Weekly Notes: legal news from ICLR, 23 January 2023
This week’s roundup of legal news includes the rule of law at home and abroad, open justice and transparency in the family courts, compensation in the post office inquiry; plus recent case law and commentary.
Defending the rule of law
The Lord Chancellor and the Law Officers must have the character, authority, intellect and independence to defend the rule of law, says a report published last week by the House of Lords Committee on the Constitution. Its report on The roles of the Lord Chancellor and the Law Officers (HL Paper 118) is critical of some of the things said or done or not said or done by recent occupants of those roles, such as failing to defend the judiciary against personal attacks in the press or being complacent about executive action or legislation in breach of international treaty obligations. As it explains in its opening summary:
“Since our last report on the Lord Chancellor in 2014, the Government’s commitment to the rule of law has been called into question. The bills for the United Kingdom Internal Market Act 2020 and the Overseas Operations (Service Personnel and Veterans) Act 2021 contained provision which would have contravened the UK’s international obligations, as does the Northern Ireland Protocol Bill in the current session. The then Lord Chancellor’s lacklustre defence of the judiciary in the wake of the Daily Mail’s ‘Enemies of the People’ headline was heavily criticised.”
It then sets out a fairly stern lecture about the rule of law, and the need for the Lord Chancellor and Law Officers to uphold it, not just at home but in the face of threats against it by other governments. For the benefit of those who should know already, as well as the education of the lay reader, it explains:
- A treaty, once agreed, binds the state. It is the responsibility of the Government, as the state’s international representative, to ensure that agreements entered into internationally are respected.
- The responsibility of the Government to honour the state’s international obligations requires it to refrain from inviting Parliament to legislate knowingly contrary to the UK’s international obligations.
- The Lord Chancellor should fulfil a wider, cross-departmental, role in defending the rule of law and educating his or her colleagues on its importance.
- Defending the judiciary against unfair, personal or threatening abuse is a core part of the Lord Chancellor’s role. While criticism of the content of a judgment is acceptable, targeted personal criticism which unfairly impugns a judge’s impartiality or inflames public sentiment against the judiciary is not. In such cases, a Lord Chancellor must intervene promptly and publicly.
- The threshold by which Government lawyers — including the Law Officers — determine the lawfulness of proposed Government action, the existence of a “respectable legal argument”, could sometimes represent a very low threshold for authorising legally uncertain action. The concept may provide a helpful framework for the provision of advice by Government lawyers but a decision by ministers to act must not be based solely on a calculation of legal inconvenience.
There may perhaps be a difference between what is “respectable” in terms of legal arguments when privily advising ministers and what might be thought respectable, on instruction, and with suitable hesitancy, in a court. But perhaps that’s not what was meant.
The report rejects the suggestion that the twin roles of Lord Chancellor and Secretary of State for Justice should be severed, or that the Law Officers should not also be politicians, arguing instead that the rule of law is best protected by “appointing those with the correct character, authority, intellect and independence” to defend it.
For too long, transparency in the family courts had been put in the “too-difficult box”, but with the forthcoming court reporting pilot it was to be hoped that the right balance could be struck between confidence and confidentiality.
So said Sir Andrew McFarlane, giving the keynote speech at this year’s Support Through Court annual Family Law Breakfast, hosted by Charles Russell Speechlys at their London office last Tuesday, 17 January 2023. ‘Transparency in the Family Courts — Reflecting back and looking forward’ was the theme of this year’s event, which was also sponsored by Our Family Wizard, Bloomsbury Professional, The 36 Group, and Rhea Family Finance.
A panel chaired by Hannah Markham KC (The 36 Group) presented a range of perspectives on the opening up of the family courts to greater scrutiny. After the President’s keynote address, we heard from Sarah Higgins, solicitor, of Charles Russell Speechlys; Louise Tickle, award-winning freelance journalist (& member of the Transparency Project); Alexander Chandler KC, barrister specialising in matrimonial finance; and Stephen Adler, trustee of Support Through Court (who provide volunteer support for litigants in person).
A summary of what they all said has been reported on The Transparency Project blog.
Post Office Horizon IT inquiry
On 9 January 2023 Sir Wyn Williams issued a statement on Issues relating to Compensation, reviewing progress made with the various schemes for compensating sub-postmasters for losses sustained as a result of wrongful acts by the Post Office. There are now three separate schemes in progress:
- the Historical Shortfall Scheme (“HSS”)
- the Overturned Historical Convictions Scheme (“OHCS”)
- the Group Litigation Scheme (“GLS”).
The last is a new scheme set up to compensate litigants who successfully sued the Post Office in the civil courts but had to settled for a sum that was largely eaten up in costs, leaving them substantially un-compensated for their losses. Even with the older schemes, as emerged at a special hearing of the inquiry in December, it appears that a lot of the victims still being made to wait in some cases for a very long time for compensation.
Nick Wallis, who wrote the book on this scandal, is also covering the Inquiry via a crowd-funded blog. His latest post, Altman General Review finally published, concerns advice given by one of the Post Office’s lawyers, Brian Altman KC, back in 2013, in overseeing a review of the conduct of prosecutions of sub-postmasters by or on behalf of the Post Office, following the revelations in the Second Sight forensic accountants’ report about the unreliability of Fujitsu’s Horizon accounting system, on whose evidence those prosecutions largely depended. Suffice it to say, there are suggestions the review (which Wallis publishes on the blog) could have been more wide-ranging and robust and less deferential to the reputational priorities of the Post Office.
Subscribers to Wallis’s blog also get a regular secret email with all the latest news. There is also a podcast, done with Rebecca Thomson, who also has a blog about the scandal.
International rule of law
Fair trials in Hong Kong
Publisher Jimmy Lai, whose Apple Daily newspaper was closed by the Hong Kong authorities in 2021, and who was arrested in August 2020 under the recently enacted National Security Law (NSL) for sedition publication and “conspiracies to collude with a foreign country or external elements to endanger national security”, wants to be represented at his trial in the special administrative region by a British barrister, Tim Owen KC. The Hong Kong authorities are not so keen on the idea.
Owen successfully applied to the Hong Kong High Court for ad hoc admission to the Bar to represent Mr Lai  HKCFI 3233, following the earlier admission to the Bar of Mr David Perry KC to represent the prosecution  HKCFI 113. An appeal by HK Secretary of State for Justice, Paul Lam, was dismissed by the Court of Appeal  HKCA 1689 and permission for a further appeal was refused by the Court of Final Appeal  HKCFA 23.
After that, the chief executive John Lee asked the standing committee of the National People’s Congress (NPC) in China whether, as a matter of policy, foreign lawyers should ever be allowed to appear in cases under the NSL. But the NPC in China put the onus straight back on the chief executive, saying it was for him as chief executive, or for the committee on safeguarding national security which he chairs, to decide whether defendants in national security cases could be represented by foreign lawyers.
In effect, all Lee needs to do is to certify that the case is one that involves the NSL. Meanwhile Lam has argued, both in the appeals and generally, that overseas lawyers without any substantial connection to the region or its laws should be banned from taking on cases involving national security. It seems likely that legislation will soon be passed in the special administrative region to bar from the Bar any foreign lawyers seeking to appear in NSL cases. Which rather begs the question whether, like Perry KC, they should even be acting for the state in such cases. Perry has since relinquished the case (see The Times, ‘Mercenary’ lawyer David Perry quits Hong Kong dissident trial).
Incidentally the local HK Bar is also opposed to the engagement of these British silks, on the ground that there are plenty of perfectly well qualified local barristers able to handle these cases without flying in a foreigner. (This sounds a bit like provincial courts in England and Wales muttering churlishly about ‘London counsel’ turning up all la-di-da thank-you-very-much, etc etc.)
See also: Joshua Rozenberg, A Lawyer Writes, Beijing stops short of blocking British KC
Other recent items
Publication of listed judgments: towards a new benchmark of digital open justice — report from ICLR about the efficiency and coverage of the new system for publishing judgments via The National Archives during its first three months of operation. The rate at which judgments listed in the Daily Cause List were published varied from court to court, but on average about 62% were published on the day of judgment, with that figure increasing to just over 74% when including those published late. However, that still left over a quarter of the listed cases not being published at all. Many others were also published, which had not been listed. ICLR is continuing to monitor the process.
Data Decade: Data and public policy, podcast by Alek Tarkowski, co-founder and Director of Strategy at Open Future, and Matt Davies, Senior Policy Adviser at the Open Data Institute, as part of the Data Decade series marking the institute’s tenth anniversary.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
EDUCATION — Mandatory teaching — Relationships and sexuality education: R (Isherwood) v Welsh Ministers, 22 Dec 2022  EWHC 3331 (Admin);  WLR(D) 26, KBD
ENVIRONMENT — Protection — Climate change: R (Friends of the Earth) v Secretary of State for International Trade, 13 Jan 2023  EWCA Civ 14;  WLR(D) 22, CA
HEALTH AND SAFETY — Employer’s duty — Work equipment: TJ v Inspectoratul General pentru Imigrări, 22 Dec 2022 (Case C-392/21); EU:C:2022:1020;  WLR(D) 8, ECJ
LANDLORD AND TENANT — Lease — Construction: Sara & Hossein Asset Holdings Ltd v Blacks Outdoor Retail Ltd, 18 Jan 2023  UKSC 2;  WLR(D) 30, SC
LOCAL GOVERNMENT — Powers — Prosecution: R v AUH, 16 Jan 2023  EWCA Crim 6;  WLR(D) 28, CA
PRACTICE — Claim — Discontinuance: McDonald v Excalibur & Keswick Groundworks Ltd, 17 Jan 2023  EWCA Civ 18;  WLR(D) 29, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Transparency Project: Parenting at a distance — a correct use of section 20: Re S (A Child) (s 20 Accommodation)  EWCA Civ 1, CA
Law Society Gazette: Costs protection still in place for last-minute discontinuance, rules CoA: Excalibur & Keswick Groundworks Ltd v McDonald  EWCA Civ 18, CA
RPC Perspectives: Waiver of a solicitor’s equitable lien: Candey Ltd v Russell Crumpler and another: In re Peak Hotels and Resorts Ltd  UKSC 35;  1 WLR 342, SC(E)
Local Government Lawyer: Court of Appeal makes “unusual order” allowing appeal over refusal to make person party to care proceedings: S, Re (Children: Party Status)  EWCA Civ 1717, CA (Civ)
UK Supreme Court Blog: Case Preview: R (Day) v Shropshire Council (appn all)  1 WLR 1851, SC(E)
Local Government Lawyer: Ex-leader of London borough fails in High Court challenge over naming in Ombudsman report: R (Ejiofor) v Comr for Local Administration in England  EWHC 3174 (Admin), KBD
UK Supreme Court Blog: Case Comment: Guest v Guest  UKSC 27;  3 WLR 911, SC(E)
Nearly Legal: A lift too far. The extent of the section 11 obligation: Anchor Hanover Group v Kenneth Cox[ 2023] UKUT 14 (LC), UT
RPC Perspectives: Hong Kong — Parties agreed settlement terms without formal settlement agreement: MSB International Ltd v Morten Lok & ors  HKCFI 3751, HC (HK)
A Lawyer Writes: Beijing stops short of blocking British KC: Secretary of State for Justice v Owen  HKCFA 23, CFA (HC)
The law and lore blog: ESSAY: The 1610 case of Dr Bonham, and the question of whether parliament is really sovereign: Dr Bonham’s case (1610) 77 ER 638, 646; (1610) 8 Co Rep 107, 113, KB (Coke CJ)
RPC Perspectives: St James’s Oncology v Lendlease: the value of project-specific amendments to JCT contracts: St James’s Oncology SPC Ltd v Lendlease Construction (Europe) Ltd  EWHC 2504 (TCC), QBD
Law & Religion UK: Is discernment for ordination training an offer of employment? McCalla v Lichfield Diocesan Board of Finance Inc: Case No: 1303655/2021, ET
Tweet of the week
is a scary vision for all law librarians: are your best commentaries suspending judgment (from the ceiling)?
Thanks for reading, and thanks for all your toots, tweets, posts 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.