Weekly Notes: legal news from ICLR, 23 November 2020

This week’s roundup of legal news and commentary includes war crimes, election claims, and a decline in standards of public conduct, among other gloomy matters. But there’s some good news as well, and a lovely autumnal image from a barrister’s run.

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Photo taken near Richmond Park, London, by Max Schofield

Politics

Standards in public life

During a week in which the conduct of government has come under more than usually harsh scrutiny, Lord Evans, Chair of the Committee on Standards in Public Life, gave the Hugh Kay Lecture at the Institute of Business Ethics. He began by describing the point of ethical principles, such as the Seven Principles of Public Life defined by Lord Nolan in his 1995 report following the ‘cash-for-questions’ scandal.

“It is a norm in UK democracy that, for example, we expect office-holders to use public funds for the common good, and not to enrich themselves or their families. We expect elected representatives to work for their vision of the common good, rather than acting for their own personal advantage. And we take for granted, that there should be fairness in the decision-making processes — in areas such as policy, planning, and procurement — that will shape our future.”

He said they applied as much to businesses working with the government as to the government itself, and underlined the importance of good governance. But in recent times public culture had changed for the worse:

“the perception is taking root that too many in public life, including some in our political leadership, are choosing to disregard the norms of ethics and propriety that have explicitly governed public life for the last 25 years, and that, when contraventions of ethical standards occur, nothing happens.”

There were, he said, reasons for “real concern”. He wondered, as reflected in the title of his lecture, Are we in a post-Nolan age?

Anti-bullying : weak

One of the examples cited by Lord Evans was the failure to publish the report of the Cabinet Office inquiry into allegations that the Home Secretary, Priti Patel, “bullied” her senior staff, in breach of the Ministerial Code. The inquiry was instigated after the former permanent secretary of the Home Office, Philip Rutnam, resigned in March 2020 over what he described as a “vicious and orchestrated campaign” against him for challenging the alleged mistreatment of civil servants. Rutman is now pursuing a constructive dismissal claim against the government. Allegations against Patel also included incidents from previous departmental roles.

The inquiry was conducted by Helen MacNamara, then the civil service’s Head of Ethics (she is now Deputy Cabinet Secretary), and the Prime Minister was advised on the matter by Sir Alex Allan, Whitehall’s independent adviser on ministerial standards. Although the investigation was completed some months ago, the result has still not been published. But a statement by Allan revealed that Patel had “not consistently met the high standards required by the ministerial code of treating her civil servants with consideration and respect”. According to the Guardian, Allan had also said:

“Her approach on occasions has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.” The statement revealed that at times Patel had shouted and sworn at civil servants due to the “Home Office leadership’s lack of responsiveness and the lack of support”.

Allan said Patel’s behaviour met the civil service definition of bullying as “intimidating or insulting behaviour that makes an individual feel uncomfortable, frightened, less respected or put down”.”

The Prime Minister Boris Johnson rejected his advice, and not only concluded that Patel had not broken the ministerial code, at least not intentionally, but then exhorted loyal Conservative MPs in a WhatsApp group to use their best endeavours on social media to defend the Home Secretary against the inevitable media backlash. (What he actually said was: “form a square around the Prittster”.) The effect was somewhat ludicrous:

It appears that Sir Alex Allan — who was also critical of the civil service in his report for being “not as flexible as it could have been” — had sought to interview Sir Philip Rutnam about his dealings with Patel, but was blocked by government officials. Now that Boris Johnson has essentially rejected his advice on the matter, Sir Alex has resigned. His letter of resignation was pithy:

“I recognise that it is for the prime minister to make a judgment on whether actions by a minister amount to a breach of the ministerial code. But I feel that it is right that I should now resign from my position as the prime minister’s independent adviser on the code.”

It was perhaps an unfortunate irony that this all blew up during what was supposed to be Anti-Bullying Week, during which another member of the Cabinet, Secretary of State for Education Gavin Williamson, said in a video to schools up and down the country, ‘Bullying is never acceptable”.

Further reading: David Allen Green, Law & Policy Blog: The significance of the resignation of Sir Alex Allan

PPE : procurement, preferment, enrichment?

Another reason for ethical scrutiny of government dealings has been the increasing amount of attention being brought to bear on the way lucrative public contracts for the sourcing and supply of personal protective equipment (PPE) mainly for medical use and the care sector, during the early weeks of the coronavirus pandemic. This is something on which investigative reporters at Byline Times, Private Eye and others have been reporting for weeks, if not months, pointing out how the process was not just badly organised but appears to have deliberately favoured people on the basis of their connections with the government or the Conservative Party, rather than their experience or ability. The lack of proper scrutiny is now the subject of a crowdfunded legal action: the Good Law Project is working with the Doctors’ Association UK in bringing legal proceedings to compel the government to hold a public inquiry into the scandal. The GLP is also pursuing or supporting other claims in respect of particular PPE procurement contracts and the appointment of leading roles in pandemic response projects without proper transparency.

Last week the National Audit Office published a report into its Investigation into government procurement during the COVID-19 pandemic, which revealed that by 31 July 2020, over 8,600 contracts related to government’s response to the pandemic had been awarded, with a value of £18.0 billion. Most of these contracts (86%) were awarded by the Department of Health & Social Care and its national bodies, representing 90% of the total value of contracts awarded. New contracts worth £17.3 billion were awarded to suppliers, of which £10.5 billion (well over half) were awarded directly without any competition and £6.7 billion directly through framework agreements; but less than £0.2 billion in contracts (bare more than 1%) were awarded using a competitive tender process or using a competitive bidding process from a framework agreement. Overall there was a lack of proper paperwork and financial reporting and a failure properly to explain and audit many spending decisions, and not enough was done to mitigate risks and promote transparency.

The report drew particular attention to the way the cross-government PPE team had established a “high-priority lane” to assess and process potential PPE leads from “government officials, ministers’ offices, MPs and members of the House of Lords, senior NHS staff and other health professionals”. Leads from these sources were supposedly “more credible” or needed to be treated with more urgency, but it seems many of them were simply more beneficial to “friends of friends” of the government. About one in ten suppliers processed through the high-priority lane (47 out of 493) obtained contracts compared to less than one in a hundred suppliers that came through the ordinary lane (104 of 14,892). So applications were ten times more likely to succeed if they came via connections than simply based on merit. There may have been merit in the former, too, of course, but lack of proper documentation and transparency makes it harder to be reassured about that.

The key trigger to all this was a reliance, or over-reliance, on regulation 32(2)( c) of the Public Contracts Regulations 2015. This provides that “contracting authorities may award public contracts by a negotiated procedure without prior publication” in certain circumstances, including:

“( c) insofar as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for the open or restricted procedures or competitive procedures with negotiation cannot be complied with.”

The report makes a number of recommendations, including that

  • Awarding bodies should publish basic information on contracts in a reasonable time, in line with guidance to publish within 90 days of award.
  • When procuring directly from suppliers, awarding bodies need to provide clear documentation on how they have considered and managed potential conflicts of interest or bias in the procurement process.
  • The Cabinet Office should review whether requirements for disclosure and management of relevant interests are sufficient in cases where public office-holders hold cross-government responsibilities for awarding contracts or procurement.

See also:

Standards Review — 2 little 2 late?

Back to Lord Evans. In September, the independent Committee on Standards in Public Life of which he is chair launched Standards Matter 2 — what it called a “landscape review” of the institutions, processes and structures in place to support high standards of conduct. Announcing the review, Lord Evans said:

“There are now a wide range of different bodies involved in investigating, promoting, and maintaining standards, based on the Nolan principles — some as a result of the Committee’s recommendations over the last 25 years.

“As well as sharing any lessons learned and best practice, we will consider whether there are gaps or issues that require further work. We want to check whether the Nolan principles are well understood, properly embedded and that they continue to reflect the standards expected by the public of those that serve them.”

This review intends to:

  1. Review the evidence as to how well ethical standards are upheld in public life in the UK;
  2. Review the evidence on the strength of the UK’s arrangements for regulating and promoting ethical standards;
  3. Review the adequacy and continuing relevance of the Seven Principles of Public Life;
  4. Identify examples of best practice in the regulation of ethical standards;
  5. Identify examples of best practice in the promotion of cultures that celebrate and encourage high ethical standards.

See also: Terms of Reference.

US Elections

Trumped up claim dismissed

The US District Court for the Middle District of Pennsylvania (Judge Matthew Brann) has dismissed “with prejudice” a claim by plaintiffs styled as Donald J Trump For President, Inc et al (representing the Trump election campaign) seeking to invalidate millions of ballots and to prevent the certification of the presidential election vote in Pennsylvania in favour of the winner, Joe Biden, and his running mate, Kamala Harris. The dismissal of the claim was at the motion of the defendants, including Secretary of the Commonwealth of Pennsylvania, Kathy Boockvar. The Trump claim has effectively been struck out for disclosing no plausible grounds for relief.

The judge, Matthew Brann, has been widely quoted for his somewhat devastating judgment (№4:20-CV-02078). The plaintiffs’ claim, he said, “like Frankenstein’s Monster, has been haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent”. In essence, though, it sought

“to discard millions of votes legally cast by Pennsylvanians from all corners — from Greene County to Pike County, and everywhere in between. In other words, Plaintiffs ask this Court to disenfranchise almost seven million voters. This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens.

That has not happened. Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more. At bottom, Plaintiffs have failed to meet their burden to state a claim upon which relief may be granted. Therefore, I grant Defendants’ motions and dismiss Plaintiffs’ action with prejudice.”

The dismissal follows a number of other losses in the Trump Campaign’s election claims roadshow. But as David Allen Green points out in his comment on the case, its real purpose may be political disruption rather than legal vindication, unless they can get at least one case as far as the Supreme Court and hope to reap the dividend of partisan appointment.

Why has the case been indexed on ICLR.3?

It’s true that we don’t index all American judgments, even at federal level, or indeed those of other common law jurisdictions. However, cases of interest from other jurisdictions will be indexed if they have been referred to in judgments from the jurisdictions we report, or are the subject of case comments in journals or blog posts, and where possible we will include a link to the official judgment.

International Law

Nazi War Crimes

The Middle Temple blog reminds us that it is 75 years since the Nuremberg Trials, which began on 20 November 1945. Among the defendants in the main trial of 24 political and military leaders of the Nazi Germany regime were

  • Hermann Göring, the second-highest-ranked member of the Nazi Party and Hitler’s designated successor,
  • Interior Minister Wilhelm Frick and
  • Albert Speer, Hitler’s favourite architect.

“They were accused of conspiracy, crimes against peace, war crimes and crimes against humanity. The term genocide appeared for the first time in the indictments. Twelve of the accused were sentenced to death.

The main trial was followed by twelve subsequent trials before U.S. military tribunals. One hundred and seventy seven physicians, judges, industrialists, policemen, military personnel, civil servants and diplomats were put on trial, 24 of whom were given a death sentence.”

The post discusses the legitimacy of the court’s jurisdiction, which was challenged, and the role of British barristers as judges in the proceedings. There are copious records both of the proceedings and of the background materials and evidence.

The blog also recommends a number of books commenting on the trials, including Philippe Sands, East West Street. On the origins of genocide and crimes against humanity (Weidenfield & Nicolson 2017).

See also Joshua Rozenberg, A Lawyer Writes: Victors’ justice? — commenting on a series of lectures in Grays’ Inn demolishing the suggestion that the tribunal was operating under laws that were simply invented by the Allies after their defeat of Nazi Germany.

Social media

Equal tweetment

The Lord Chancellor has criticised legal professionals for “vaunting” their political views on Twitter and other social media to “raise their profile and attract work”. He told Parliament’s Joint Select Committee on Human Rights in an evidence session on 18 November 2020 that “they are giving the profession a bad name”. However, some of what he said seemed to be a bit of an own goal. In response to a comment about “derogatory” remarks about lawyers by other members of the cabinet, he said:

“There have been times, sadly, where practitioners have indeed fallen foul of the regulator because of the practices they have adopted; I am thinking of lawfare. Disciplinary proceedings have followed, with quite serious cases where, frankly, the reputation of the legal profession was undermined by the activities of some so-called activist lawyers. These are not phrases that trip lightly off my tongue, particularly. Having been a professional for many years before I entered Parliament, I knew what my duties were and I stuck to them. I believe that the majority of professionals do that.

Social media has amplified this. Where I see members of the legal fraternity using social media as a platform to vaunt their political views in a way that is designed perhaps to get them prominence or publicity and to perhaps generate some work, I worry about that. That is giving entirely the wrong impression about what the profession should be about. The profession is at its very best when it does not wear its political colours on its sleeve and just quietly gets on with its work, consistent with its duty to the court and indeed to its client.

The best that I can do as Lord Chancellor is to constantly remind people of that essential truth about the legal profession and about the very best that it embodies. To politicians, you saw it yourself 20 years ago. It is not pleasant and it is not particularly wise for senior politicians to start labelling legal aid lawyers as fat cats who are only interested in making lots of money rather than actually doing a proper job for people who otherwise would be unrepresented. That was, frankly, unacceptable.”

Twenty years ago? Has he forgotten that it was under his own predecessors as Lord Chancellor in the last few years that his own department was repeatedly briefing against ‘fat cat’ lawyers in the generally compliant press, when implementing the biggest cuts in public funding for justice and advice in a generation, via the infamous LASPO (Legal Aid, Sentencing and Punishment of Offenders Act 2012), which came into force on Chris Grayling’s birthday ( April Fool’s Day) in 2013?

See also: Legal Futures, Lord Chancellor rails against lawyers who “vaunt political views” online

Court reporting

Tweeting in court was one of the matters discussed by the Lord Chief Justice, Lord Burnett of Maldon, in conversation with Ian Murray, executive director Society of Editors, as part of the society’s Virtual Conference for 2020, as reported by the News Media Association.

The Chief said he was a keen supporter of open justice and that the presence of reporters as well as of the public in court was “important for maintaining the integrity of the system and also public confidence in the system.” Live streaming at the appellate level (ie Court of Appeal and Supreme Court) had been a “considerable success”, and Lord Burnett was a great supporter of the broadcasting of sentencing remarks in the criminal proceedings in Crown courts.

However, he said there were problems with social media coverage of court cases, which was not regulated in the same way as the mainstream media.

“Does it pose a threat? It’s possible, particularly in the context I think of high profile criminal cases, it’s at least possible that expansive adverse comment on social media might cause difficulties with the trial.”

He said that while it was not uncommon for a journalist to seek permission to live tweet from the court, it was different for members of the public, who might not be familiar with the restrictions.

That said, one wonders if he is aware of the recent case of someone from the BBC (who really ought to know better) publishing an image of an online hearing conducted via Microsoft Teams. According to a report in Surrey Live,

“A BBC reporter was summoned before a High Court judge after a clip from court was broadcast on TV … The case in question was a judicial review into Surrey County Council’s decision to award planning permission for oil production at a site near Horley … It was held via Microsoft Teams and a clip featuring the judge was put out on the BBC regional news programme on Tuesday (17 November).”

A spokesperson said the BBC had been present at the hearing and the reporter had not personally made the recording. At the contempt hearing the judge, Mr Justice Holgate, asked for transcripts of the parts of the case that had been recorded. “Once he reviews these,” the report said, “a date will be set for the next hearing”.

Courts

Court closures (festive adjournment)

According to this week’s HMCTS weekly operational update, all Crown Courts, magistrates’ courts, County and Family Courts, the Royal Courts of Justice and the Rolls Building, and tribunals will close over the Christmas period, although some emergency courts may operate over the holiday on these days.

Meanwhile, to help tackle the backlog in criminal trials, HMCTS say they

  • have installed plexiglass screens into over 300 courtrooms and jury deliberation rooms. Over 250 courtrooms have been assessed as being capable and available to hold jury trials.
  • are installing new Portakabin® buildings to provide temporary rooms for jury assembly and deliberation. They have installed Portakabin® buildings so far at 14 court locations (Birmingham, Bradford, Caernarfon, Grimsby, Guildford, Hull, Leeds, Leicester, Newcastle, Northampton, Preston, Swansea, Teesside and Woolwich).

Dates and Deadlines

London Legal Giving Week

A message from the Lord Mayor of London and the Lord Chief Justice about how you can support access to justice as part of London Legal Giving Week:

The event is organised by the London Legal Support Trust (LLST) who point out that

“the coronavirus outbreak has affected all of us — but it is the most marginalised groups who are facing the worst effects. Please donate now, to help frontline free legal advice agencies to the continue continue their life-changing work.”

Neurodiversity in Law: Coffee Talk Series

28th November, 19th December 2020

Neurodiversity in Law’s ‘Coffee Talks’ are a series of events where they interview barristers, solicitors and other legal professionals on their experiences of being neurodivergent. Interviewees are asked about their journey so far and give advice on some of the issues faced by aspiring lawyers trying to enter the profession.

These are interactive events, where each guest is visible to the audience and can ask questions and contribute throughout. But they are for members only: please register.

Family Justice Council Forum

Monday 14 December 2020 — 5.30pm to 7.30pm by MS Teams

The Family Justice Council will be hosting a virtual discussion forum on Monday, 14 December 2020, looking at the report and recommendations of the expert panel on Assessing the Risk of Harm to Children and Parents in Private Law Children Cases.

And finally…

Tweet of the week

features some fake law felons —

Apparently these case listings are part of a trial of new software systems, not of any actual defendants. Still, The Muppets Criminal Prosecution is probably not the sequel fans of The Muppet Christmas Carol were looking forward to.

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.

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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