UKUT 249 (TCC); [2021] STC 2235, UT (TCC)

Law & Religion UK: Social media, anti-Zionism and unfair dismissal: Keable: London Borough Of Hammersmith And Fulham v Keable [2021] UKEAT 2019–000733, EAT

UK Supreme Court Blog: New Judgment: R (Elan-Cane) v Secretary of State for the Home Department (Human Rights Watch intervening) [2021] UKSC 56, SC(E)

Nearly Legal: Property Guardian firms, HMOs, licences, penalties and RROs — it is all here: Global 100 Ltd v London Borough of Hounslow (unreported), FTT

Dates and Deadlines

Law Term Dates

Michaelmas term ends on 21 December 2021. The dates for 2022 are:

Hilary: Tuesday 11 January to Wednesday 13 April 2022
Easter: Tuesday 26 April to Friday 27 May 2022
Trinity: Tuesday 7 June to Friday 29 July 2022
Michaelmas: Monday 3 October to Wednesday 21 December 2022

Webinar: Career Pathways to Becoming a Supreme Court Justice

Online — Thursday, 13 January 2022, 17:15–18:15 GMT

The UK Supreme Court is hosting a webinar on career pathways to becoming a Justice. The event aims to provide early- and mid-career legal professionals with an opportunity to learn more about the appointment process and what it takes to become a well-qualified candidate, enabling aspiring future Justices to kick-start long-term career planning.

For more details, see Eventbrite.

And finally…

Tweet of the week

Is a reminder that it used to be said no one could hold a candle to Lord Denning, his judgments were always so illuminating…

That’s it for this term. Thanks for reading, and thanks for all your tweets and links. Enjoy the vac and keep safe and well.

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.

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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.

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The ICLR

The ICLR

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.

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