Weekly Notes: legal news from ICLR, 28 July 2023

As the Trinity Term ends we round up the latest stories from the world of law before embarking on the Long (and probably far too hot) Vacation and usher in the Silly Season. Insulting politicians, warring bankers, social housing, compulsory mediation and more.

Photo by Pixabay: https://www.pexels.com/photo/sunflower-during-sunset-33044/

Legal profession

‘Subset’ clause

The Prime Minister Rishi Sunak MP provoked a furious reaction from lawyers’ representative bodies after X-ing their collective professional reputation with a tweet accusing “The Labour Party, a subset of lawyers, criminal gangs — they’re all on the same side, propping up a system of exploitation that profits from getting people to the UK illegally.” It turned out that a newspaper investigation had found a small number of immigration lawyers who were prepared to game the system by agreeing to concoct fake asylum claims in exchange for money.

Sunak’s tweet was endorsed by other government ministers, including home secretary Suella Braverman KC MP and Immigration minister Robert Jenrick MP, with Tory chair Lee Anderson MP bringing up the rear by X-ing “My Solution. Put these Lefty Lawyers on the first plane to Rwanda. That’ll teach ‘em.” (He evidently didn’t consider how what was obviously meant to sound like a threat might undermine the validity of the government’s Illegal Migration Act’s human rights compliance. Or how a form of ripoff capitalism was supposed to be “lefty”: even the Daily Mail in its original article didn’t accuse the dodgy lawyers of being left wing.)

In response, Sam Townend KC, Vice Chair of the Bar Council, said:

“Lawyers are not beyond reproach, and all professions have individuals who commit misconduct and are dishonest. Regulators are there to discipline them. The comments by the Prime Minister, however, are clearly an attempt to play politics with the legal profession. This damaging rhetoric undermines the rule of law, trust in lawyers and confidence in the UK legal system and is to be deplored.”

For more on this, see Legal Futures, Sunak “undermining trust in lawyers”, says Bar Council

This is not the first time the Bar has criticised Sunak for his remarks. Back in March, as reported by the Law Society Gazette, the chair, Nicholas Vineall KC accused Rishi Sunak of “startling ignorance” about lawyers after the prime minister criticised Labour leader Sir Keir Starmer for being a “lefty lawyer”.

In response to the Mail’s article the Lord Chancellor, Alex Chalk KC MP wrote a letter to the Chair of the Solicitor’s Regulation Authority (SRA) to call for the “full force of sanctions” to be used against lawyers found guilty of breaching their professional obligations. He added

“Solicitors are critical to the operation of a fair immigration system. I know that the overwhelming majority take their professional duties and obligations extremely seriously.

However, any examples of practices which fall short of the high ethical standards we expect of solicitors risk serious disruption to the immigration system, tarnishing the reputation of those working in this area, and critically undermining public confidence.”

As immigration minister, Jenrick has earned something of a reputation for making even refugee reception centres an even more “hostile environment” than before by ordering the painting over of cheerful murals depicting cartoon characters including Mickey Mouse, and Baloo from The Jungle Book, at one of them in Kent, apparently because he thought they were “too welcoming” and “sent the wrong message”. See Guardian, Robert Jenrick has cartoon murals painted over at children’s asylum centre.

Financial services

Warring bankers

The chief executives of Nat West Bank (Alison Rose) and Coutts (Peter Flavel) have both been forced to resign in the last week, under political and media pressure over their response to complaints by the arch-Brexiteer Nigel Farage about the recent closure of his account with Coutts. In Rose’s case, it was not so much because of the closure of Farage’s account as because, by apparently tipping off a BBC correspondent as to the reason, she effectively breached client confidentiality. The reason inferred by the BBC correspondent (Farage’s relative lack of wealth) turned out to be wrong, or incomplete, when a subject access request by Farage subsequently revealed that the closure of his account followed an internal report by bank staff (of whom Flavel is the boss) basically concluding that Farage was not a good fit, as a customer, with their diversity and inclusion policies. His “xenophobic, chauvinistic and racist views” views, they concluded, “do not align with our values”. Or, to put it in language he might have used himself, they “didn’t like the cut of his jib”.

Banks are free to contract with whomever they wish, provided they comply with the law and relevant regulation. An aspect of the latter is the requirement on banks to take particular care when providing services to politically exposed persons (PEPs) but it’s not suggested now, if it ever was, that Farage, however politically exposed, had done anything wrong in legal or regulatory terms. He just very publicly expressed opinions which, though not illegal, might be regarded as reputationally embarrassing to a supposedly progressive and inclusive institution. That institution is, however, still quite substantially in public ownership, having been bailed out by the government during the last financial crisis. And to be fair to Nat West, they did offer Farage a bank account in place of his one with Coutts, which they own but which is rather more “exclusive” (evidently).

Farage is by no means the only person denied banking services for political or reputational reasons. It has now emerged that the Chancellor of the Exchequer, Jeremy Hunt MP, was refused a bank account with Monzo last year, as was Gina Miller’s True and Fair party this year. She was told in a message on the bank’s app, which sounds very high tech and user friendly, but was given no explanation, which does not. Still, at least the banks can claim that Brexit is not the issue, if both its most prominent supporter and most prominent opponent can alike be denied banking services.

But they are not the only ones. A number of Islamic charities have suffered a similar fate, as Middle East Eye reported recently: UK Muslim charities criticise lack of interest in their bank account closures. Unlike with Farage, they complain, no one in politics or the media took up their cause. You have to wonder why. As Mohamed Kozbar, chairman of the Finsbury Park mosque in North London, writes in the same publication,

“The issue is not whether one agrees or disagrees with Farage’s views, but rather the fundamental principle of equal treatment under the law for all individuals, regardless of their political beliefs or religious identity.

Bank accounts should never be weaponised to punish people based on their opinions, religious affiliations or political stances, as long as those expressions are lawful.”

In response to the fuss about Farage (but not those others) the prime minister, Rishi Sunak, promised his government was taking “tough action” to protect the free speech of banking customers. But perhaps the more relevant human right is that to property and the peaceful enjoyment of possessions as protected by article 1 of protocol 1 of the much-maligned European Convention on Human Rights? A bank might not be a public authority, but the government and the regulators are.

See also:

• Guardian, How the downfall of NatWest boss Alison Rose over Farage and Coutts unfolded — timeline
• Peter Oborne, Middle East Eye, Nigel Farage row: When Muslims have their bank accounts closed, nobody cares
• BBC, Gina Miller’s political party bank account to be closed
• Guardian, Gina Miller voices fear for democracy over closure of her party’s bank account

Land law

Social housing

The Social Housing (Regulation) Act 2023 received the royal assent last week with the Department for Levelling Up, Housing and Communities (DLUHC) claiming that the legislation’s “life-changing reforms” will “strengthen powers to tackle failing social landlords, and tenants living in unsafe homes will be better supported by the Regulator” and Local Government Lawyer according it headline status as “landmark”. (Perhaps that should be “land-law mark”. And to be fair, that is how DLUHC described the Act.) Key changes include:

• strengthening the Regulator of Social Housing to carry out regular inspections of the largest social housing providers and the power to issue unlimited fines to rogue social landlords
• additional Housing Ombudsman powers to publish best practice guidance to landlords following investigations into tenant complaints
• powers to set strict time limits for social landlords to address hazards such as damp and mould
• new qualification requirements for social housing managers
• introducing stronger economic powers to follow inappropriate money transactions outside of the sector

According to DLUHC,

“The Act is the latest step in addressing systemic issues identified following the Grenfell Tower tragedy, not just on the safety and quality of social housing, but about how tenants are treated by their landlords.”

The government says it will continue to engage with the social housing sector, residents, experts to address unsafe homes. The legislation was intended to implement reforms proposed in the Social Housing White Paper.

Courts

Compulsory mediation

Following a consultation launched last year, the government announced last week that it has committed to fully integrate mediation as a key step in the court process for small civil claims valued up to £10,000, starting with specified money claims which make up 80% of small claims.

When seeking to pursue such relatively modest claims, parties will be referred automatically to a free hour-long telephone session with a professional mediator provided by HM Courts and Tribunals Service (HMCTS) before their case can be progressed to a hearing. It is hoped that this will filter out weak or easily resolved claims, and avoid them cluttering up the courts, thus freeing “up to 5,000 sitting days a year”. At a time when courts are sorely stretched, it could help boost court capacity and help reduce waiting time for the most complex cases. (That’s always assuming there are judges and courts available, of course, which is some areas there are not.)

The value limit of £10,000 is actually a lot higher than the £500 limit originally proposed by the Civil Justice Council, but seems in line with the Master of the Rolls’ vision for a streamlined, triaged, funnelled and streamlined civil justice system, as envisioned in his recent speech to the Ombudsman Association, as reported last week.

Joshua Rozenberg, writing on A Lawyer Writes, is sceptical about the government’s claims, pointing out that not all litigants want a quick and convenient solution to their dispute, especially if they’re a defendant or they’re a claimant whose paid court fees: read his recent blog post on A Lawyer Writes, It takes two to tango.

Some criticisms of the proposals have been addressed in the government’s response to the consultation, Increasing the use of mediation in the civil justice system

See also: Legal Futures, Government to introduce compulsory mediation for small claims

LIBs

Links in brief to other recent content

Social media

Elon Musk appears to have put all his X in one basket case, by knocking both the brand recognition and much of the goodwill off Twitter’s perch, thus potentially removing still more of the value of the platform which he acquired for $44bn and which recently admitted having lost around 50% of its ad revenue.

David Allen Green comments here: The value of X — making sense of a re-branding, from a lawyer’s perspective

Criminal appeals

In the week that the Court of Appeal, Criminal Division finally (third time lucky) allowed an appeal by Andrew Malkinson against his conviction for a rape he has always denied having done, the Law Commission launched a consultation on whether and how the law governing appeals for criminal cases should be reformed.

See also:

• Katie Wheatley, partner at Bindmans, The case of Andy Malkinson — what went wrong
• BBC, Andy Malkinson cleared of 2003 rape ‘after finally being listened to
• Judgment in an earlier, failed appeal: R v Malkinson (Andrew) [2006] EWCA Crim 1891, CA.

Judiciary

Guide to Judicial Conduct — Revised July 2023 — updated version including new Statement of Expected Behaviour “to ensure that all judicial office holders are aware of the standards expected of them”. It clarifies how judicial office holders should behave in a manner consistent with the expectations of court staff, as well as towards their colleagues and anyone else with whom they interact in the workplace. Gender-specific pronouns have been removed and Media Guidance and Social Media Guidance for the judiciary have been updated with the latest versions.

Recent case summaries from ICLR

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

CHILDREN — Care proceedings — Judicial meeting: In re C (A Child), 26 Jul 2023 [2023] EWCA Civ 889; [2023] WLR(D) 329, CA

COSTS — Discretion of court — Offer to settle: CCC v Sheffield Teaching Hospitals NHS Foundation Trust, 24 Jul 2023 [2023] EWHC 1905 (KB); [2023] WLR(D) 327, KBD

COURT OF APPEAL (CIVIL DIVISION) — Practice — Permission to appeal: Plescan v Secretary of State for Work and Pensions, 20 Jul 2023 [2023] EWCA Civ 870; [2023] WLR(D) 320, CA

EMPLOYMENT — Unfair dismissal — Reasonableness of dismissal: Garcha-Singh v British Airways plc, 26 Jul 2023 [2023] EAT 97; [2023] WLR(D) 331, EAT

INDUSTRIAL RELATIONS — Consultation and information — European Works Council: Olsten (UK) Holdings Ltd v Adecco Group European Works Council, 26 Jul 2023 [2023] EWCA Civ 883; [2023] WLR(D) 332, CA

LANDLORD AND TENANT — Covenant — Breach: Eastpoint Block A RTM Co Ltd v Otubaga, 25 Jul 2023 [2023] EWCA Civ 879; [2023] WLR(D) 325, CA

MEDICAL PRACTITIONER — Medical treatment — Feeding: R (JJ) v Spectrum Community Health Community Interest Co, 25 Jul 2023 [2023] EWCA Civ 885; [2023] WLR(D) 326, CA

NATURAL JUSTICE — Bias — Apparent bias: In re H (A Child) (Recusal), 24 Jul 2023 [2023] EWCA Civ 860; [2023] WLR(D) 324, CA

PRACTICE — Settlement of action — Consent order: Smith v Backhouse, 21 Jul 2023 [2023] EWCA Civ 874; [2023] WLR(D) 322, CA

Recent case comments on ICLR

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

Nearly Legal: Unlawful eviction — section 27 residence and section 28 damages: Wilson v Wilson [2023] EW Misc 5 (CC) , County Ct

Free Movement: Upper Tribunal reminds parties to identify the issues in an appeal: Secretary of State for the Home Department v TC [2023] UKUT 164 (IAC), UT

Free Movement: Mother and four children spent over a year in ‘inadequate’ accommodation: R (SA) v Secretary of State for the Home Department [2023] EWHC 1787 (Admin), KBD

Law & Religion UK: Asylum and fear of religious persecution in India: Secretary of State for the Home Department v Harsh Lata [2023] UKUT 163 (IAC), UT

Inquests and Inquiries Law Blog: Case comment on R (Maguire) v Blackpool and Fylde Senior Coroner [2023] UKSC 20; [2023] 3 WLR 103, SC(E)

Local Government Lawyer: Waiving or varying a requirement in an enforcement notice: Pathfield Estates Limited v London Borough of Haringey [2023] EWHC 1790 (Admin), KBD

Law Society Gazette: Judge lambasts City firm over costs bill: Henderson and Jones Ltd v Stargunter Ltd [2023] EWHC 1849 (TCC), KBD

Out-Law: Appeal court clarifies Electronic Communications Code interpretation: Vodafone Ltd v Potting Shed Bar and Gardens Ltd [2023] EWCA Civ 825; [2023] WLR(D) 309, CA

Local Government Lawyer: Section 106s and all that: Redrow Homes Limited v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 879 (Admin), KBD

Legal Futures: Law firm’s “implausible” €1.4bn claim against bank thrown out: Verdi Law Group P.C. v BNP Paribas S.A. [2023] EWHC 1860 (KB), KBD

Inforrm’s Blog: Court of Appeal overturns decision of High Court judge to refuse to accept undertakings in harassment claim: Smith v Backhouse [2023] EWCA Civ 874; [2023] WLR(D) 322, CA

QMLR: Third Party Costs Orders and Experts: Order Restored: Robinson v Liverpool University Hospitals NHS [2023] EWHC 21 (KB), KBD

RPC Perspectives: When determining whether there are ‘special circumstances’ account can be taken of early payments and voluntary disclosure by the taxpayer: Marano v Revenue and Customs Comrs [2023] UKUT 113 (TCC); [2023] STC 1062, UT

RPC Perspectives: A narrow escape — software services provider entitled to rely on single aggregate liability cap (Drax v Wipro): Drax Energy Solutions Ltd v Wipro Ltd [2023] EWHC 1342 (TCC), KBD

UK Human Rights Blog: Covid, the Cabinet and a tussle over disclosure: R (Cabinet Office) v The Chair of the UK Covid-19 Inquiry: R (Cabinet Office) v Chair of the UK Covid-19 Inquiry [2023] EWHC 1702 (Admin); [2023] WLR(D) 302, DC

Inforrm’s blog: Case Law, Strasbourg: Hurbain v Belgium, Grand Chamber upholds decision that order anonymising newspaper archive did not violate Article 10: Hurbain v Belgium (Application no. 57292/16), ECtHR (GC)

Electronic Immigration Network: Update on British Citizenship for Children of EEA Nationals: R (Roehrig) v Secretary of State for the Home Department [2023] EWHC 31 (Admin); [2023] 1 WLR 2032; [2023] WLR(D) 38, KBD

And finally…

Tweet of the week

is from Standard court reporter Tristan Kirk, and recalls the actor Kevin Spacey acquitting himself well in court:

Spacey was found not guilty on all counts at Southwark Crown Court last week.

And so ends another Trinity Term. Thanks for reading. We will resume this roundup in the first week of the Michaelmas Term, in October. In the meantime, keep an eye out for other commentary, book reviews, and user tips.

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.