Weekly Notes: legal news from ICLR — 29 July 2019

This last roundup of the Trinity Term looks at the prospects of a shakeup in Downing Street and Whitehall, and reviews the state of play in the courts, the judiciary, the prisons, and other legal developments, before concluding with a nice message from the head of family justice.

The old guard rides out, while the new faces shuffle in. Photo by David Jakab from Pexels

Politics

The successful candidate for leadership of the Conservative Party, Boris Johnson, was appointed Prime Minister, and immediately began a big clearout of his predecessor’s Cabinet. One of those who chose to walk before he was pushed was the Lord Chancellor, David Gauke (see last week’s roundup). He has been replaced by his deputy, Robert Buckland QC MP, who is the seventh to occupy the role in as many years.

Former Solicitor General Lucy Frazer is now prisons minister. Wendy Morton MP has been appointed a junior minister to replace Paul Maynard MP. Lord Keene of Elie QC and Edward Argar remain in post. Geoffrey Cox QC MP remains Attorney General. Michael Ellis MP (previously at Transport, but was called to the Bar at Middle Temple) has been appointed as Solicitor General.

Other appointments to Johnson’s cabinet include two former Lord Chancellors, Michael Gove, who is now Chancellor of the Duchy of Lancaster, and Liz Truss, who is Secretary of State for International Trade. Keeping it in the family, Boris Johnson has appointed his own brother, Jo Johnson, as Minister for business, energy and industrial strategy, and education. Amber Rudd, who had to resign as Home Secretary over the discriminatory policies resulting in the Windrush fiasco, is now minister for Equalities.

The new Home Secretary, Priti Patel, has raised eyebrows among legal commentators by virtue (or by vice) of her previously expressed support for the reintroduction of the death penalty. A video clip of her contribution to a debate on BBC Question Time has been doing the rounds on Twitter, in which her response, with its references to “ultimate burden of proof”, can politely be described as unconvincing.

But Patel is also remembered for having appeared to suggest that the the threat of food shortages could be used as a negotiating tactic to make the Irish government adopt a more flexible approach to Brexit and the so-called “backstop”, and it is her unwavering support for Brexit that has earned her a place in Johnson’s cabinet. Indeed, the intention behind the dramatic shakeup seems to have been to populate the entire cabinet with ministers who are not only in favour of Brexit, but have expressed a willingness to contemplate and navigate their departments through a no-deal scenario. “No ifs, no buts” was how Johnson put in his inaugural speech. Anyone not prepared to sign his equivalent of the 39 Articles of faith in Brexit has therefore been purged.

Comparisons have been made to the Night of the Long Knives (a blitz reshuffle by an earlier Conservative prime minister) but Johnson’s is only the latest of a number of ministerial reshuffles in the current Tory administration, if you date it back to David Cameron’s first in 2010. Indeed, there has been more reshuffling in Westminster than in a night of cards at a Mayfair casino.

Judiciary

Lord Reed (currently Deputy President) will succeed Baroness Hale of Richmond as President of the Supreme Court of the United Kingdom on 11 January 2020, it was announced last week. Lord Justice Hamblen, Lord Justice Leggatt, and Professor Andrew Burrows will join the Supreme Court as justices on 13 January, 21 April and 2 June 2020 respectively, following the retirement of Lady Hale, Lord Carnwath and Lord Wilson.

Lord Reed’s appointment also means that a new Deputy President will now be appointed. The recommendation for this appointment will come from a commission convened by the Lord Chancellor for this purpose. An announcement is expected before January 2020, when it is intended that the new Deputy President should take up office.

In her foreword to the Supreme Court’s Annual Report and Accounts 2018–2019, published last month, Lady Hale pays tribute to the three previous departing justices, Lord Mance, latterly Deputy President of the Court, who served in the Appellate Committee of the House of Lords from 2005 before transferring to the Supreme Court of the United Kingdom (UKSC) when it was established in 2009; and Lord Sumption and Lord Hughes, who were appointed to the UKSC in 2012 and 2013 respectively. They were replaced by Lady Arden — the third woman to be appointed to the Court — Lord Kitchin and Lord Sales.

Justices of the UK Supreme Court also sit in the Judicial Committee of the Privy Council, which hears appeals from a number of overseas jurisdictions. Unlike judges of the other courts, the justices of the Supreme Court are selected by a specially convened independent selection commission.

The Judicial Appointments Commission (JAC), which selects candidates for judicial office in other courts and tribunals in England and Wales and for some UK-wide tribunals, has just published its Annual Report 2018–19. Its chair, Lord Kakkar, notes that the commission has seen an “unprecedented demand” with “nearly 5,000 applicants across 23 selection exercises at almost every level of the judiciary”, from which just over a thousand appointments were recommended. It retains a statutory duty to select solely on merit and has a number of strategic priorities to focus on, but:

“ Cutting across all these will be our ongoing work to promote and support the diversity of applicants for judicial appointment. A refocused Judicial Diversity Forum from this autumn, will provide an opportunity for the Lord Chancellor and Lord Chief Justice to meet alongside the Chairs of the Bar Council and Legal Services Board, and the Presidents of the Law Society and CILEx to continue progress in the important area of diversity.”

Chief executive Richard Jarvis adds that in order to meet the increased workload, the JAC “received an increased budget allocation, which allowed us to increase our staff and panel members and now have in place the necessary capacity to meet the future needs,” though he notes that there is work to be done “to improve levels of staff engagement and morale”.

The JAC was established on 3 April 2006 under the Constitutional Reform Act 2005. It is an executive non-departmental public body, sponsored by the Ministry of Justice. The Commission is led by a lay Chairman and includes 5 lay commissioners, who are drawn from a variety of professional fields. Membership of the Commission is also drawn from the courts and tribunals judiciary, the legal profession, and the lay magistracy or non-legal tribunal members.

Radio presenter Edward Adoo, whose grandfather, Julius Sarkodee-Adoo, was Chief Justice of Ghana, investigated the continuing lack of non-white judges in this country, in a BBC Radio 4 broadcast, The Colour of Justice.

A recent Department of Justice review showed that ethnic minority groups make up only 11% of magistrates and 7% of judges. It also acknowledged that people from black, Asian and minority ethnic backgrounds make up 25% of the England and Wales prison population and 41% of the youth justice system — but only 14% of the general population. This suggests there is a wide ethnicity gap between those incarcerated and those who sentence them.

Among those interviewed by Adoo about the possible reasons for the lack of diversity are Andrea Coomber, the director of JUSTICE, Professor Cheryl Thomas of the UCL Judicial Institute, Dr Hannah Quirk of King’s Law School, and Blessing Mukosha Park of the Blessing at the Bar blog.

Courts

The respective roles of the Lord Chancellor and the Lord Chief Justice in relation to the operation of the Online Procedure Rule Committee have been the topic of recent debates in both Houses of Parliament in a development that brings into focus the separation of powers.

Previously, in the House of Lords, an amendment to the Courts and Tribunals (Online Procedure) Bill proposed by former LCJ Lord Judge was passed to require the government to secure the concurrence of the LCJ, rather than just consulting with him or her, before giving notice to the Online Procedure Rule Committee (OPRC) requiring it to make rules. But in the House of Commons, Justice minister Paul Maynard said the amendment would “fetter” the power of the Lord Chancellor to “give effect to government policy” through rule changes, and the House voted to restore the previous position, whereby the government was only required to consult, not obtain the consent of, the LCJ to any proposed rule change. See Legal Futures, MPs restrict role of Lord Chief in setting online court rules

Crime

New statistics released by the Attorney General’s Office show that in 2018, 99 offenders had their sentences increased under the Unduly Lenient Sentencing Scheme, after they were challenged by the Attorney General and Solicitor General. 23 people were imprisoned immediately after avoiding jail time at their original sentencing. The sentences increased were for crimes including murder, rape, robbery and sexual abuse of children.

You can download the 2018 Unduly Lenient Sentence statistics (MS Excel Spreadsheet, 24.1KB)

One sentence that seems at little risk of being increased is that Carl Beech, who under the guise of “Nick”, made false accusations of historic sexual abuse, mayhem and even murder, against a number of prominent figures in public life, and who was convicted on 12 counts of perverting the course of justice, and one of fraud, for which he was sentenced to a total of 18 years’ imprisonment.

There is a good article about the case by Matthew Scott ( @BarristerBlog) on Quillette: The Many Lies of Carl Beech, and you can read the sentencing remarks of Mr Justice Goss via the Judiciary website. What is shocking in retrospect is how easily Beech was able to hoodwink and harness not just agenda-driven elements in the media with his lurid and fantastical accusations but even apparently sensible politicians, like Tom Watson, deputy leader of the Labour party, who, Scott says, “used his parliamentary voice and privilege to promote Beech’s claims within mainstream political debate”.

For background, there is a good article by Zubair Ahmed QC on 2 Hare Court’s website about the Henriques Review into the conduct of the police investigation of claims like Beech’s and the wrongheaded notion (fomented in by the moral panic engendered by the posthumous revelations about Jimmy Savile) of treating allegations as “credible and true” before even beginning to look for supporting evidence: The Independent Review of the Metropolitan Police Service’s Handling of Non-Recent Sexual Offence Investigations Alleged Against Persons of Public Prominence.

Prisons

One of Robert Buckland QC’s last acts as prisons minister was to announce a pay increase for prison officers, said to be “the highest consolidated increase for more than 10 years”. He said:

By accepting the Prison Service Pay Review Body’s recommendations in full, we are continuing our investment in the prison officers, managers and governors at the very heart of what we do.

The pay award is worth at least 2.2% for all prison staff and a targeted 3% increase for our Band 3 F&S prison officers on the frontline.

This is the second year in a row we have announced above inflation pay rises over 2%. On top of that, we have made further pledges to recruit and retain prison officers and managers, helping to make our prisons safer and reduce reoffending.

In an article entitled Worst ever prison safety figures, Russell Webster notes that

“the latest quarterly safety in Custody statistics bulletin … make for some very difficult reading. The previous bulletin showed the first indication that there may be some slight improvements in prison safety. Unfortunately, the new bulletin, which covers deaths in prison custody for the year to June 2019 and assaults and self-harm for the 12 months to March this year, shows unprecedented levels of self-harm and assaults.”

Though there was a marginal reduction in the number of deaths in custody, from 311 to 309, the increase in those that were self-inflicted, from 81 to 86, was more alarming. Incidents of self-harm and of assaults on staff and on fellow prisoners have all risen, substantially. It does not make happy reading, either for the former prisons minister Rory Stewart, who for a while staked his job on improvements in prison conditions, or Lucy Frazer who now takes over the role (after a brief 11-week stint by Robert Buckland). Webster comments:

“It has been a deeply upsetting task to cover the quarterly Safety in Custody Bulletins as closely as I have done over the last three years.

Because the data are so recent (up to June for deaths and March for self-harm and assaults), I continue to believe they are the most reliable indicator of the state of our prison system.

The scale of violence in our prisons is disturbing to say the least; the number of assaults have doubled in the ten years from 2008 to 2018.

Lack of ministerial stability at the MoJ must be considered to be a contributory factor to the failure to turn round the prison safety figures.”

The House of Commons Justice Committee has launched an inquiry into the ageing prison population. The proportion of people in prison aged over 60 is expected to rise, both in absolute terms and as a proportion of the total prison population. These projections result from more offenders over the age of 50 being sent to prison than are being released — driven by increases in sexual offence proceedings since 2012. Offenders are also receiving longer sentences, which also raises the numbers turning 50, 60 or 70 while in custody.

The Committee’s inquiry will examine the challenges older prisoners face and the services they need, including the adequacy of accommodation, purposeful activity, provision of health and social care, resettlement and whether a national strategy for the treatment of older prisoners is needed. The Committee invites written evidence submissions via the Committee’s website by Tuesday 1 October 2019.

Probation

The House of Commons Justice Committee have published their follow-up report on the disastrous privatisation of probation services, having previously reported on it last year, and the Public Accounts Committee having issued a highly critical report in May this year: see Transforming rehabilitation: progress review (HC 1747) (as discussed in Weekly Notes, 7 May 2019). Following the PAC report, the

“Government announced wholesale changes to the model for delivering probation. Community Rehabilitation Companies (CRCs) will no longer exist after 2019 in Wales and Spring 2021 in England. All offenders will be managed by the National Probation Service (NPS), which will contract out non-core rehabilitative work, such as courses and unpaid work, to the voluntary and private sector.

We support these changes, which are long overdue.”

The report summary goes on to explain:

“In this brief follow-up report, we scrutinise the Government’s actions since June 2018, and consider what approach they should take in the coming months and years of transition to another new system. We draw on oral evidence taken from Dame Glenys Stacey (then HM Inspector of Probation) on 14 May 2019, as well as the pre-appointment hearing for her successor (Justin Russell) on 5 March 2019. We also took oral evidence from the responsible Minister, Robert Buckland QC MP, along with three HMPPS officials, on 12 June 2019.”

Employment

Following proposals made by the Low Pay Commission last year, the Department for Business, Energy & Industrial Strategy has launched a Consultation on measures to address one-sided flexibility. According to the announcement,

“This issue exists within some parts of the labour market, where employers misuse flexible working arrangements, creating an unpredictability in working hours, income insecurity and a reluctance among workers to assert basic employment rights. This consultation seeks views on:

- providing a right to reasonable notice of working hours

- providing workers with compensation for shifts cancelled without reasonable notice

It also seeks views on what guidance government can provide to support employers and encourage best practice to be shared across industries.”

This consultation closes at 11:45pm on 11 October 2019. You can respond online or by email to goodwork@beis.gov.uk

Another consultation, launched by the government’s Equalities Office, concerns Sexual Harassment in the Workplace. Although the Equality Act 2010 says that employers are legally responsible if an employee is sexually harassed at work by another employee, and the employer had not taken all steps they could to prevent it from happening, this is apparently not sufficiently covering certain situations in which harassment is taking place, such as that involving “clients, customers, or other people from outside their organisation”. (This was something that became apparent when the House of Commons Women and Equalities Committee published its report on Sexual harassment in the workplace (HC 725) almost exactly a year ago.)

“We are therefore looking at whether the current laws on this issue provide the protections they’re supposed to; considering whether there are any gaps and thinking about what more can be done at a practical level to ensure people are properly protected at work.”

This consultation closes at 11:59pm on 2 October 2019. Individuals can fill in an online questionnaire in relation to their experiences, but there is also a technical consultation relating to the law which both individuals and organisations can respond to.

Commentary Catchup

The 3rd edition of the Court of Protection Handbook is now published, with the addition of Nicola Mackintosh QC (Hon) to the team of Kate Edwards, Professor Anselm Eldergill, and Sophy Miles. The book addresses in detail the practice and processes of the Court of Protection — across the whole range of its work — in terms that are aimed not only at lawyers but also to the increasing numbers of people who either by choice or otherwise are involved in proceedings before the Court of Protection without legal help.

A new government forms, in which blogger Obiter J considers the new appointments in the cabinet and the likely consequences for Brexit and possibility of an early general election. Or to put it another how, “How long will the new government survive?” (and what might it get done while it does so?)

The Impact of Another Election on the Brexit Process, in which David Allen Green considers the difference a possible general election would have on the existing options for Brexit (which he outlined in an earlier post).

IPSO and Andrew Norfolk: They Just Wont Face Facts, in which Brian Cathcart responds to IPSO’s response to his and Paddy French’s recent report, UNMASKED: Andrew Norfolk, the Times newspaper and anti-Muslim reporting — a case to answer, which we discussed earlier on the ICLR blog. (See Media law, Weekly Notes: legal news from ICLR — 1 July 2019.)

Dates and Deadlines

Middle Temple, London to Cumberland Lodge, Windsor — Saturday 5 October 2019

The 55 km bike ride is in aid of the Sir Paul Jenkins Fund.
Start time 8:30 — return via train. For more details, and to register, please email members@middletemple.org.uk by Friday 13 September.

And finally…

Sir Andrew McFarlane, President of the Family Division, has sent out a special message for “every judge, magistrate, HMCTS staff member, civil servant, CAFCASS officer, social work and lawyer involved in the Family Justice system and Court of Protection in England and Wales.” In it, he says:

“I am writing simply to offer you my profound thanks and appreciation for all that each one of you has done to keep our heavily burdened system up, running and delivering results for the benefit of children and their families during the past 12 months. I know that for many this has not been at all easy at times, and that stress from the unremitting volume of work is not to be under-estimated. Knowing that this is so, redoubles my appreciation for all that you do.

He adds that he hopes everyone will “enjoy a really good break!”

We concur.

That’s it for this week. Thanks for reading, and thanks for all the tweets and blogs and the links to content from which this post was derived. We’ll be taking a break from Weekly Notes over the summer, but will carry on with book reviews, user tips and commentary. So keep an eye on the blog.

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.

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.