Weekly Notes: legal news from ICLR, 31 October 2022

This week’s roundup of legal news includes draft legislation and open justice, plus recent cases and commentary.

Houses of Parliament (Shutterstock)

Legislation

The reappointment by last week’s brand new Prime Minister, Rishi Sunak, of Dominic Raab as Lord Chancellor and Secretary of State for Justice (bis) must presumably suggest a strong likelihood of a revival of Raab’s legislative hobby horse, the Bill of Rights Bill (BORB), which was abandoned following the collapse of the Boris Johnson premiership and the appointment (all too brief) of Brandon Lewis in Raab’s place.

Raab will be busy enough as it is, defending his department against the prospect of Treasury cuts, as new Chancellor of the Exchequer Jeremy Hunt takes a scythe to public spending; and he will be under pressure to give effect to his temporary predecessor’s agreement with the Criminal Bar Association over legal aid fees; but the BORB is his Bill and it seems unlikely he will want to leave it in suspension for long. However, he has indicated that he would not go as far as some other ministers (the reinstated Home Secretary, Suella Braverman, for instance) in rejecting altogether the oversight of the European Court of Human Rights: his Bill merely seeks to restrain the enthusiastic application of its case law by domestic courts. (Not so his parliamentary colleague Peter Bone, whose private members Bill would appear to go a lot further, judging by its title: British Bill of Rights and Withdrawal from the European Convention on Human Rights Bill, described as “A Bill to make provision for an application to the Council of Europe to withdraw from the European Convention on Human Rights and the introduction of a British Bill of Rights”.)

The BORB was the subject of a good deal of feedback and commentary, whose relevance has been given fresh impetus. The Law Society expressed its concern that the Bill “would damage the rule of law and make it harder for people to protect their rights”. A number of commentators and organisations have expressed their dismay at the prospect of its return to the legislative agenda.

British Institute of Human Rights (BIHR), Update on The Rights Removal Bill: Why There is No Room for Complacency

Law Society: Human Rights Act reforms and the Bill of Rights Bill

Each Other: What Could Prime Minister Rishi Sunak Mean for Human Rights?

Joshua Rozenberg, A Lawyer Writes:

David Allen Green, Law and Policy Blog, Here we go again: Raab returns to the Ministry of Justice

Reuters: UK has no plan to leave ECHR, Raab says

Meanwhile, other hobby horses are also on the race card.

There is ex-minister Jacob Rees-Mogg’s Retained EU Law (Reform and Revocation) Bill which proposes to “sunset” any provisions of EU law that haven’t been legislatively preserved, updated or replaced.

There is Liz Truss’s Northern Ireland Protocol Bill designed to prevent certain bits of the NIP from taking effect under domestic law. According to a House of Lords Library briefing, “The government acknowledges the bill envisages the non-performance of some of the UK’s international obligations. It maintains this is justified in international law by the doctrine of necessity.” One detects a certain buccaneering recklessness in all this which might perhaps also reflect a sense of needing to get things through before the next general election.

However, the Online Safety Bill brought forward by former Secretary of State for Digital, Culture, Media and Sport Nadine Dorries, which had reached its report stage, has been withdrawn from the House of Commons schedule next week. Her replacement, Michelle Donelan, has said she will make changes to bits of the Bill dealing with ‘legal but harmful speech’ to ensure it does not harm freedom of expression, and her department said the delay is to allow MPs time to read the new amendments which have yet to be laid. The DCMS denied that the overall progress of the Bill was being delayed.

You can see all 208 current Bills here.

See also: Public Law Project second reading briefing on the Retained EU Law (Revocation and Reform) Bill

Tech Crunch: UK government denies fresh delay to Online Safety Bill will derail it

Open Justice

The House of Commons Justice Committee published [on 1 November] its report Open justice: court reporting in the digital age following an inquiry into how the digitisation of the courts and the media is changing the way in which the public access court proceedings. The ICLR was among the organisations and individuals who contributed evidence. The report’s opening summary highlights areas of concern.

Our report highlights evidence from journalists about the practical difficulties they encounter reporting on the courts. Journalists and members of the public often have to overcome significant barriers to identify, attend and follow court proceedings. Across the justice system there are additionally significant variations in the accessibility and quality of information available on ongoing court proceedings. …

Court reform has led to some challenges for open justice. Online procedures introduced in the criminal and civil courts have been designed to increase efficiency but some have argued that they have had a negative impact on transparency. In particular, the Single Justice Procedure has long been criticised for being insufficiently transparent.

The report recommends that HM Courts and Tribunals Service (HMCTS), who manage the courts, should establish a “single digital portal which the media and the public can use to access information on court proceedings, court documents and other relevant information” and that “HMCTS should review the [single justice] procedure and ensure that it is as transparent as proceedings in open court”.

Finally, the report welcomes and looks forward to seeing the results of the piloting of any changes recommended by the President of the Family Division’s Transparency Review, which is still being worked on by the various subcommittees of his Transparency Implementation Group (TIG) (which we reported on in Weekly Notes, 3 October 2022.) However, it recommends (something suggested by many of those who contributed evidence on this) that “the legislative framework governing the reporting on family proceedings should be reviewed and reformed, as it is no longer fit for purpose”.

In the main report there is also a discussion about access to judgment transcripts, welcoming the establishment of the National Archives Find Case Law Service as a first step, and a recommendation — presumably in respect of oral judgments whose transcription must be paid for — that

“HMCTS should reform the way that judgments are collected, stored and published so that there is less reliance on commercial legal publishers. The judgments of courts are the product of a publicly funded justice system and the public, the media and the legal sector should not have to pay significant sums for access.”

In an extraordinary (at least one would hope it was) case, the Court of Protection held a parallel hearing so secret that some of the parties in the main hearing were not even aware it had taken place or that an order made in it had been implemented. That meant that those parties were conducting themselves in the main proceedings on the basis of an incomplete, one might even say false, appreciation of the true facts. Moreover, those attempting to report the proceedings were induced to do so on a misleading basis, effectively undermining any attempt to achieve open justice.

The whole remarkable story has now been explained by Joshua Rozenberg in a post on A Lawyer Writes, Open justice at the Court of Protection? The case involved a mother and daughter, whose “enmeshed” relationship was impeding the daughter getting proper treatment for a condition. In the secret hearing the Court of Protection ordered the treatment to be administered covertly, and it was — but in subsequent open court proceedings the fact that the treatment had been administered was not apparent to the mother or her legal representative. They were only informed that the treatment had, successfully, been administered by the judge at that hearing.

The case was initially reported by Celia Kitzinger of the Open Justice Court of Protection Project, who was dismayed to find that she had effectively been misreporting the case in an earlier post (Medical treatment, undue influence and delayed puberty: A baffling case) because a “magnetic” fact had been meticulously concealed at the open hearing. Once the judge at the open hearing had disclosed the true position, the project felt bound to issue a statement (Statement from the Open Justice Court of Protection Project concerning an inaccurate and misleading blog post) and then a revised post about the case itself (Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44). The project’s statement said:

“We believe (as Celia Kitzinger said to Poole J in court) that the conduct of proceedings in this case has undermined the work of open justice and transparency in the Court of Protection.”

The case was also reported by Daniel Cloake (“I have to tell you something which may well come as a shock”, says Court of Protection judge), who observed:

“The idea that a blogger was allowed to attend the hearing in April 2022, and seemingly not be discouraged from reporting on what ultimately was a sham hearing I find astonishing.”

Rozenberg has since covered the matter in an episode of BBC Radio 4 Law in Action (25/10/22), including his attempts to get a judicial response, as explained in his blog post.

More commentary

In Looking Forward: Forecasting Technology Developments in the Legal System, Redux (SLAW), Sarah A Sutherland peers into her digital crystal ball and updates her law tech predictions for the near and slightly farther future. They include the effects of the covid pandemic and recent financial shocks as well as developments in technology generally and the transition to virtual hearings and automated dispute resolution.

In Hague Mothers (Transparency Project) Dr Julie Doughty reports on a session organised by the Filia Hague Mothers project at an international feminist conference held in Cardiff over the weekend, at which the Hague Convention on International Abduction was described as ‘a good law gone bad’. It was designed to bring children back into their own jurisdiction swiftly, where any outstanding legal issues over residence and the child’s best interests could be dealt with in the relevant court. However, by the 1990s, it became clear that the Convention has developed into a mechanism whereby about three quarters of applications are made by fathers, and in many cases where their ex-partners have fled an abusive situation with their children. Awareness of this dilemma, affecting many families, led to the Hague Mothers project being set up by Ruth Dineen and adopted as a Filia Legacy project last year.

In Putting small boat crossings in perspective (Free Movement) Colin Yeo explains why there are problems dealing with the increasing numbers arriving in small boats across the English channel, but that the numbers are not as overwhelming as one might think, compared to other categories of refugees arriving in Britain.

A new report by experts from The University of Manchester and barrister Keir Monteith KC has raised urgent questions about racial attitudes and practices in the justice system in England and Wales. The report draws on a survey of 373 legal professionals. Overall, the report suggests that the data collected amounts to evidence of ‘institutional racism’ in the justice system presided over by judges.

“Judges need to sit up and listen, because it is a myth that Lady Justice is blind to colour,” said Professor Leslie Thomas KC, who wrote the report’s Foreword. “Our judiciary as an institution is just as racist as our police forces, our education system and our health service — this is something that cannot be ignored for any longer.”

Recent case summaries from ICLR

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

ARBITRATION — Arbitrator — Jurisdiction: National Iranian Oil Co v Crescent Petroleum Co International Ltd, 21 Oct 2022 [2022] EWHC 2641 (Comm); [2022] WLR(D) 420, KBD

CONFLICT OF LAWS — Tort — Applicable law: Sedgwick v Mapfre Espana Compania de Seguros y Reaseguros SA, 26 Oct 2022 [2022] EWHC 2704 (KB); [2022] WLR(D) 419, KBD

CONTRACT — Construction — Bareboat charter: Ceto Shipping Corpn v Savory Shipping Inc, 21 Oct 2022 [2022] EWHC 2636 (Comm); [2022] WLR(D) 412, KBD

CONTRACT — Rectification — Collective agreement: Tyne and Wear Passenger Transport Executive (t/a Nexus) v National Union of Rail, Maritime and Transport Workers, 27 Oct 2022 [2022] EWCA Civ 1408; [2022] WLR(D) 421, CA

CORONER — Inquest — Verdict: R (Morahan) v West London Assistant Coroner, 28 Oct 2022 [2022] EWCA Civ 1410; [2022] WLR(D) 418, CA

COSTS — Detailed assessment — Bill of costs: Karatysz v SGI Legal LLP, 27 Oct 2022 [2022] EWCA Civ 1388; [2022] WLR(D) 416, CA

INSOLVENCY — Winding up — Petition: Doran v County Rentals Ltd (t/a Hunters), 24 Oct 2022 [2022] EWCA Civ 1376; [2022] WLR(D) 414, CA

LANDLORD AND TENANT — Lease — Rent: Stampfer v Avon Ground Rents Ltd, 24 Oct 2022 [2022] EWCA Civ 1375; [2022] WLR(D) 411, CA

PLANNING — Gipsies and travellers — Planning policy: Smith v Secretary of State for Housing, Communities and Local Government, 31 Oct 2022 [2022] EWCA Civ 1391; [2022] WLR(D) 422, CA

SOLICITOR — Costs — Conditional fee agreement: Belsner v Cam Legal Services Ltd, 27 Oct 2022 [2022] EWCA Civ 1387; [2022] WLR(D) 415, CA

Dates and deadlines

Tortoise Think-In — Wednesday 2 November 2022, 18:30–19:30 GMT

Join Louise Tickle and a panel and audience of journalists, editors and lawyers who have battled to shine a line on the inner workings of the family courts, to discuss what next for greater transparency — how will the reporting pilot work and does it go far enough? An event by Tortoise Media and The Bureau of Investigative Journalism. More details here.

Park Plaza Westminster Bridge London — Monday 28 November

The 12th annual Family Law Awards recognise the important work of family lawyers and celebrate their many successes and outstanding achievements. The shortlist and winners will once again be chosen by a judging panel made up of the heads of the Family Law Bar Association, Resolution, the Association of Lawyers for Children and the Chartered Institute of Legal Executives, along with Family Law editors and publishing professionals. Two of this year’s Family Law Awards will be voted for by the family law community: Family Law Clerking Team of the Year and Family Law Commentator of the Year. A shortlist of entrants has been selected by the judges from the entries received.

To confirm your place at the awards ceremony, book online here.

And finally…

is from legal marketeer Helen Burness, curling up with a good read in a fancy hotel:

Cases reported in the 1966 WLR include such ancient favourites as Rondel v Worsley [1966] 3 WLR 950 (CA) on barrister’s negligence, Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1966] 2 WLR 1043 (CA) on price agreements in restraint of trade, and The Wagon Mound (No 2) [1966] 3 WLR 498 (PC) on negligence and foreseeability. (All were also subsequently reported in The Law Reports.) But that’s probably not why the book was in a hotel. More likely simply because, as the saying goes, “books do furnish a room”.

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

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 publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.