Weekly Notes: legal news from ICLR, 27 February 2023
This week’s roundup of legal news includes immigration, court reform, justice data, marriage, plus recent case law and commentary.
Drowning in claims?
The asylum backlog has reached over 160,000 people, according to a recent post by Colin Yeo on Free Movement: Latest asylum stats show the Home Office failing on all fronts.
There 160,919 awaiting an initial decision, or 166,261 in total once fresh asylum claims are counted as well. Unsurprisingly, says Yeo, the numbers on asylum support have also increased, to 110,171 individuals.
The backlog has been caused in part by an increase in the numbers arriving, including in small boats; but mainly by a failure efficiently to process the claims. Apparently, the Home Office only managed to make 18,999 decisions on asylum claims in the whole of 2022. While this may in turn be partly a resources issue, a large part of the problem is a matter of obtuse policy decisions. As Yeo explains:
“One of the reasons for delays in decision making is the Home Office’s own ‘inadmissibility’ process. This involves arrivees having their claim put on hold while the Home Office attempts to remove them to a third country. In the absence of any agreements to remove to third countries other than Rwanda, and with Rwanda removals on ice while the courts consider their legality, this is entirely pointless.”
The Rwanda policy itself seems built on myths. As Yeo points out:
“It is worth remembering that the numbers claiming asylum remain far, far lower than in comparable EU countries. The UK is not a ‘magnet’ for asylum seekers as some seem to think: the vast majority arriving in Europe claims asylum elsewhere.”
Moreover, while most of those who arrive in a small boat claim asylum, they still make up less than half of the total number of asylum claims.
Someone else’s problem
The government’s policy seems to be as far as possible to pass the problem on to someone or somewhere else.
- In the case of asylum seekers, the plan (upheld in principle by the courts: see R (AAA) v Secretary of State for the Home Department  EWHC 3230 (Admin), DC) is to send them all to Rwanda and let their future be decided there.
- In the case of anyone who can be classed as a foreign criminal, once they’ve “paid their debt to society” in prison, they should be shipped abroad to whence they came, and complete their rehabilitation there.
- In the case of troublesome individuals like former British schoolgirl Shamima Begum, who at 15 was lured into being a camp follower for Isis in the Syrian civil war, and is now being held in a detention camp, the answer must be to deprive her of the only citizenship she has ever known, and attempt to dump the responsibility on Bangladesh as the nation of her ancestry. (Last week the Special Immigration Appeals Commission dismissed her appeal against the decision of the then Home Secretary in 2019 to deprive her of her citizenship: Shamima Begum v Secretary of State for the Home Dept  UKSIAC 1_SC_163_2019.)
You might think, reading about all this, that what this policy of dumping problematic people elsewhere amounts to is basically a sort of human version of fly-tipping.
HMCTS Reform programme audit
The National Audit Office have published their latest (third) audit of progress by HM Courts and Tribunals Service in their vast, ambitious and expensive modernisation programme. Beginning in 2016 and given a budget of over £1.2bn, the programme was intended to transform an old paper-based litigation system into a fully digital user-friendly one. Much of that has been achieved, with the pandemic giving an unexpected boost to the acceptance of online hearings (which they weren’t actually quite ready for), but other parts of the development haven’t gone so well.
“Following repeated delays, HMCTS’s priority has been on delivering its reforms at pace rather than embedding sustainable change. Some services it has delivered are not working as efficiently as expected.”
The project has overrun its budget and schedule and the expected net lifetime savings have fallen, and although some of this can be blamed on the pandemic and other recent woes, NAO concludes: “It is not clear whether HMCTS can achieve its expected benefits with its remaining funding.”
“Of most concern is the case management system for criminal courts, Common Platform. While the system has undoubtedly improved since its initial rollout, remaining technical issues are creating inefficiencies and introducing risk to courts and the wider system. HMCTS must ensure that it works with users to address these issues.”
Another concern has been the failure to collect and analyse data about its own processes and those who use them, to help inform the development and the provision of legal services more generally. As a result, the NAO found, “HMCTS has a limited understanding of whether reformed services are delivering the intended efficiencies, despite developing a new unit cost approach”.
“HMCTS must now focus on achieving the anticipated benefits of the reforms. It must get a better grasp of the outstanding improvements it needs to make across the programme and prioritise its remaining funding on those which maximise both the financial and wider benefits. Failure to do this effectively will pose a risk to the value for money of the programme.”
New research lab launched
“The justice system must make a fundamental shift to focus on data and evidence if it is to be more accessible, efficient and trusted by the public”. So says Justice Lab, formerly part of The Legal Education Foundation (TLEF), but last week publicly launched as separate research and policy centre.
“Despite a distinguished history and global reputation, our justice system is years behind other public services in understanding and measuring performance and impact. As a result, changes to the system have often been underpinned more by anecdote than analysis.
By supporting research and the collection and use of high-quality data, Justice Lab seeks to elevate the voices of those who need the law most, and provide a robust evidence base to help to identify where problems exist, what causes them and crucially, how to fix them.”
The multi-million pound initiative has operated within TLEF since 2018 and its Director, Dr Natalie Byrom, was the architect of a data strategy drawn up for HM Courts & Tribunals Service in 2018.
The public launch of Justice Lab was celebrated with an event at the House of Commons last week, hosted by Sir Bob Neill MP, chair of the Commons Justice Committee and attended by “the great and the good of the justice data and journalism world”, according to Judith Townend, who wrote about the event and its significance for The Transparency Project blog: What’s the future for open justice and ‘justice system data’ policy?
The lab has now published its evaluation report on the Justice Data Matters survey conducted last year into public attitudes towards the commercial use of data in court records, and particularly bulk access to court judgments. The survey was commissioned by TLEF and conducted by Ipsos UK. The resulting report was written up on the Transparency Project blog: New report focuses on public attitudes to the publication of justice data.
Now the lab, on behalf of TLEF, has examined the effectiveness of this project, “to understand how to fill gaps in existing research and identify lessons to be learned for similar exercises in the future”. One of the problems it highlights is that the “public don’t really understand the justice system” and this makes it difficult for interviewees to engage in a useful way in how it should collect and use data. It also noted that
“limited buy-in and engagement from decision makers, a lack of off-the-shelf explainers and other background materials, and limited time and resources for communicating about the public deliberation and its findings have restricted the overall impact of the process”.
It makes a number of recommendations for how such work could be conducted in future, for example by involving “mini-publics (small groups selected to be broadly representative of the general population or affected communities)” in the process, and by developing
“robust background materials that explain key concepts of open justice and the use of data in the justice system to support future public engagement, and to reassure target audiences of the public’s understanding of complex justice issues and concepts”.
Read the report: Justice Data Matters 2022: Evaluation Report
Minimum age for nuptials
The Marriage and Civil Partnership (Minimum Age) Act 2022, comes into force today. It means that 16 and 17 year olds will no longer be allowed to marry or enter a civil partnership, even if they have parental consent. The change is intended to prevent forced marriages, which can cause lasting damage on a child, and forms part of the government’s declared commitment to tackle violence against women and girls. It is now illegal and a criminal offence to exploit vulnerable children by arranging for them to marry, under any circumstances whether or not force is used.
Forget Gretna Green, says Joshua Rozenberg, commenting on the new law on A Lawyer Writes: “Any teenagers thinking of eloping to Scotland in the hope of getting round new marriage restrictions in England and Wales would be well advised to think again.”
He explains how the new legislation is derived from a private members’ bill introduced by the Conservative MP Pauline Latham and supported by the government. It is already an offence under the Anti-social Behaviour, Crime and Policing Act 2014 to force another person of any age into a marriage by the use of violence, threats or any other form of coercion. It is also an offence to arrange the marriage of a person who lacks capacity to consent to the marriage. What has changed is the legal minimum age.
These are, of course, legally registered marriages (under the Marriage Act 1949). What happens when a child is induced or forced to submit to an unregistered religious marriage? Presumably there are other laws and remedies for that.
Other recent items
AI technology projects — the regulatory landscape
Parties engaged in AI technology projects should be mindful of the regulatory landscape, say Helen Armstrong and Ricky Cella of Reynolds Portern Chamberlain, in a post on RPC Perspectives which surveys current and forthcoming legal developments in the EU, US and UK. “A failure to do so could result in an AI solution that is not compliant from a regulatory perspective, the use of which potentially creates risk for the technology provider and user.”
The chain of reasoning: Lady Rose of Colmworth
Currently the only female UK Supreme Court Justice, Lady Rose gives a rare insight into the subtext of judicial interventions, the process of deliberations and makes the case for a broader pool of advocates and judges. Interviewed by Anthony Inglese CB for Counsel Magazine.
Are lawyers still breaching judgment embargoes?
Michael Cross says pointedly that the Law Society Gazette “continues to receive comprehensive and well-written releases from public relations companies remarkably quickly after some hand-downs”, despite the Master of the Rolls’ stern warning to respect judgment embargoes (in Counsel General for Wales v Secretary of State for Business  EWCA Civ 181;  1 WLR 1915) and his clear statement that drafting press releases ‘is not a legitimate activity to undertake within the embargo’. (One assumes the PR companies have simply drafted two versions of the press release, one for victory, another for vowing to fight on…)
Continuing the conversation on SLAPPs
Richard Moorhead on Lawyer Watch takes a closer look at the Solicitors Regulation Authority’s thematic review on conduct in disputes, slightly oddly named as it centres SLAPPS. It is the first of at least two such reviews.
Rape convictions increase to 75 per cent
Joshua Rozenbert on A Lawyer Writes comments on the recent research by by Cheryl Thomas KC (hon), professor of judicial studies at UCL, published in the Criminal Law Review, which shows that the conviction rate in rape cases has increased from 55 per cent to 75 per cent over the past 15 years. Thomas has also examined claims that jurors believed in “rape myths”. Earlier research published in 2021 concluded that these claims were themselves myths.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
CHILDREN — Care proceedings — Fact-finding hearing: In re H-W (Children), 21 Feb 2023  EWCA Civ 149;  4 WLR 19;  WLR(D) 87, CA
CONTEMPT OF COURT — Contempt order — Appeal from: Deutsche Bank AG v Sebastian Holdings Inc, 24 Feb 2023  EWCA Civ 191;  WLR(D) 92, CA
COSTS — Protective costs order — Closed material procedure: R (Ullah) v National Crime Agency, 22 Feb 2023  EWHC 371 (Admin);  WLR(D) 91, KBD
DESIGN — Registered design — Conditions for protection: Monz Handelsgesellschaft International mbH & Co KG v Büchel GmbH & Co Fahrzeugtechnik KG, 16 Feb 2023 (Case C-472/21); EU:C:2023:105;  WLR(D) 86, ECJ
EMPLOYMENT — Contract of employment — Implied term: Benyatov v Credit Suisse (Securities) Europe Ltd, 17 Feb 2023  EWCA Civ 140;  WLR(D) 85, CA
PRACTICE — Claim form — Service: Halton Borough Council v Secretary of State for Levelling Up, Housing and Communities, 13 Feb 2023  EWHC 293 (Admin);  WLR(D) 89, KBD
REVENUE — Value added tax — Supply of goods or services: Gray & Farrar International LLP v Revenue and Customs Comrs, 13 Feb 2023  EWCA Civ 121;  STC 327;  WLR(D) 77, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Local Government Lawyer: Reopening findings of fact: fairness of hearing: A Local Authority v Mother  EWHC 2793 (Fam), Fam D
RPC Perspectives: Tribunal allows taxpayers’ appeals against Schedule 36 information notices and directs HMRC to issue closure notices: Davies (Barry) v Revenue & Customs Comrs  UKFTT 369 (TC), FTT (TC)
UK Human Rights Blog: Raw sewage in the Court of Appeal: Wild Justice v Water Services Regulation Authority  EWCA Civ 28, CA
UK Labour Law: Limiting an employer’s right to dismiss on notice: : Union of Shop, Distributive and Allied Workers v Tesco Stores Ltd  EWCA Civ 978;  ICR 1573;  1 All ER 326;  WLR(D) 312, CA
Local Government Lawyer: High Court judge sets aside order requiring council to provide interim relief to asylum seeker bringing legal challenge over age assessment: R (BAA) v Liverpool City Council  EWHC 252 (Admin), KBD
RPC Perspectives: A matter of interpretation — the Supreme Court look at contractual interpretation once more: Sara & Hossein Asset Holdings Ltd v Blacks Outdoor Retail Ltd  UKSC 2;  1 WLR 575;  WLR(D) 30, SC(E)
Free Movement: Security tribunal finds Shamima Begum was trafficked but she loses anyway: Shamima Begum v Secretary of State for the Home Dept  UKSIAC 1_SC_163_2019; Press summary, SIAC.
The chance of a Glance:
(Let’s see if the tweet changes from monochrome to colour after the winner is announced.)
That’s it for now. Thanks for reading, and thanks for all your toots, tweets, posts and links. Work hard, be kind, take care.
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.