Weekly Notes: legal news from ICLR, 28 March 2022

The ICC in The Hague (via Shutterstock)

International Law

War crimes

On a visit to The Hague last week, the Lord Chancellor Dominic Raab MP said the UK would offer the International Criminal Court (ICC) military, policing and financial support as part of an International coalition to support ICC Russian war crimes investigation.

An additional £1 million in funding will be provided, and soldiers with military expertise will be assigned to the ICC to help uncover evidence of war crimes. The War Crimes Team within the Metropolitan Police Counter Terrorism Command will be mobilised to assist the investigation and are directly engaged with the ICC.

Raab, who is also deputy Prime Minister, met to discuss the case with the chief prosecutor, Karim Khan QC, as well a the foreign and justice ministers of more than 30 countries at the summit in The Hague.

Do we need a special tribunal?

There remains a question as to the ICC’s jurisdiction, given Russia’s almost certain veto of any reference to the court by the United Nations. Hence the proposal to set up a special tribunal, as advocated by the Justice for Ukraine campaign (with support from a petition). A Combined Statement and Declaration calling for the establishment of a Special Tribunal for the Punishment of the Crime of Aggression against Ukraine, was signed by a number of leading legal and political figures, led by former Prime Minister Gordon Brown and including Professor Philippe Sands QC, author of East West Street: On the Origins of Genocide & Crimes against Humanity (2016), Sir Nicolas Bratza, former President of the European Court of Human Rights, and Baroness Helena Kennedy QC. The basis of the suggestion was that

“the ICC cannot exercise its jurisdiction with regard to the crime of aggression if the act of aggression is committed by a state that is not party to the Statute of that Court, unless the Security Council refers the matter to the Court. Since Russia has not ratified that Statute and would exercise its veto in the Security Council against a referral, that Court cannot, as things presently stand, investigate crimes of aggression against Ukraine”.

and that to

“complement the actions now underway before the ICC, ICJ and ECtHR we propose the creation of a special tribunal with a limited focus on the crime of aggression, which cannot be addressed by the three other courts”.

The campaign cites by way of a precedent the Nuremburg trials, which saw the conviction of leading Nazi war criminals after the Second World War.

However, Prof Kevin Jon Heller, in a post on OpinioJuris, argues that Creating a Special Tribunal for Aggression Against Ukraine Is a Bad Idea. His objections appear to be largely practical ones, based on the difficulty of a defeated Ukraine preserving the necessary evidence and apprehending the relevant suspects, and the comparative ease of a victorious Ukraine managing the prosecutions within its own jurisdiction. Among his legal objections is the difficulty of overcoming the immunity from prosecution of officials of a government that has not ratified the court’s statute. His objections have in turn been responded to in another post on OpinioJuris, by Dr Carrie McDougall, Why Creating a Special Tribunal for Aggression Against Ukraine is the Best Available Option: A Reply to Kevin Jon Heller and Other Critics

See also: Prof Sergei Vasilev, via EJIL:Talk!, Aggression against Ukraine: Avenues for Accountability for Core Crimes

Mood music

No one is playing the 1812 Overture, but overtures towards a settlement have continued with various countries attempting to broker a peace deal. While morale among the invaders appears to be poor, losses great, the risk of mutiny growing, and some land gains receding, the Russian president has been attempting to bolster domestic support for his so-called “special military operation” by engaging in a culture war. Or maybe a “special culture operation”, because you can’t say “war” in Russia (on pain of imprisonment).

First there was a bombastic rally in a sports stadium, marking the 8th anniversary of the annexation of Crimea, with singing and flag-waving galore, though attendance for many was compulsory. Putin’s rousing speech was marred by a technical hitch in the broadcast, cutting him off mid-flow, though it was later aired in full.

Then, last week, Putin gave a speech comparing the west’s collective “cancellation” of Russia to the woke brigade’s cold-shouldering of the children’s author, JK Rowling, to which she responded

Sanctions

Since the start of the invasion last month, the UK government has announced sanctions targeted at the majority of Russia’s financial system. Last week, the Foreign Secretary Liz Truss said announced 65 new Russian sanctions against a range of key strategic industries and individuals. The UK has now sanctioned over 1,000 individuals and businesses under the Russia sanctions regime since the invasion. According to the government announcement, the new sanctions target key industries supporting Russia’s illegal invasion, including Russian Railways and defence company Kronshtadt, the main producer of Russian drones. The Wagner Group — the Russian mercenaries reportedly tasked with assassinating President Zelenskyy — has also been sanctioned.

But, says Pinsent Masons Out-Law blog, the obligations placed on airport operators by the UK government’s ban on Russian aircraft are not as tough as those faced by harbour authorities: Legal differences noted between UK bans on Russian aircraft and vessels

Employment

P&O Ferries in the dock over redundancies

Earlier this month, P&O Ferries prompted widespread outrage after sacking 800 staff over a video meeting, proposing to replace them with cheaper agency workers, in many cases at rates below the minimum wage. Unions and government ministers have joined in the chorus of condemnation. Initially it was suggested that the company had not broken a legal requirement of prior consultation, because the ships were registered abroad. But when the CEO of P & O, Peter Hebblethwaite, was interviewed by MPs in the Transport Committee on 24 March 2022, he admitted that the company had broken the law, saying it anticipated that no union would have accepted the plan and it was easier to compensate workers “in full” instead. In other words, they calculated it would be less trouble to break the rules and pay the compensation than to go through the motions of complying with the rules. He also asserted that, but for the decision, the company would have lost an “unsustainable amount of money” and needed to close the business. “I would make this decision again I’m afraid.”

But it’s not just about employment law. The Transport Secretary Grant Shapps has said P&O Ferries could face “criminal prosecution and unlimited fines” over its handling of the redundancies, with the Insolvency Service examining the matter.

The business is still afloat (for now) but isn’t exactly thriving. Ten days after sacking all its workers, P & O Ferries remain docked in various ports, unable to operate because many of the cheaper agency workers it took on have insufficient experience to operate the service safely. The Maritime and Coastguard Agency (MCA) said one of its ship, The European Causeway, had been detained in the port of Larne in Northern Ireland based on “concerns over safety” and “failures on crew familiarisation, vessel documentation and crew training”. If and when allowed to operate, the ferry company (which also carries freight) may not get any passengers. Meanwhile the rival company Stena Line has announced extra services to Northern Ireland to help bring goods into the country. If P & O Ferries hoped to save its failing business by taking a calculated risk over a breach of employment law, it doesn’t seem to have worked.

In a recent post on his Law and Policy Blog, David Allen Green exposes thinking behind such a calculation: “Take A View” — the three words with which P & O and others will internally justify breaking civil law obligations

Ecclesiastical law

Contested heritage

The Rustat Memorial case has focused perhaps more attention on the faculty jurisdiction of Consistory Courts than it normally receives, except perhaps over Irish wording on English tombstones. It reflects a concern felt by the Church of England over its “symbols of injustice” following the Black Lives Matter movement and the recent verbal and physical attacks on statues and memorials allegedly celebrating the lives of those profiting from slavery and exploitation.

In re The Rustat Memorial, Jesus College, Cambridge [2022] ECC Ely 2 concerns a petition by Jesus College for permission to remove from the wall of its chapel a memorial dedicated to its benefactor, Tobias Rustat (1608–94), by reason of his links to the slave trade. That was opposed by a large number of objectors who contended that the petition was based on a “false narrative” of the source of Rustat’s donations to the college. The deputy chancellor, David Hodge QC, after citing the words of L. P. Hartley in The Go-Between, “The past is a foreign country: they do things differently there”, concluded that

“I do not consider that the removal of such a significant piece of contested heritage, representing a significant period in the historical development of the Chapel from its medieval beginnings to its Victorian re-ordering, has been sufficiently clearly justified on the basis of considerations of pastoral well-being and opportunities for mission in circumstances where these have been founded upon a mistaken understanding of the true facts.”

The decision has been written up in the Church Times by its legal correspondent, Shiranikha Herbert, who is also a law reporter for ICLR, under the title Jesus Christ forgave Tobias Rustat, judge argues, and so must Jesus College. There is also a case comment on the Law & Religion UK blog.

The decision is criticised in a guest post on the same blog, by Simon Hunter, of 13 Old Square Chambers. In Dunking, Breaking, Moving, (Re)Making…: Thoughts on the inherent contests of heritage, and on Rustat, he takes a long view of contested heritage:

For a Roman, chucking out a statue or two was a culturally acceptable response, at least in theory. One might reasonably suspect that a faculty did not need to issue from the Registry for the destruction of statues of Domitian in 100AD. And it is unlikely that anyone who threw one into the Tiber ended up in the Crown Court in Bristol.

That is, of course, a reference to the case in which a statue, erected in 1895, to memorialise the former slave trader, MP and public benefactor, Edward Colston (1636–1721), was torn down by #BLM protesters in Bristol in 2020 and thrown into the harbour there. Four of the protesters were charged with criminal damage but acquitted in a verdict described as “perverse” and now the subject of a reference to the Court of Appeal by the Attorney General (see Weekly Notes, 10 January 2022).

In the Rustat case, it seems to Hunter that the deputy chancellor

“places too much emphasis on retaining the supposed aesthetic ‘integrity’ (my word not his) of the monument in its current context and not enough emphasis on the pastoral effects of it being there, or on the wording of the monument itself. …

Rustat’s involvement with the slave trade was abhorrent, even if it was sanctioned by the mores of that other country we call the past. His continued memorialisation in the chapel at Jesus is an affront to the dignity of those who were transported from their homes to be sold as chattels.”

Family law

Divorce reformed

On 31 March 2022 the law of divorce and dissolution of civil partnerships changes, essentially to remove the element of “fault” or the need to show a factual basis for establishing that the relationship has irretrievably broken down. The new law was made under the Divorce, Dissolution and Separation Act 2020 (DDSA 2020) but takes effect by amending or substituting new provisions in two earlier statutes: section 1 of the Matrimonial Causes Act 1973 (MCA 1973) and section 37A and 44 of the Civil Partnership Act 2004 (CPA 2004). There are also new procedural rules: Family Procedure (Amendment) Rules 2022 (SI 2022/44).

How all this works was explained, and some concerns aired, by David Burrows in two recent posts on our blog: Divorce and civil partnership dissolution reform: how lawful? Part 1 and Part 2.

There is also a handy Comparison between the Old and New Divorce Law in a guest post by solicitor Teena Dhanota-Jones on the Transparency Project blog.

Kinship care report

There are estimated to be more than 162,000 children in England and Wales being brought up by family or friends — known as ‘kinship carers’ — because their parents are unable to look after them. Out of the Shadows, a new report from the charity Kinship (formerly Grandparents Plus), sets out their vision for a radically reformed kinship care system in England. They are calling for better support for kinship carers and their children and imploring the Chair of the Independent Review of Children’s Social Care to consider these recommendations as he prepares to report to Government.

This report is informed by Kinship’s extensive work directly with kinship carers, their own research, and consultation with kinship carers. It says “Kinship care is finally being recognised as an important part of the children’s social care system” but needs more support, including financial support, to help make children’s lives better.

Immigration

Windrush compensation scheme report

Professor Martin Levermore MBE DL, Independent Person to the Windrush Compensation Scheme, released his report on the scheme last week. Professor Levermore was appointed in March 2021 and reports directly to the Home Secretary. He concludes that

“Whilst there are some structural weaknesses in the Scheme, I have observed that the department is diligently working to refine processes that will lead to greater efficiency and productivity.”

The scheme established in 2019 has had a troubled history, facing criticism from various earlier inquiries and reviews, including the National Audit Office and the Home Affairs Select Committee report. The latter complained of “long delays and difficulties in applying” and said “We are seriously troubled that instead of providing a remedy, for many people the Windrush Compensation Scheme has actually compounded the injustices faced by the Windrush generation.” Prof Levermore’s report notes that

“Many thousands of people suffered the consequences of having their lawful immigration status wrongly denied through the design and operation of government policies. But four years after the Windrush scandal broke, the Government does not have a confirmed figure for the total number of people affected”.

The scheme is confusing and suffers from the bad publicity and suspicion generated by the original scandal of the same name. In fact there appear to be two schemes:

“Whilst many individuals have now heard of the Windrush Schemes, confusion remains around precisely the difference between ‘The Windrush Scheme (i.e., Status)’ and ‘The Windrush Compensation Scheme,’. Until recently the Home Office did not effectively and clearly communicate to inform potential applicants how each Scheme operated.”

Overall, he says, the Scheme is delivering, and lives have been changed. But “the Scheme now needs to become more efficient and effective through appropriate reforms”. Improvements could be made, he feels, but “the Home Office has robust procedures, systems and checks and balances in place that, with a few refinements, would exemplify best practice in service delivery”.

Recent case summaries from ICLR

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

CHILDREN — Children in need — Welfare services: R (Article 39) v Secretary of State for Education, 16 Mar 2022 [2022] EWHC 589 (Admin); [2022] WLR(D) 132, QBD

COMPANY — Insider dealing — Use of information: A v Autorité des marchés financiers (AMF), 15 Mar 2022 (Case C-302/20); EU:C:2021:747; EU:C:2022:190; [2022] WLR(D) 131, ECJ

IMMIGRATION — Human trafficking — Victim: R (EOG) v Home Secretary, 17 Mar 2022 [2022] EWCA Civ 307; [2022] WLR(D) 134, CA

INDUSTRIAL RELATIONS — Trade union activities — Industrial action: Mercer v Alternative Future Group Ltd, 24 Mar 2022 [2022] EWCA Civ 379; [2022] WLR(D) 135, CA

PRACTICE — Claim form — Service: R (Good Law Project) v Secretary of Sate for Health and Social Care, 24 Mar 2022 [2022] EWCA Civ 355; [2022] WLR(D) 136, CA

ROAD TRAFFIC — Motor Insurers’ Bureau — Uninsured driver: Colley v Shuker (Colley v Motor Insurers’ Bureau), 22 Mar 2022 [2022] EWCA Civ 360; [2022] WLR(D) 133, CA

Recent case comments on ICLR

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

NIPC Law: Trade Marks — NAH Holdings Ltd & Anor v KBF Enterprises Ltd & Anor [2022] EWHC 323 (IPEC), Ch D

UK Supreme Court Blog: New Judgment: NCL Investments Ltd v Revenue and Customs Comrs [2022] UKSC 9, SC(E)

Inforrm's Blog: Defamation Law in Northern Ireland: 2021 in Review and the Road to Reform: MacAirt v JPI Media NI Ltd [2021] NIQB 52, QBD (NI)

RPC Perspectives: Can litigation privilege be claimed for exploratory correspondence with an expert before litigation is in prospect? Kyla Shipping Co Ltd v Freight Trading Ltd [2022] EWHC 376 (Comm), QBD

Nearly Legal: Fixed term secure tenancies and forfeiture: Croydon London Borough Council v Kalonga [2022] UKSC 7; [2022] 2 WLR 592, SC(E)

NIPC Law: Patents — Teva Pharmaceutical Industries Ltd v Bayer Healthcare LLC [2021] EWHC 2690 (Pat), Ch D

Free Movement: Do civil restraint orders apply to the Upper Tribunal? R (Ogilvy) v Secretary of State for the Home Department [2022] UKUT 70 (IAC), UT (IAC)

Other recent publications

A UK Bill of Rights?

Tom Hickman in the London Review of Books discusses the Lord Chancellor Dominic Raab’s “sketchy and half-baked” plans, set out in a consultation document, for a rethink of the Human Rights Act 1998. “The enactment of a bill of rights is not necessarily a bad idea, but it needs to take the ECHR as its starting point, not as an obstacle to be worked around.”

Online safety bill: ambiguous definitions of harm could threaten freedom of speech instead of protecting it

In a post on Inforrm’s blog, Laura Higson-Bliss takes issue with the definition — or lack of it — around the concept of “legal but harmful” content in the government’s new Online Safety Bill. She says the Bill is deliberately vague to make it future-proof, and that the agreed categories of legal but harmful content are expected to be set out in secondary legislation.

“If the government truly wants the UK to become the safest place in the world to go online, while also protecting freedom of speech, we need to rethink the boundaries of what we consider to be harmful, or at least give the concept of harm a more precise meaning.”

Dates and Deadlines

Reflections and prayers for Ukraine

Temple Church, London — 13.15–13:30, 29 March 2022

All members & staff of the Inn and Chambers are welcome to join. There will be a collection for donations to the Ukraine Fund of the Disasters Emergency Committee.

Bloody Difficult Women

Riverside Studios, Hammersmith — 2.30 or 7.30pm till 2 April 2022

Broadcaster and journalist Tim Walker’s brand-new drama is a ‘vital new play’ (Whatsonstage) and sees the tumultuous political events of recent years played out in a power struggle between two determined women: Gina Miller and Theresa May. It unfolds in a series of short scenes like a history play, built around the legal and political struggles over Brexit and the Art 50 case in the High Court which prompted the Daily Mail’s infamous “Enemies of the People” headline. Strongly recommended (I saw it yesterday).

And if you go on on March 30th there will be an exclusive Q&A after the show with Gina Miller and the author, Tim Walker, as well as director Stephen Unwin.

For tickets and other information: Riverside Studios. For photos, see this tweet:

That’s it for this week. Thanks for reading, and thanks for all your tweets and links.

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

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.