Weekly Notes: legal news from ICLR, 21 July 2023
This week’s roundup of legal news includes legislation on human rights, crime, immigration and online safety; the courts and the judiciary; and the latest case law and commentary.
Bills, bills, bills…
The government under the prime ministership of Rishi Sunak has refocused its legislative objectives in some regards, while maintaining much of the existing wish list of ambitious reform. As the government reflects on a decidedly mixed bag of results from recent by-elections, we round up a few of its more notable legislative endeavours.
A major casualty, following Dominic Raab’s replacement by Alex Chalk as Lord Chancellor, has been Raab’s ill-conceived Bill of Rights Bill (BORB), which the government finally announced it was dropping at the end of last month. The move was welcomed by Law Society president Lubna Shuja, who described the Bill as “a step backwards for British justice”, adding:
“Scrapping the Bill is the right decision as it would have created an acceptable class of human rights abuses, weakened individual rights and seen the UK diverge from our international human rights obligations.”
The Bill, introduced over a year ago, had been ill-received in many quarters and never got to a second reading. One of the few sensible things the short-serving Prime Minister Liz Truss, herself a former Lord Chancellor, had done was to drop Raab’s Bill, having also dropped him as Lord Chancellor; but both Raab and his Bill were brought back when Sunak became PM. It was only with Raab’s second removal, and replacement with Alex Chalk KC MP, that the Bill was finally laid to rest.
Victims and Prisoners
Another of Raab’s hobby horse Bills remains on the legislative conveyor belt: the Victims and Prisoners Bill. This aims to “enshrine” the principles of the Victims’ Code into law and require criminal justice bodies to review their compliance and raise awareness of the Code, and increase the transparency and oversight of criminal justice bodies’ services to victims. It would also establish an Independent Public Advocate to provide support and guidance for victims of major incidents and help them navigate the processes that follow, particularly inquests and inquiries.
The VAPA (as it may come to be known once enacted) also contains some provisions which reflect Raab’s obsession with the Parole Board, which has already gone through a series of reforms designed to make it more transparent and accountable to victims of crimes and the public. Those changes were introduced following reviews and consultations conducted in response to the court decision in the infamous case of John Worboys (R (DSD) v Parole Board  EWHC 694 (Admin);  QB 285, DC). But Raab wants to go further: the new Bill proposes to strengthen the “release test” for prisoners and allow for greater ministerial oversight and, perhaps most controversially, “the [ministerial] power to overturn release decisions for the most serious offenders” — which seems constitutionally incompatible with the increasingly judicial nature of the board’s decision-making process.
As Sir Bob Neill MP, chair of the Commons Justice Committee pointed out in a letter criticising the Bill’s somewhat incoherent drafting process, “Granting this power to the secretary of state will fundamentally change the application of the constitutional principle of the separation of powers in respect of the parole system…” The move was also criticised in a speech to the Prison Reform Trust at the Old Bailey by Sir John Major, another former Prime Minister.
The Illegal Migration Act 2023 continues to provoke fierce debate after surviving a number of last-minute challenges in the House of Lords and finally receiving the royal assent on 20 July. Its fundamental aim is to deter the entry into the UK of anyone not arriving by some lawful and permitted route. Anyone found doing so will be liable, in theory, to be returned whence they came or removed to a safe third country and thenceforth banned from ever coming back. According to the Law Society, these draconian provisions “may be incompatible with our international obligations under the European Court of Human Rights and the UN Refugee Convention”.
The thinking behind the Act is explained in an “overarching factsheet” policy paper, under the somewhat defensive heading, “Why are we doing it?” This begins a list of complaints about dangerous crossings, manipulative people smugglers, economic migrants, and the £6 million a day spent on hotel accommodation, by pointing out that “The UK asylum system is broken”. Well, we knew that, and we know who broke it. The massive backlog of unprocessed asylum claims and the consequential overcrowding in prison-like refugee detention centres have become a national scandal, but instead the resources that could have been used to improve the situation are being frittered away on prison barges and hotel rooms.
Moreover, as pointed out by Avery Anapol in The Conversation,
“A key facet of the bill — the Rwanda migration partnership — remains in legal limbo. The Court of Appeal ruled that Rwanda would not be able to fairly and accurately assess refugees’ asylum claims if they were sent there from the UK, and that therefore the plan was unlawful. The government will appeal this decision at the Supreme Court.”
That majority ruling (in the case of R (AAA (Syria)) and others v Secretary of State for the Home Department  EWCA Civ 745;  WLR(D) 289, CA) is expected to be appealed to the Supreme Court, but in the meantime the government has established the legislative basis for expulsion to a third country subject only to the question of its safeness. (That’s not to say there may not be other challenges to the lawfulness of the Act’s provisions, however.)
The government’s policy paper goes on to pose the question: “Is the bill going to work?” and then answer it, somewhat circuitously, by saying: “If people know there is no way for them to stay in the UK, they won’t risk their lives and pay criminals thousands of pounds to get here.” Swiftly processing the massive backlog of allegedly fake asylum and modern slavery claims might have had the same deterrent effect, if done properly, or even providing a safe legal route for genuine refugees; but perhaps the prison barges and Rwanda flights are more demonstrative of a tough-looking “stop the boats” narrative.
According to the Refugee Council,
“There is little to no evidence to suggest this new plan will be an effective deterrent to people crossing the Channel in small boats. The Home Office’s own research shows that measures such as this new Bill do not remove the reasons why people undertake dangerous and difficult journeys to the UK and other places.”
The conclusion of the RC’s own impact assessment of the Act is that:
“if enacted … [it] will leave tens of thousands of refugees unable to access the protection they are entitled to under international law. It will cause huge misery, cost billions of pounds, and do nothing to alleviate the current crisis and pressures within the asylum system. A new backlog of people stuck in the UK will be created on top of the already 160,000 people waiting for a decision on their asylum claim, while doing nothing to provide the safe routes that are a vital part of reducing the number of people who take dangerous journeys to reach the UK”.
Communications and IT
The government set itself the objective of making the UK “the safest place in the world to go online”. However the Online Safety Bill (OSB) has provoked a good deal of discussion as to how this can be achieved without breaking something else. There are concerns about privacy and also about curtailments to freedom of expression.
There was always bound to be a three-way tension between privacy, safety and freedom of expression. One or more of these rights is always in tension with the others. For example, the need to protect users’ safety, eg by monitoring potentially unlawful content distributed via encrypted message apps, could involve compromising the privacy and confidentiality of those apps. Preventing people accessing lawful but potentially harmful material, such as certain kinds of pornography, would inevitably infringe their freedom of expression. So if anyone has been given a mission impossible, it’s this Bill.
A guide to the Bill explains that it will make social media companies legally responsible for keeping children and young people safe online, and protect adults by requiring internet publishers to remove illegal or potentially harmful content and give users better controls over what content they see. Internet publishers will be required to monitor content and remove unlawful material before users see and complain about it. Although the internet has a tendency to ignore geographical borders, Ofcom will have power as the regulator to take appropriate action against all social media and tech companies, no matter where they are based, if they are accessible to UK users.
The Bill will therefore place a huge burden on Ofcom to establish and implement the required regulatory framework. According to a recent report by the National Audit Office, “Securing adequate protection of citizens from online harm will be a big new role for Ofcom”. The report assesses how well prepared Ofcom and the Bill’s sponsoring department, the DSIT (formerly DCMS) are for the implementation of the new online safety legislation. It concludes that
“Ofcom has made a good start to its preparations and has taken the steps it could reasonably have done by this point: compiling an evidence base to inform its implementation of the new regime; putting in place the capacity, capabilities and organisational design it needs to begin operating the regime; and engaging with stakeholders.”
But it will need to manage new risks and has yet to secure the funding it needs for the extra staff it has identified that it will require. The NAO report adds that “it will be vital for Ofcom to secure public trust by managing the public’s expectations about the regime’s impact in its early years”.
A number of organisations have joined together to complain about the risks to online freedom of expression, including the Open Rights Group, Index on Censorship and Big Brother Watch. The Save Online Speech Coalition is demanding changes to the Bill. Tech companies such as Apple have complained about the compromises to encryption and the risk to privacy rights, and have suggested they will simply not provide certain services within the UK if it goes ahead. As against this, there are claims for even stronger scrutiny from organisations such as the Center for Countering Digital Hate (CCDH) and the children’s safety charity the NSPCC seeking to strengthen the Bill’s power to prevent harm.
For more on the Bill generally, see the Cyberleagle blog, written by Graham Smith, including most recently Shifting paradigms in platform regulation. See also plentiful commentary on the Bill from various sources on Inforrm’s blog.
HM Courts & Tribunals Service collected over £844 million over the last financial year from offenders relating to fines, confiscation orders and other financial penalties imposed by the courts and police forces, according to the latest HMCTS Trust Statement 2022–23. The statement provides an account of the collection of revenues which by statute or convention are due to the Consolidated Fund where the entity undertaking the collection and subsequent disbursements acts as agent rather than principal. The sums collected are mainly derived from:
- Fines, prosecutors’ costs and compensation orders — These elements of an imposition are imposed by both Magistrates’ and Crown Courts and are enforced by the Criminal Fines Collection and Enforcement Service, part of HMCTS.
- Victim surcharge — An additional surcharge added to the financial impositions that are imposed and are enforced as described above. The receipts from the collection of the victim surcharge by HMCTS are passed to the justice reform directorate of the Ministry of Justice (MoJ) to fund victims’ services.
- Criminal Court Charge — The criminal court charge was an additional financial imposition designed to recover a proportion of the costs of the criminal court from those convicted of an offence. This was abolished in 2015 but the accounts include processes relating to earlier impositions.
- Confiscation Orders — Confiscation orders are imposed by the Crown Court. These require the defendant to pay back the proceeds of acquisitive crime. The orders are, principally, made under the Proceeds of Crime Act 2002 and can result in the seizure and sale of assets.
- Fixed penalty notices — Penalty notices are issued by the police and include both fixed penalty notices (FPNs) for traffic rule violations and penalty notices for disorder (PNDs) for anti-social and nuisance behaviours.
The report notes that within the £844 million of collections, £178 million relate to confiscation order receipts. Looking ahead, it says
“An increase in Victim Surcharge rates introduced in June 2022 will result in additional funds to help support the victims of rape, domestic violence and families bereaved by murder and fatal road traffic crimes, with a proportion of receipts being allocated to Police and Crime Commissioners (PCC’s) for innovative local projects to support victims.”
Introducing the statement, HMCTS chief executive and accounting officer Nick Goodwin said:
“We do everything in our power to trace criminals and their money, including taking deductions from offenders’ benefits or earnings and seizing goods and property. We will continue to remain focused on our key aim of ensuring that justice is delivered and that offenders pay what they owe.”
Dinner for His Majesty’s Judges: LCJ speech
Last week the Lord Chief Justice, Lord Burnett of Maldon gave a farewell address to the Lord Mayor, Lord Chancellor and other dignitaries attending dinner at the Mansion House. After six years in post he said he was looking forward to handing over the reins to his successor, Lady Justice Carr.
“Unlike Lord Mayors, who by convention, serve a single year Lord Chief Justices for centuries could serve indefinitely and more recently to statutory retirement age. None now is likely to achieve the 34 years of Lord Mansfield. None, I hope, will come to the sticky ends of some of my predecessors: for example, Sir John de Cavendish, murdered in the Peasant’s Revolt in 1381; his successor Sir Robert Tressilian executed for treason in 1388 or Sir Robert de Mablethorpe who in 1329 died of wounds following a duel — broadswords and chain mail — but at least he had the comfort of knowing that his opponent also succumbed.”
These days, Lord Chancellors are also lucky to serve more than a single year, but the Chief took the opportunity to express the hope that the current incumbent might manage that:
“I seem to have collected Lord Chancellors as others collect porcelain figures. David Gauke spoke at two of these dinners and Sir Robert Buckland managed two including the socially distanced broadcast from this room in 2020. The vicissitudes of political life will determine whether you too, Lord Chancellor, have a second opportunity. Good luck.”
The more serious bits of the speech were largely dedicated to the state of the courts and judiciary and pleas for more investment from government. It is interesting to compare how much of it overlaps with his first speech to the same audience back in 2018. Some things never change.
Driving system change and addressing injustice: MR speech
The Master of Rolls, Sir Geoffrey Vos gave a speech last month — the keynote address to the Ombudsman Association — which has now been published. “I am pleased to say that we are now on the brink of a revolution in dispute resolution”, he began, before setting out his latest vision for the future of civil justice, in which people’s everyday disputes were funneled by an online triage system into the most appropriate avenue for resolution.
For many, that would be an ombudsman of some description, or some other kind of alternative dispute resolution, obviating the need to engage with the cumbersome expense and procedural maze of court litigation. But if litigation were needed, it could be provided online, without the massive complex rule-book of procedure required for traditional court hearings. That was the beauty and joy of online dispute resolution. The rules and the system would be integrated, under the vision and guidance of the Online Procedure Rule Committee.
“The vision of the future that lies behind the OPRC and the digital justice system for which it will provide the oversight and governance, is that anyone with an issue or dispute, individual or business, should be able, in this technological era, to go online to be directed to the dispute resolution process that is most appropriate for their problem.”
Links in brief to other recent content
BBC presenter scandal: the law around exchanging sexually explicit images
In an article reposted on Inforrm’s blog, Kirsty Welsh, Senior Lecturer in Law, Nottingham Trent University discusses the legal context behind the frenzied media speculation over the senior male TV presenter who sent large sums of money to a much younger but still (just) adult male for sexually explicit images. (The presenter has since been named as Huw Edwards and the BBC has resumed its inquiry into the matter after the police said they found no evidence of criminality.)
Why the Northern Irish Border Poll of 1973 was both unimportant and profoundly important
David Allen Green on his Law and Policy Blog discusses the significance of the border poll that took place on 8 March 1973, asking the population of Northern Ireland to choose whether to remain part of the United Kingdom or become instead part of the Republic of Ireland. Most republicans boycotted it and the turnout was low, so the decision to remain in the UK was probably a foregone conclusion. Its main significance is that it set a precedent for the holding of referendums. (There is also a fuller post at the Empty City substack on the same subject for paying subscribers.)
The Family Court and domestic abuse: achieving cultural change
The second report on the family justice system from the Domestic Abuse Commissioner seeks to improve the Family Court and its ability to effectively engage with domestic abuse. The Commissioner’s report, presented to Parliament pursuant to section 8(6) of the Domestic Abuse Act 2021, makes ten recommendations to achieve the change needed to fulfil the provisions of the Domestic Abuse Act 2021. One of these is that
“The Qualified Legal Representative scheme should be fully and appropriately resourced in order to ensure effective implementation.”
For an explanation of this scheme, see Lucy Reed KC’s post on the Transparency Project blog, What’s a QLR and what’s all the fuss about?(Basically it’s a lawyer instructed simply to conduct the cross examination of domestic abuse victims in place of the alleged perpetrator, where said perp is not already legally represented in the case — ie a litigant in person.)
Unfortunately, there has been a shortage of lawyers willing to sign up to the scheme. As the commissioner’s report notes, at [9.54],
“we understand the QLR Scheme has had limited success likely owing to the low rates of pay, compounded by QLR advocates not being able to recover travel or other reasonable expenses. This effectively renders the Scheme as useless in more remote areas of England and Wales as travel costs may significantly offset, or even outweigh renumeration.”
The report also raised concerns about the instruction and reliance on “experts” in family cases whose qualifications and methods might be open to question, alleging that a child has been subjected to “so-called ‘parental’ alienation”. It recommends adopting a stricter legislative definition of “psychologist”.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
ADJUDICATION — Adjudicator’s decision — Finality: Sudlows Ltd v Global Switch Estates 1 Ltd, 12 Jul 2023  EWCA Civ 813;  WLR(D) 314, CA
ARBITRATION — Appeal — Permission to appeal: National Iranian Oil Co v v Crescent Petroleum Co International Ltd, 13 Jul 2023  EWCA Civ 826;  WLR(D) 306, CA
BROADCASTING — Television service — Breach of licence condition: R (Star China Media Ltd) v Office of Communications, 14 Jul 2023  EWCA Civ 843;  WLR(D) 310, CA
COURT OF APPEAL — Appeal — Permission to appeal: Braceurself Ltd v NHS England, 14 Jul 2023  EWCA Civ 837;  WLR(D) 316, CA
INJUNCTION — Gang-related violence — Exercise of statutory jurisdiction: Birmingham City Council v Jones, 19 Jul 2023  UKSC 27;  WLR(D) 317, SC(E)
LANDLORD AND TENANT — Lease of common parts — Specific performance: Alma Property Management Ltd v Crompton, 19 Jul 2023  EWCA Civ 849;  WLR(D) 318, CA
NATIONALITY — British citizenship — Deprivation: U3 v Secretary of State for the Home Department, 14 Jul 2023  EWCA Civ 811;  WLR(D) 311, CA
NEGLIGENCE — Vicarious liability — Relationship akin to employment: DJ v Barnsley Metropolitan Borough Council, 18 Jul 2023  EWHC 1815 (KB);  WLR(D) 313, KBD
SOLICITOR — Costs — Assessment: Menzies v Oakwood Solicitors Ltd, 14 Jul 2023  EWCA Civ 844;  WLR(D) 307, CA
TELECOMMUNICATIONS — Electronic Communications Code — Code rights: Vodafone Ltd v Potting Shed Bar and Gardens Ltd (Vodafone Ltd v Gencomp (№7) Ltd), 14 Jul 2023  EWCA Civ 825;  WLR(D) 309, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Out-Law: Ruling confirms Building Safety Act’s impact on retrospective defect claims: BDW Trading Ltd v URS Corpn Ltd  EWCA Civ 772;  WLR(D) 299, CA
Global Freedom of Expression (Columbia University): Fragoso Dacosta v Spain: expands expression: Fragoso Dacosta v Spain (Application no. 27926/21), ECtHR
Global Freedom of Expression (Columbia University): Gachechiladze v Georgia: expands expression: Gachechiladze v Georgia (Application no. 2591/19), ECtHR
Free Movement: Dependency assumed for parents with EU Settlement Scheme family permits: Have Rexhaj v Secretary of State for the Home Department  UKUT 161 (IAC), UT
Nearly Legal: Tales from the County Courts — non-occupation of council tenancy, unlawful eviction and ‘wild allegations’ all over the place: Kingston Upon Thames RBC v Khan  EW Misc 7, County Ct
Free Movement: Airport detainee wrongly denied a solicitor in immigration interview: R (Kumar) v The Secretary of State for the Home Department  EWHC 1741 (Admin), KBD
Free Movement: No right to face-to-face legal advice in detention: R (SPM) v Secretary of State for the Home Department  EWCA Civ 764, CA
UK Human Rights Blog: R. v. Foster: Reigniting the UK Abortion Law Debate: R v Foster (Carla) Sentencing remarks, Crown Ct
Global Freedom of Expression (Columbia University): Saure v Germany (No 2): mixed outcome: Saure v Germany (No 2) (Application no. 6091/16), ECtHR
Local Government Lawyer: Hospital discharge and subsequent placement should be considered as separate matters when determining capacity: Wiltshire County Council v RB & Ors  EWCOP 26, Ct of Protection
Out-Law: Landmark Sudlows ruling establishes principles for serial adjudications: Sudlows Ltd v Global Switch Estates 1 Ltd  EWCA Civ 813, CA
Out-Law: Supreme Court backs ‘conventional’ understanding of banks’ Quincecare duty: Philipp v Barclays Bank UK plc  UKSC 25;  WLR(D) 305, SC(E)
BBC: Carla Foster: Mother jailed over lockdown abortion to be releasedR v Foster (Carla) Sentence reduced; Summary of judgment, CA
RPC Perspectives: Strictly need to know: High Court provides further guidance on confidential embargoed draft judgments: R (Kinsey) v City of London Corporation (№3)  EWHC 2723 (Admin), KBD
RPC Perspectives: Confidentiality of arbitration proceedings may not always be protected: Republic of India v Deutsche Telkom AG  SGCA(I) 4, CA (Sing)
Court of Protection Handbook: Committal hearings in the Court of Protection — publicity and complexity: Esper v NHS North West London Integrated Care Board  EWCOP 29;  WLR(D) 300, Ct of Protection
RPC Perspectives: Legislation extending time limits for assessing unpaid offshore tax did not prevent the requirement to correct rules from applying to determine the time limit for making a discovery assessment: James Scott v The Commissioners for HMRC  UKFTT 360 (TC), FTT
Tweet of the week
is from a happy swagger at last week’s annual conference of the American Association of Law Libraries in Boston, #AALL2023
Yes — people love our notebooks, they’ve been a firm favourite at conferences for some years now. And there’s a loop for one of our pens or pencils on the side.
That’s it for now. Next week is the last week of term. Thanks for all your tweets and toots and threads. Go safely 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.