Weekly Notes: legal news from ICLR, 27 June 2022

Barristers on strike outside the Old Bailey, 27 June 2022

Legal Profession

Barristers: strike backers strike back

The decision by a majority of the members of the Criminal Bar Association to refuse to attend court on a series of days of action in pursuit of better legal aid fees has encountered opposition from the judiciary, in the form of a threatening proclamation from the Lord Chief Justice, and their own regulator, in the form of an announcement by the Bar Standards Board. But senior practitioners who back the strike have countered with offers of support and representation for any barristers facing the threatened measures.

In his “update” on Non-attendance at court by members of the Bar, the Lord Chief Justice, Lord Burnett of Maldon, having asserted that the “judiciary is not a party to the dispute between the Criminal Bar Association (the CBA) and the Government” went on to express what appeared to many to be thinly veiled threat:

“If an instructed barrister does not attend, the judge should ask the defendant, if present, whether they have discussed the matter with their barrister and whether they have agreed to their barrister’s non-attendance. It will be a matter for the CPS in each case, to decide whether to make an application for wasted costs.

A failure to attend at court, having accepted instructions, may amount to professional misconduct. The CBA itself has indicated in its communications to its members, that once a barrister has accepted instructions, their personal professional duties and obligations ‘apply in the usual way’.

All cases in which there is non-attendance should be referred to the Senior Presiding Judge’s Office to consider whether to involve the Bar Standards Board. The question whether a failure to attend amounts to professional misconduct, will then be a matter for any disciplinary process.”

The BSB for its part issued a Statement on deliberately failing to attend court in which it pointed out that “Barristers who deliberately fail to attend a hearing at which they are due to represent a client may face regulatory action” and explained that:

“Refusing to attend court in pursuit of a protest will not be regarded as ‘some other substantial reason’ under rC26.8 [in the BSB Handbook]. Any barrister seeking to rely on a client consenting to their absence from a hearing should be prepared to demonstrate that the client gave the consent on a fully informed basis and was made aware of the potential consequences of doing so, which might result in very severe harm to the interests of the client.”

As noted by the LCJ, the CBA has issued its own guidance on the risks associated with participating in the days of action, which it said must be assessed on a case by case basis. But others have pointed out that any delay or inconvenience caused by the stoppages must be seen in the context of an existing pattern of massive delays caused and costs wasted by frequent listing cancellations and routine CPS case prep failures.

For its part, HM Courts and Tribunals Service have sent out a “reminder” that

“From Wednesday 22 June 2022, criminal defence representatives should include the words ‘BAR ACTION’ in the subject line of any email to the court about affected cases, so we can make the relevant judge aware as quickly as possible.”

Barristers are not happy about the implied threats. What was described as the Lord Chief Justice’s “warning shot” was the subject of an open letter to The Times signed by more than 70 of the country’s most experienced criminal lawyers, led by two former leaders of the CBA, Caroline Goodwin QC and Chris Henley QC, in which they said it

“is being read by many of us who prosecute and defend as an attempt to intimidate us. We are concerned that the independent office of the lord chief justice risks being seen as doing the job of a partisan enforcer for a government whose degrading of the justice system has been draining it of the very professionals on which it relies: barristers to prosecute, defend and provide judges.”

Edward Henry QC in a guest post on the BarristerBlog wondered:
Barristers’ on strike: should the Lord Chief Justice have gone ‘no comment’?

Meanwhile on Twitter there has been an outpouring of support from other barristers, many offering to represent any criminal practitioner facing disciplinary or wasted costs applications. 50 Criminal Silks have volunteered for the CBA panel to provide pro bono advice and support for criminal barristers at this unprecedented time. More are joining each day, according to a Message from Senior Practitioners at the Criminal Bar 24.06.22.

See also:

The Secret Barrister,

Catherine Baksi, Legal Futures, BSB prosecutions of striking barristers “unlikely to succeed”

Joshua Rozenberg, A Lawyer Writes, Criminal bar on strike: Raab should offer defence lawyers a way out

Legislation

Bill of Rights Bill (BORB)

With his three important titles — Deputy Prime Minister, Secretary of State for Justice, and Lord Chancellor — Dominic Raab MP must be a busy man. He’s got a criminal justice crisis on his hands (see above), along with prisons, probation, and the crumbling courts and their ever-lengthening modernisation programme to worry about. His department has recently pushed out some major pieces of legislation, including the Police, Crime, Sentencing and Courts Act 2022, the Judicial Review and Courts Act 2022, and the Economic Crime (Transparency and Enforcement) Act 2022. But for a long time his pet subject has been Human Rights; as a backbench MP he wrote a book about the Human Rights Act 1998 and what was wrong with it (The Assault on Liberty — What Went Wrong with Rights (Harper Collins, 2009) and now he has introduced what he hopes will be its replacement: the Bill of Rights Bill or BORB.

In popular parlance a “borb” is a fat or ungainly bird, something that might not fly, and it is tempting to think the same of this proposed legislation. At any rate, it has met with quite a bit of criticism. According to the government’s announcement, its purpose is to “strengthen freedom of speech and curb bogus human rights claims”. But according to today’s UK Human Rights Blog roundup by Tabitha Hutchison,

“While the Government claims that the Bill ‘will strengthen traditional UK rights’ which are ‘under attack’ from ‘stifling political correctness’, critics say the Bill dilutes domestic human rights protection and seeks to diminish the powers of domestic courts.”

She adds that “despite its stated aim to ‘bring rights home’, the Bill will in fact result in the UK being in breach of its obligations under the ECHR more often, making it more vulnerable to adverse rulings by the ECtHR”.

David Allen Green, writing in Prospect magazine, says The proposed Bill of Rights is a pointless distraction, the portentousness of whose title is “absurd”, and whose main purpose appears to be “not to confer new rights or expand existing ones, but to limit the practical effectiveness of rights already in existence”. However, he doubts it will have much practical effect, given that the UK will continue to be bound by the same obligations under international law by way of the Convention itself. It might as well have been titled the “European Convention on Human Rights (let us pretend we are doing something substantial with some spoilers and so mislead our supporters) Act 2022.”

Prof Mark Elliott on his Public Law for Everyone blog is slightly less dismissive. While agreeing that

“the Government’s strategy appears to involve making it more difficult for human rights to be enforced in UK law both by marginalising the domestic influence of the ECtHR and by limiting the capacity of domestic courts to uphold Convention rights,”

he seems less sure about its overall futility, adding rather ominously:

“I conclude that these policy objectives form part of a wider picture according to which the present UK Government exhibits authoritarian tendencies that are in tension with British constitutional tradition.”

See also:

David Allen Green, Law and Policy Blog,

Prof Mark Elliott, Public Law for Everyone: 1,000 words: The Bill of Rights

Joshua Rozenberg, A Lawyer Writes:

International Human Rights

SCOTUS decisions: Roe-ing back on rights

Last week the Supreme Court of the United States (SCOTUS) decided in the case of Dobbs v Jackson Women’s Health Organisation (24 June 2022) that there is no longer a federal constitutional right to an abortion: in so ruling, the court overruled the long-established precedents of Roe v. Wade (1973) 410 US 113 and Planned Parenthood v. Casey (1992) 505 U.S. 833. There is a convenient summary of the Dobbs case on Wikipedia. Its effect is likely to be tremendous. Tortoise media’s daily Sensemaker commented that

“Three days into the post-Roe age, six US states have already banned abortion even in cases of rape and incest. Ten more will have complete prohibitions soon, or already have with very narrow exceptions.

Are we post-Roe or did we just set the time-machine sat-nav back to the old days pre-Roe? Either way it seems to amount to a Roe-ing back of rights. But perhaps it also exposes a kind of democratic complacency, or blurring of the proper separation of powers, that for half a century a modern democracy should have relied on its constitutional court to effect what many consider to be progressive legislation, of the sort which the UK parliament had already effected (for Great Britain at any rate) in the proper parliamentary fashion with the Abortion Act 1967.

More ominously, it has been noted how in his concurring opinion Justice Thomas stated that the court cases providing constitutional rights to same-sex marriage and access to contraception — Obergefell v. Hodges 576 U. S. 644 (2015) and Griswold v. Connecticut, 381 U. S. 479 (1965), respectively — should also be reconsidered:

“Because any substantive due process decision is ‘demonstrably erroneous,’ Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to ‘correct the error’ established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”

This begins to look less like the incremental development of the common law and more like a revolutionary clean-sweep of partisan vengeance. Imagine a reactionary government over here planning to row back on long-established progressive legislation on the abolition of the death penalty, the decriminalisation of homosexuality or the legalisation of equal marriage. Or even the fundamental rights guaranteed by, er, the Human Rights Act?

Recent case summaries from ICLR

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

AGENCY — Agency agreement — Restraint of trade: Credico Marketing Ltd v Lambert, 23 Jun 2022 [2022] EWCA Civ 864; [2022] WLR(D) 269, CA

BUILDING — Contract — Adjudication: Toppan Holdings Ltd v Simply Construct (UK) LLP (Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) LLP), 21 Jun 2022 [2022] EWCA Civ 823; [2022] WLR(D) 266, CA

CRIME — Homicide — Manslaughter: R v BAZ, 22 Jun 2022 [2022] WLR(D) 270, CA

LIMITATION OF ACTION — Deliberate concealment — Start of time running: Gemalto Holding BV v Infineon Technologies AG, 10 Jun 2022 [2022] EWCA Civ 782; [2022] WLR(D) 268, CA

LOCAL GOVERNMENT — Ombudsman — Powers: R (Piffs Elm Ltd) v Commission for Local Administration in England (R (Tewkesbury Borough Council) v Commission for Local Administration in England), 20 Jun 2022 [2022] EWHC 1547 (Admin); [2022] WLR(D) 272, QBD

NEGLIGENCE — Duty of care — Public authority: FXJ v Secretary of State for the Home Department, 20 Jun 2022 [2022] EWHC 1531 (QB); [2022] WLR(D) 265, QBD

PLANNING — Development — Planning permission: Barton Park Estates Ltd v Secretary of State for Housing, Communities and Local Government, 21 Jun 2022 [2022] EWCA Civ 833; [2022] WLR(D) 273, CA

PRACTICE — Claim — Strike out: Schofield v Smith (Schofield v Smith, Rhino Enterprises Properties Ltd v Clyde & Co LLP), 21 Jun 2022 [2022] EWCA Civ 824; [2022] WLR(D) 264, CA

TELECOMMUNICATIONS — Electronic Communications Code — Code rights: Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd (Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd), 22 Jun 2022 [2022] UKSC 18; [2022] WLR(D) 267, SC(E)

Recent case comments on ICLR

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

RPC Perspectives: Tax Tribunal cancels discovery assessments and late filing penalties: Dougan v Revenue & Customs Comrs [2022] UKFTT 140 (TC), FTT (TC)

Transparency Project: Another Financial Remedy case where anonymity was refused: Gallagher v Gallagher [2022] EWFC 52; [2022] WLR(D) 259, Fam Ct

Law & Religion UK: Islam and Friday prayers in Turkish prisons: Abdullah Yalçın (№2) v Turkey (Application no. 34417/10); [2022] ECHR 473, ECtHR

Inforrm's blog: Case Law: Banks v Cadwalladr: Meaning, Intention and Public Interest, Part 1: Banks v Cadwalladr [2022] EWHC 1417 (QB); [2022] WLR(D) 257, QBD

Nearly Legal: We don’t need no tariffs: Khan v Mehmood [2022] EWCA Civ 791, CA (Civ)

Law & Religion UK: Crucifixes, neck-chains and food hygiene: Kovalkovs v 2 Sisters Food Group Ltd [2022] UKET 4102454/2020, ET

Out-Law: UK Supreme Court backs telecoms firms in Electronic Communications Code dispute: Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2022] UKSC 18; [2022] WLR(D) 267, SC(E)

Other recent publications

The Lady of Heaven, blasphemy and free speech

Frank Cranmer on the Law & Religion UK blog considers the reaction to a British historical drama about the life of Fatimah, daughter of the Prophet Muhammad, written from the perspective of Shia Islam. The Muslim Council of Britain condemned it as “divisive” and, after protests by some Muslim groups, the Cineworld cinema chain decided not to screen it — though some other cinemas did.

Law Commission starts debate on how to regulate remote driving

The Law Commission has published a paper asking for views on the need and options for regulating remote driving on public roads. It highlights uncertainties and risks in the way current legislation applies to remote driving. It seeks views on new regulations in both the short and long term to address these challenges.

New data laws to boost British business, protect consumers and seize the benefits of Brexit

The government has announced another new piece of legislation, the Data Reform Bill, which it says “will increase financial penalties for those pestering people with nuisance calls and minimise the number of annoying cookie pop-ups people see on the internet”.

The Northern Ireland Protocol Bill: Delegated Powers

This briefing by Dheemanth Vangimalla of the Hansard Society on the delegated powers in the Bill analyses six areas of particular concern and proposes ways they might be mitigated during the Bill’s passage through Parliament.

Dates and Deadlines

Strategic Lawsuits Against Public Participation (SLAPPs)

Queen’s Room, Middle Temple & Zoom — Monday 11 July 2022, 17:00–20:00

Seminar hosted by Middle Temple in conjunction with the European Circuit, focusing on strategic lawsuits against public participation, followed by a drinks reception in the Queen’s Room. Speakers: Dr Roya Sangi, Redeker; Nick Vineall QC, 4 Pump Court; Paul McGarry SC, Bar of Ireland; Greg Callus, 5RB

This will be a hybrid event and the seminar will be streamed via Zoom. Register for a free in-person ticket here. Register for Zoom here.

And finally…

Tweet of the week

is from the satirical US magazine, The Onion, concerning the latest ruling from SCOTUS (discussed a little more soberly above):

That’s enough contempt of court for one 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.

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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.