Weekly Notes: legal news from ICLR, 28 May 2024

This week’s roundup of legal news includes election fever and its legislative consequences, inquiries into catastrophic mistreatment by NHS and the Post Office, and problems for the courts. Plus recent case law and commentary.

Photo by Jack Finnigan on Unsplash

Politics

Election: a washout & a washup

The Prime Minister Rishi Sunak stood in the pouring rain and announced that Parliament would be dissolved on 30 May, and a general election would be held on 4 July 2024. Once a new government has been elected, Parliament will first meet on 9 July, when members begin to take the oath and the House of Commons will elect a speaker.

This process was carried out in accordance with the Dissolution and Calling of Parliament Act 2022, which replaced the Fixed-term Parliaments Act 2011. The prime minister could have called the general election at any time up until 17 December 2024 — which is five years after parliament first met after the last general election.

Apart from speculation as to who might form the new government, the most pressing issue from a legal affairs point of view concerns the fate of legislation currently in the process of being debated and enacted. That depends on something called the “washup”, which is the final sitting period of Parliament before being prorogued. Washup is the opportunity for Parliament to get through any unfinished business before dissolution. In this case, Parliament only sat for two days before being prorogued on 24 May. So who, or what, was saved?

Washed up (saved):

• Post Office (Horizon System) Offences Act 2024
• Leasehold and Freehold Reform Act 2024
• Victims and Prisoners Act 2024
• Digital Markets Competition and Consumers Act 2024
• Media Act 2024
• Finance Act (No 2) 2024

Left to sink or swim:

• Arbitration Bill
• Renters Reform Bill
• Strategic Litigation Against Public Participation (SLAPP) Bill
• Tobacco and Vapes Bill
• Data Protection and Digital Information Bill
• Economic Activity of Public Bodies (Overseas Matters) Bill

Further reading:

• Institute for Government, General election July 2024: What happens next?
• UK Parliament: Wash-up: What Happens to Bills before Parliament is Dissolved
• Hansard: Royal Assent granted on 28 May 2024 (full list of washed up bills)
• Guardian, Lost laws: which legislation will slip through the net before the UK election?
• Osborne Clarke: Finishing Parliamentary business in the ‘wash-up’ ahead of UK general election: what legislation has survived and what has fallen?
• Law & Religion UK blog, General Election 2024: campaigning and political activity (includes campaigning and political activity by charities, hustings, registration and voter ID, and useful links.)

Inquiries

Bad blood

The Infected Blood Inquiry, chaired by Sir Brian Langstaff, published its final report. It found that because of a “catalogue of failures”, many of those treated with blood products in the National Health Service, particularly between 1970 and 1998, suffered from infections transmitted in the blood, such as HIV and Hepatitis B or C. Infections, leading to deaths, illness and suffering were caused or compounded by a variety of failures which, cumulatively, have been described as “the worst treatment disaster in the history of the NHS”.

“The scale of what happened is horrifying. The most accurate estimate is that more than 3,000 deaths are attributable to infected blood, blood products and tissue.”

Sir Brian’s principal recommendation remains that a compensation scheme should be set up now. There should also be a formal apology and recognition of what happened from those responsible. And lessons should be learned to prevent any future occurrence of a similar disaster.

Governments of various different leadership have been in power over the period during which the disaster occurred, but the present one seems to have bowed out at a very convenient moment just when it should have been shouldering the blame, and the bill for compensation. However it is fair to say that the current outgoing Government accepted the moral case for compensation in December 2022.

See also: David Allen Green, Law and Policy Blog, Another inquiry report, another massive public policy failure revealed

Post Office Horizon IT scandal

This was the week in which disgraced former CEO The Reverend Paula Vennells gave evidence to the Wynn Inquiry. It is likely her evidence will have been well rehearsed in advance, and her tearful apologies when she actually gave it were treated with scepticism. Her assertion that she was personally unaware of facts of which the Post Office may have known, about the accessibility of individual Horizon accounts to external alteration, made a poor impression in the case of someone who had been praised and honoured for her comprehensive management of the business at the relevant time. She also acknowledged that she had misled parliamentary inquiries into the scandal, claiming to be “too trusting” of the minions who (on her careful instructions) were briefing her.

For more detailed coverage (as ever), see Nick Wallis, Post Office Scandal blog:

• Vennells Day 1: the Five Things we learned
• Vennells Day 2: Dispatches from the Bunker

See also: Joshua Rozenberg, A Lawyer Writes, Vennells demolished

This was also the week in which (as noted above) Parliament finally enacted the Bill to wipe clean the slate of so many subpostmasters who had been wrongfully convicted on the basis of the unreliable evidence of the Horizon accounting system, by way of the Post Office (Horizon System) Offences Act 2024. The Government has published an open letter to postmasters.

Courts

Reform redux

Another report from the National Audit Office has criticised the Ministry of Justice’s management of the courts, in particular in Reducing the backlog in the Crown Court. The investigation was a response to the fact that in December 2023 the Crown Court backlog reached its highest ever level, 67,573 — exceeding even the exceptionally high level reached during the COVID-19 pandemic.

For a long time the pandemic was the excuse that kept on excusing, along with the brief but effective barristers’ strike which may have had some temporary effect on the numbers, but it seems organisational and management factors may have been more to blame. The NOA summary notes that “The Criminal Justice Board (CJB) has recently reconvened after an absence of two years over which the backlog rose further.”

In any event, as a previous report by the NAO noted in 2021, the backlog had already been rising substantially before the pandemic, due to cuts in sitting days and other resourcing issues. In its 2021 report Reducing the backlog in criminal courts the NOA also concluded that “sustainable recovery in the criminal courts required the MoJ and HMCTS to significantly improve the quality of their data and its analysis”.

Lack of data and analysis of data is something that has dogged the management of the courts generally in recent years, and has hampered the progress of the massive, ambitious (and now over-running on both costs and time) HMCTS Reform project.

In the same week as the NAO report came out, the justice minister Mike Freer was forced to admit to the Justice Select Committee that

“I think it would honest to be say that we bit off more than we could chew. Now we’ve gone back to making sure that core activities are supported by the reform programme before we do anything more adventurous.”

While it’s fair to say that lots has been done in terms of digitising what were previously almost entirely paper-based court documentation processes differing little from the way things were done in Dickens’ day, the process hasn’t always been smooth. The committee was gathering evidence on delays in the administration of probate, which have been causing problems recently. The online probate application process was supposed to be one of the early triumphs of the Reform project; unfortunately, making it easy to apply online is only the first bit of the process. You have to deal with the applications which have been (so easily) made, and that is where the backlog has been occurring.

As the minister was forced to admit, merely digitising something doesn’t make it more efficient. It just changes the mechanism by which it is done. If you want to make something more efficient, cheaper, faster, etc, then you need to reform the process, not just the mechanism. [It’s not rocket science, by the way. (That’s mainly to do with fuel chemistry and projectile navigation.) It’s just project management.]

• Legal Futures: “We bit off more than we could chew” with court reforms, minister admits
• Parliament: Justice Committee to question MoJ Minister over probate delays: Oral evidence: Probate, HC 520

Government litigation

One interesting consequence of the calling of an election in July has been the timetabling of judicial review litigation involving the much-challenged Rwanda asylum seeker deportation scheme, under which the Prime Minister insisted removals would now begin “in July”. In the case of R (FDA) v Secretary of State for the Cabinet Office and others, Mr Justice Chamberlain issued the following order “On the Court’s own initiative”,

“The defendants and interested party must by 4pm on Friday 24 May 2024 inform the claimant and the Court of the earliest date on which the Government intend to begin removals to Rwanda.

REASONS

The timetable for this claim was set on the basis that removals to Rwanda would begin at the earliest on 1 July 2024. The Government then changed its position, saying that removals could begin in the week commencing 24 June 2024. Following the announcement of a General Election, the Prime Minister has said that removals will begin “in July”. That provides insufficient clarity for the purposes of timetabling this claim. The above direction seeks the clarity required for timetabling purposes.”

See also: Joshua Rozenberg, A Lawyer Writes, Delays for Rwanda challenge?

Recent case summaries from ICLR

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

COSTS — Discretion of court — Indemnity costs: Thakkar v Mican, 20 May 2024 [2024] EWCA Civ 552; [2024] WLR(D) 228, CA

CRIME — Public order — Public assembly: R (National Council for Civil Liberties) v Secretary of State for the Home Department, 21 May 2024 [2024] EWHC 1181 (Admin); [2024] WLR(D) 234, DC

DISCRIMINATION — Disability — Agency: Anderson v CAE Crewing Services Ltd, 22 May 2024 [2024] EAT 78; [2024] WLR(D) 237, EAT

FINANCIAL SERVICES — Investigation — Ombudsman scheme — PENSIONS — Pension scheme — Self-invested personal pension: R (Options UK Personal Pensions LLP) v Financial Ombudsman Service Ltd, 20 May 2024 [2024] EWCA Civ 541; [2024] WLR(D) 231, CA

HOUSING — Homeless persons — Appeal: Fertre v Vale of White Horse District Council, 22 May 2024 [2024] EWHC 1234 (KB); [2024] WLR(D) 235, KBD

INJUNCTION — Interim — Jurisdiction to grant: SportsDirect.com Retail Ltd v Newcastle United Football Club Ltd, 17 May 2024 [2024] EWCA Civ 532; [2024] WLR(D) 227, CA

INJUNCTION — Jurisdiction to grant — Restraint of foreign proceedings: Magomedov v PJSC Transneft, 21 May 2024 [2024] EWHC 1176 (Comm); [2024] WLR(D) 238, KBD

LOCAL GOVERNMENT — Powers — Open space: R (Wilkinson) v Enfield London Borough Council, 17 May 2024 [2024] EWHC 1193 (Admin); [2024] WLR(D) 232, KBD

NEGLIGENCE — Duty of care — Owner and operator of marina: Great Lakes Reinsurance (UK) plc v RAV Bahamas Ltd, 21 May 2024 [2024] UKPC 11; [2024] WLR(D) 236, PC

PLANNING — Development — Planning permission: Bewley Homes plc v Secretary of State for Levelling Up, Housing and Communities, 16 May 2024 [2024] EWHC 1166 (Admin); [2024] WLR(D) 222, KBD

Recent case comments on ICLR

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

UK Human Rights Blog: Banning prayer in school: a lawful interference? R (TTT) v Michaela Community Schools Trust [2024] EWHC 843 (Admin), KBD

Law & Religion UK: Article 9 and hijabs in school again: Mikyas v Belgium (in French) (Appn no 50681/20), ECtHR

UK Human Rights Blog: The Illegal Migration Act and its inevitable fate in Northern Ireland: Re Northern Ireland Human Rights Commission, Application for Judicial Review [2024] NIKB 35, KBD (NI)

Local Government Lawyer: High Court dismisses judicial review against council after finding Bibby Stockholm barge lies outside area subject to planning control: R (Parkes) v Dorset Council [2024] EWHC 1253 (Admin), KBD

Local Government Lawyer: Disposal of open space: R (Wilkinson) v Enfield London Borough Council [2024] EWHC 1193 (Admin); [2024] WLR(D) 232, KBD

Wired: Craig Wright Lied About Creating Bitcoin and Faked Evidence, Judge Rules: Crypto Open Patent Alliance v Craig Steven Wright [2024] EWHC 1198 (Ch), Ch D

Local Government Lawyer: DCOs and the need for development: R (Dawes) v Secretary of State for Transport [2024] EWCA Civ 560, CA

Nearly Legal: Section 23 Care Act and a need for accommodation: R (Campbell) v Ealing London Borough Council [2024] EWCA Civ 540, CA

A Lawyer Writes: Protest law was unlawful: R (National Council for Civil Liberties) v Secretary of State for the Home Department [2024] EWHC 1181 (Admin); [2024] WLR(D) 234, DC

And finally…

Tweet of the week

shows human rights charity Each Other getting Lush before the election:

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.