Weekly Notes: legal news from ICLR, 28 February 2022

Monument of Independence, Kyiv, Ukraine. (Shutterstock.)

International law

Russian invasion of Ukraine

Last week Russian forces commenced a full scale invasion of Ukraine. The assault included both aerial bombardment and movement of tanks and troops across the border from Russia to the south and east, and from Belarus from the north. Troop numbers had been built up under the pretext of carrying out military exercises. Earlier diplomatic attempts by Britain, other European nations and the United States to dissuade such an invasion appear to have failed. However, the Ukrainian army and many newly armed civilians put up fierce resistance, which at the time of writing appears to have delayed considerably the Russian advance. Many Russian tanks and troop carriers appear to have been destroyed, but the Ukrainian casualties including civilian victims of bombing have also been heavy. Large numbers of refugees have been leaving the country across the borders into neighbouring European countries to the west.

The nations whose diplomatic efforts failed to prevent the invasion turned quickly to vocal condemnation and to the imposition of economic sanctions and other civil restrictions, in an attempt to isolate and weaken Russia and in particular those businesses and individuals supporting Vladimir Putin and the military. There was some criticism of the UK’s contribution to these efforts for being, in effect, ‘too little, too late’; but in recent days it has stepped up its sanctions considerably. Banks and businesses have been targeted and ports and airspace have been closed to the Russians.

A joint statement by NATO Heads of State said

“We condemn in the strongest possible terms Russia’s full-scale invasion of Ukraine, enabled by Belarus. We call on Russia to immediately cease its military assault, to withdraw all its forces from Ukraine and to turn back from the path of aggression it has chosen. This long-planned attack on Ukraine, an independent, peaceful and democratic country, is brutal and wholly unprovoked and unjustified. We deplore the tragic loss of life, enormous human suffering and destruction caused by Russia’s actions. Peace on the European continent has been fundamentally shattered. The world will hold Russia, as well as Belarus, accountable for their actions.”

Commenting on the background to these events on The Justice Gap, Nicholas Reed Langen says Putin shows us appeasement does nothing but embolden those who would break rules

Legal response

There has been talk of an international legal response, for example in the International Criminal Court (ICC). Reuters reports that Lithuania has asked the court to investigate “war crimes and crimes against humanity in Ukraine”. The Associated Press reports that “the International Criminal Court’s prosecutor has put combatants and their commanders on notice that he is monitoring Russia’s invasion of Ukraine and has jurisdiction to prosecute war crimes and crimes against humanity”.

Domestic legal efforts have focused on implementing laws to curb the activities of Russian oligarchs, including freezing assets and imposing a travel ban on named individuals and businesses including banks. The Law Society Gazette reports that “All Russian aircraft, including private jets, are now banned from UK airspace, and plans are in place to prevents Russian state-owned and private companies from borrowing or raising capital on the UK markets.” However, it also reports that the Foreign Secretary (and former Lord Chancellor) Liz Truss MP has blamed lawyers for the slowness of the government’s response in implementing effective economic sanctions: Truss blaming lawyers for blocking Russia sanctions, says MP

One well known oligarch and friend of Putin is the owner of Chelsea Football Club, Roman Abramovich, whose public relations team issued a statement on Saturday evening claiming to have given the trustees of Chelsea’s charitable Foundation the “stewardship and care” of Chelsea FC. Some media reporters were actually taken in by this form of words, which has no legal meaning or effect, into thinking the oligarch had somehow divested himself of an asset lest it be subject to sanctions, or perhaps to avoid the football team being subject to a ban in the same way as Russian clubs now appear to have been. Not so, as David Allen Green explains, on The Law and Policy Blog: The Chelsea FC statement that is not what it seems.

Refugees

The Home Office claims to have been ready to take in refugees from Ukraine but there has been criticism of its insistence on continuing to apply a strict visa regime, which appears to restrict entrants to close family members of those already here. The Refugee Council and others have urged the government to relax its visa requirements. See

The response has also highlighted how restrictive the position will be under proposed legislative changes in the new Nationality and Borders Bill. Writing in The Times, the former Supreme Court judge Lord Brown of Eaton-under-Heyward said:

“The bill is designed to deter to the maximum extent those seeking to apply for asylum here after being forced to flee their homes in often unimaginable circumstances. Much of this bill is objectionable, not least because it is so lamentably mean-spirited. It is also in flagrant violation of our obligations under the 1951 Refugee Convention. At this most critical time it does not just imperil our reputation for kindness, it fundamentally undermines our support for the international legal order and the rule of law.”

See: Nationality and Borders Bill violates Britain’s obligations to refugees

Family law

Born into care

Statistics released last year showed that four out five mothers in England and three out of four mothers in Wales whose babies are removed at birth are given less than a week’s notice. One in every six mothers faced care proceedings issued and heard on the same day. The Nuffield Family Justice Observatory (NFJO) commissioned the research, which was carried out by the Family Justice Data Partnership (a team based at Lancaster University and Swansea University): Newborn babies in urgent care proceedings in England and Wales.

When a local authority issues care proceedings under s.31 of the Children Act 1989, a request can also be made for an urgent hearing. Such hearings can be particularly traumatic immediately after birth, and can compromise parents’ Article 6 rights under the Human Rights Act 1998, because the notice period means that it is very difficult for parents to effectively instruct a solicitor. Short-notice care proceedings also mean that the social worker representing the child has very little time to examine the case and advise the court on the best interests of the child.

Now the NFJO has published draft guidelines, Born into Care: Draft best practice guidelines for when the state intervenes at birth. The guidelines are being piloted with partner research sites for feasibility testing. Further work is also being undertaken to explore how the draft guidelines should be adapted to better reflect issues of specific relevance to parents with learning disabilities as well as parents and children from Black, Asian and ethnic minority groups.

Authors from Lancaster University and The Rees Centre at Oxford University include Claire Mason, Professor Karen Broadhurst, Professor Harriet Ward, Anna Barnett and Dr Lisa Holmes.

New divorce procedure

New divorce laws will take effect from 6 April 2022, as the Divorce, Dissolution and Separation Act 2020 comes into force. The Act removes the ability to make allegations about the conduct of a spouse and allows couples to end their marriage jointly. It also introduces a minimum period of 20 weeks between the start of proceedings and application for conditional order. (You can read more about the changes in a post by David Burrows on our blog: Divorce and civil partnership dissolution reform: how lawful? Part 1)

The changes have necessitated a redesign of the online divorce application process, changing the nature of the questions asked (or no longer needing to be asked) of applicants. To accommodate the transition, the portal will suspend operation from 4pm on 31 March 2022 (by which time any application under the existing law will have to have been submitted) until 6 April 2022, after which any application will need to comply with the new law.

If you’ve started filling out a paper application form, you’ll need to make sure it’s received by the court by 4pm on 31 March 2022. If you’re sending it in the post, you’ll need to make sure it reaches the court by that date. If you haven’t started your application, you may want to wait until the new services are available from 6 April 2022.

Urgent applications that need to be considered after the deadlines set out above and before 6 April will continue to be accepted, and issued where possible, if received by post or email, before 4pm on the 5th April.

See HMCTS: New divorce laws will come into force from 6 April 2022

Law Society Gazette: ‘Shambolic’: family lawyers told divorce service will close soon

Media law

Code consultation

IMPRESS has launched a public consultation on proposed changes to its Standards Code and guidance, according to which it regulates its member publishers. Since November 2020 Impress has been consulting with the journalism industry, civic society and the public through its Code Review process to seek insights and expertise on how the Code can be updated to ensure it remains fit for purpose for the future of journalism.

Now it is seeking feedback on the changes proposed by its Code Committee. These include changes to reflect the rise of journalism online and proposals which seek to make the standards code more equitable, including lowering the threshold for what amounts to discrimination and re-centering children’s rights and safeguarding needs with regards to the media.

For further details, and to respond, see Impress Code Consultation.

Intellectual Property

Consultation on designs system

The Intellectual Property Office (IPO) is carrying out a call for views as part of a review of the designs system to make sure it remains fit for the future.

The designs system enables rights holders to protect designs and enforce their rights. The current review will help them better understand how we can make the most of new opportunities and flexibilities now that we have left the EU, and how new and emerging technologies may impact the design system.

The call for views seeks a wide range of evidence on three main areas — new opportunities, future frameworks and better regulation.

See also: Jane Lambert, NIPC Law, Call for Views on Designs

Coronavirus rules

… except it doesn’t, any more

Last week the Prime Minister Boris Johnson announced the ending of the remaining COVID-19 restrictions in England. Instead, we are all going to just “live with it”: see COVID-19 response: living with COVID-19. Plans for changes to COVID-19 rules were also announced in Scotland and Wales.

While restrictions on public transport and in shops and offices seem generally to have been lifted, the same is not necessarily true of courts. The latest HMCTS operational summary for week commencing Monday 28 February 2022 says:

“We’re working with Public Health officials to determine what this means for our courts and tribunals and will give as much notice as possible of any changes. In the meantime, please continue to wear face coverings in our buildings, wash your hands and keep distancing where practicable.”

The latest guidance for all court and tribunal users during the COVID-19 pandemic is available on GOV.UK and will be updated when new advice is available.

Vaccine rollout boost

The National Audit Office has praised the rollout of the COVID-19 vaccination programme in England. The report updates an earlier report on the vaccine taskforce and preparations for the rollout in 2020. Praising the work done since then, the report says:

“Initiated in 2020, the vaccine programme has operated at unprecedented pace, scale and complexity, and in conditions of profound uncertainty, to achieve the pressing objectives of supporting the creation of vaccines, securing access to them, and administering them to the population as quickly as possible.”

ICLR Pupillage Award

If you are taking up pupillage in Autumn 2022, paid a total for the pupillage year of no more than £30,000 (including guaranteed earnings), you could receive our top-up award of a further £13,000.

Find out more.

Recent case summaries from ICLR

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

CHILDREN — Orders with respect to children — Specific issue order: In re B (A Child), 16 Feb 2022 [2022] EWFC 7; [2022] WLR(D) 87, Fam Ct

CONFIDENTIAL INFORMATION — Misuse of private information — Reasonable expectation of privacy — Disclosure — Public interest: ZXC v Bloomberg LP, 16 Feb 2022 [2022] UKSC 5; [2022] WLR(D) 96, SC(E)

EMPLOYMENT — Contract — Worker: Nursing and Midwifery Council v Somerville, 25 Feb 2022 [2022] EWCA Civ 229; [2022] WLR(D) 101, CA

EXTRADITION — Compatibility with Convention rights — Private and family life: Craig v HM Advocate, 23 Feb 2022 [2022] UKSC 6; [2022] WLR(D) 100, SC(E)

JUDICIAL REVIEW — Court’s jurisdiction — Non-justiciability: R (A) v Secretary of State for the Home Department, 18 Feb 2022 [2022] EWHC 360 (Admin); [2022] WLR(D) 94, QBD

LOCAL GOVERNMENT — Homeless persons — Local connection: R (Minott) v Cambridge City Council, 18 Feb 2022 [2022] EWCA Civ 159; [2022] WLR(D) 90, CA

PLANNING — Development — Environmental assessment: R (Finch) v Surrey County Council (R (Finch on behalf of the Weald Action Group) v Surrey County Council), 17 Feb 2022 [2022] EWCA Civ 187; [2022] WLR(D) 89, CA

POLICE — Pension — Injury benefit: R (White) v Police Medical Appeal Board, 23 Feb 2022 [2022] EWHC 385 (Admin); [2022] WLR(D) 98, QBD

Recent case comments on ICLR

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

Politico: Top court clears EU to cut funds over rule-of-law concerns: Hungary v European Parliament and Council of the European Union (Case C-156/21); EU:C:2021:974; EU:C:2022:97, ECJ

RPC Perspectives: No power for HMRC to issue partial closure notice without assessment of tax due: Embiricos v Revenue and Customs Comrs [2022] EWCA Civ 3; [2022] STC 232; [2022] WLR(D) 20, CA

A Lawyer Writes: Judge upholds open justice: Attorney General v BBC [2022] EWHC 380 (QB), QBD

UK Human Rights Blog: Strasbourg Court affirms the importance of anonymity online: Standard Verlagsgesellschaft mbH v. Austria (no. 3)(Application no. 39378/15), ECtHR

Civil Litigation Brief: Litigation privilege: when does it start? How does the court deal with issues arising? A high court case: Kyla Shipping Co Ltd & Anor v Freight Trading Ltd & Ors [2022] EWHC 376 (Comm), QBD

Panopticon blog: Bloomberg v ZXC — the Supreme Court decides: ZXC v Bloomberg LP [2022] UKSC 5; [2022] WLR(D) 96, SC(E)

Nearly Legal: Excluded grounds of possession and subsequent grounds: Poplar HARCA v Kerr (unreported), County Ct

Free Movement: Article 3 protects asylum seekers against removal even if they could leave voluntarily: SA (Removal destination; Iraq; undertakings) Iraq [2022] UKUT 37 (IAC), UT (IAC)

Global Freedom of Expression (Columbia University): Director of Public Prosecutions v. Ziegler and others: expands expression: Director of Public Prosecutions v Ziegler [2021] UKSC 23; [2021] 3 WLR 179; [2021] 4 All ER 985; [2021] 2 Cr App R 19; The Times, 7 July 2021, SC(E)

Other recent publications

The X-Client Files: who owns a solicitor’s file

In a post on the RPC Perspectives blog, Claire Revell, a partner with Reynolds Porter Chamberlain LLP, discusses what to do when a client asks for ‘their file’, in the context of updated Law Society guidance on Who owns the file?

“Remember: file requests have nothing to do with relevancy. That’s a question for disclosure (and that’s a whole other blog). File requests are about delivery up — and that’s about ownership.”

Harm Version 4.0: the Online Safety Bill in metamorphosis…

In a series of posts on Inforrm’s Blog, Graham Smith takes stock of the increasingly imminent Online Safety Bill, offering what he calls a “selective attempt to put in context some of the main threads of the government’s thinking, explain key elements of the draft Bill and pick out a few of the most significant Parliamentary Committee recommendations”.

And finally…

Tweet of the week

is a London tribute to St Volodymyr of Ukraine. The statue is the work of the sculptor, Leo Mol (1915–2009), originally Leonid Molodozhanin, who was born in Ukraine and later settled in Canada.

That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Let’s give peace a chance, as we used to say.

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.

--

--

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store
The ICLR

The ICLR

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.