Weekly Notes: legal news from ICLR, 6 March 2023
This week’s roundup of legal news includes Brexit, prisons, politics and whatnot; plus recent case law and commentary.
In an effort to solve problems arising from the Northern Ireland Protocol, and following constructive negotiations with the European Union, the government has proposed a new agreement to regulate the movement of goods between the British mainland and Northern Ireland. The Windsor Framework (CP 806) “fundamentally amends the text and provisions of the original Protocol to uphold Northern Ireland’s integral place in the United Kingdom, address the democratic deficit and set out a new way forward”.
The WF delivers a form of dual regulation based on the restoration of Northern Ireland’s place in the UK internal market, and reflecting the dependence of Northern Ireland’s economic life on trade within the United Kingdom. It is said to safeguard Northern Ireland’s place in the Union, and to address the democratic deficit in the legal and political framework that underpinned the old Protocol, restoring democratic oversight in line with the principles of the Belfast (Good Friday) Agreement.
Under the agreement, goods from Great Britain which are intended to remain in Northern Ireland would enter via a “green lane”, with minimal paperwork and no routine physical checks. But goods destined for onward carriage across the border into the Republic of Ireland would use a “red lane”, and be subject to customs processes and EU regulation.
A power of veto, referred to as the Stormont Brake, will enable the NI Assembly to block any new or amended EU goods rules that would have a significant impact on the day-to-day lives of businesses and citizens. The exercise of that power can only be challenged through independent arbitration mechanisms, not the ECJ.
Prof Steve Peers, EU Law Analysis:
- The Windsor Framework: limiting the scope of EU law in Northern Ireland in practice, though not in theory (part 1)
- Just Say No? The new ‘Stormont Brake’ in the Windsor Framework (part 2 of the analysis of the framework)
David Allen Green, The Lore and Law Blog: Is the “Stormont Brake” an instrument or an ornament?
Joshua Rozenberg, A Lawyer Writes: Stormont brake
Rapid Deployment Cells
The government has announced completion of the first batch of 48 “rapid deployment cells” — or what might equally be called Nightingale prisons — at HMP Norwich, as over 1,000 of these units being rolled out at 18 sites across the country.
The cells at Norwich are already taking their first prisoners, having been constructed and lifted into place just seven months after the signing of contracts, according to the Prison and Probation Service. Rapid deployment cells, built and rolled-out at speed, have a lifespan of around 15 years and are designed to “boost jail capacity and keep the public safe while longer-term expansion is underway”. That longer-term expansion includes
“creating 20,000 additional places to achieve the vision set out in the Prison Strategy White Paper of a resilient system which can meet the capacity demands of the 21st century. This includes building 6 new jails backed by over £4 billion.
“This spring the 1,700-capacity HMP Fosse Way near Leicester will open its doors, and construction has already started on HMP Millsike, the UK’s first all-electric prison in East Yorkshire, which will hold nearly 1,500 prisoners when full.”
According to the latest prison population figures the current operational capacity of the prison estate is 85,132 and the current population is 83,990, so there’s not much spare capacity. In the meantime, tough talk about putting miscreants “behind bars” to keep the public safe — subject to police being available to solve crimes and catch them, their cases getting through the huge court backlog, finding counsel and judges and jurors to try them — will no doubt increase the pressure on the correctional system.
Those figures are published weekly and up to date; but the figures for what can happen to people when inside take a bit longer to compile: the latest quarterly update of Safety in Custody Statistics for England and Wales cover Deaths in Prison Custody to December 2021, Assaults and Self-harm to September 2021.
The House of Commons Committee of Privileges has published its report on the Matter referred on 21 April 2022: summary of issues to be raised with Mr Johnson (HC 1203). It concerns the committee’s inquiry into whether Boris Johnson MP misled the House of Commons over alleged breaches of the lockdown regulations and, if so, whether he committed a contempt.
The matter having been referred to the committee, it was required to conduct its own investigation into the matter, and to provide the subject of the inquiry (Boris Johnson) the opportunity to see the results of the investigation. That is the purpose of this report. The committee could not or did not begin work until after the completion of investigations by the police (who issued a number of fixed penalties to Johnson and others) and by the Second Permanent Secretary at the Cabinet Office (ie Sue Gray, with “the Gray Report”).
This inquiry is not about whether Johnson and his chums broke the regulations. It’s about whether he lied about the matter to the House. The committee has considered what he said to the House, whether it was correct or misleading, how quickly and comprehensively any misleading statement was corrected, and, if the House was misled, whether that amounted to a contempt of the House by impeding the functions of the House or tending to do so.
The report sets out the case which Johnson must answer. There is obviously a difference between what was found to have happened and what Johnson told Parliament about it at the time, but the question is whether he knew or ought to have known better and failed to give an honest account of it at the time. When he was in the hot seat, were his pants on fire? Faced with these questions, will he huff and puff and hope for it all to blow over?
For more on this, see David Allen Green, Law and Policy Blog, Johnson’s choices, Johnson’s choice
He has also commented on Sue Gray’s decision to leave the Civil Service and accept a job with Sir Kier Starmer, Leader of the Opposition, which has tainted with retrospective allegations of bias her report on the antics of the former Prime Minister: Why the appointment of Sue Gray is both a mistake and not a mistake
What’sApp with Hancock
The Daily Telegraph have been publishing extracts from thousands of WhatsApp messages between Matt Hancock and other ministers and civil servants during his time as Health Secretary, which he’d given to his ghostwriter, Isabel Oakeshott, for the sole purposes of helping him write his book The Pandemic Diaries. The messages have exposed much of the cynicism, desperation and muddle that you’d expect of confidential communications between ambitious politicians dealing with a crisis well beyond their normal scope of competence. They undermine the veracity of a lot of what was said in public at the time. The newspaper’s use of the material forms part of what it calls its Lockdown files investigation, which is generally critical of the government’s management of the pandemic.
Oakeshott is said to have signed a non-disclosure agreement (NDA) in respect of her use of the material, which she appears to have broken in what she and the Telegraph claim to be the public interest. Depending on the terms of the NDA and under the more general law or equitable doctrine of confidentiality, Hancock may have a cause of action against his former ghost, but it’s unlikely to avail him much in his political career, which he appears to have abandoned in favour of reality TV stardom and other exciting plans, though he remains an MP and continues to campaign for local issues such as bus routes and road safety.
Leaving Hancock to his fate, there remains concern over the damage done by Oakeshott’s conduct to the normal expectation of trust between a journalist and their source. On the whole, journalists are expected to protect, not shop, their sources.
For more on this, see:
- BBC, Matt Hancock and Isabel Oakeshott: A tale of scoops, betrayal and WhatsApp
- Brett Wilson LLP, Media and Communication Law Blog, Matt Hancock’s WhatsApp messages: Can Isabel Oakeshott’s breach of confidence be justified?
- David Allen Green, Law and Policy Blog, NDAs and the Public Interest — a beginner’s guide for Matt Hancock and others
- Joshua Rozenberg, A Lawyer Writes, The lockdown files (asking if the government’s National Security Bill might have deterred the Telegraph from publishing this sort of material)
Other recent items
Transparency in the Family Courts and the Court of Protection: what are the differences?
With the recent launch of the Transparency Reporting Pilot in the family courts, there may be a risk of confusion over some of the terminology, such as “Transparency Orders”, already used in the Court of Protection, and misunderstanding over the role of “legal bloggers”. This post on the Transparency Project blog recaps the different journeys the two types of court have travelled to get to where they are today, in terms of transparency, and explains the different meanings of some overlapping terminology.
A “modest step in the right direction”
Spotlight on Corruption reports on a Lords amendment, known as Amendment 51, which “seeks to place an overarching responsibility on political parties to say how they will deal with direct or indirect foreign donations if they are offered to them”. The amendment would for the first time require UK political parties to identify and manage the risks of donations originating from foreign powers.
Strikes Bill fails to meet human rights obligations — JCHR
Following legislative scrutiny of the Strikes (Minimum Service Level) Bill, Parliament’s Joint Committee on Human Rights has published a report in which it finds that the proposed reforms, that would make it easier to sack striking workers and leave unions at risk of million-pound fines, “do not appear to be justified and need to be reconsidered”. The committee finds that “it would be possible to introduce minimum service levels in some sectors in a way that is more likely to be compliant with human rights law”.
BVL: Model Law Commission Report 2022
Should children of 16 be allowed to write a will? Should they learn about NFTs and cryptoassets at school? Should they learn more about cybercrime? These are just some of the questions asked and answered by the young people from non-fee paying schools who, thanks to the social mobility charity BVL, have immersed themselves in a particular area of the law, researched an issue that needs reform, and suggested what might be done about it. We review their report on the ICLR blog.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
ASSIGNMENT — Equitable — Disposition of equitable interest: LA Micro Group (UK) Ltd v LA Micro Group Inc, 28 Feb 2023  EWCA Civ 214;  WLR(D) 111, CA
CHILDREN — Care proceedings — Fact-finding hearing: In re P, H-L (Children) (Mobile Phone Extraction), 27 Feb 2023  EWCA Civ 206;  WLR(D) 94, CA
CRIME — Illegal immigrant — Assisting unlawful immigration: R v Mohamed (Ashari) (R v Mohamed (Khdeir), R v Aldaw (Mustafa)), 02 Mar 2023  EWCA Crim 211;  WLR(D) 109, CA
CRIME — Sentence — Assault on emergency worker: R v Ali (Arie), 03 Mar 2023  EWCA Crim 232;  WLR(D) 110, CA
CROWN COURT — Appeal to — Dismissal of appeal: R (Lawal) v Crown Court at Cambridge, 03 Mar 2023  EWHC 466 (Admin);  WLR(D) 112, KBD
DEFAMATION — Libel — Serious harm: Banks v Cadwalladr, 28 Feb 2023  EWCA Civ 219;  WLR(D) 105, CA
EMPLOYMENT — Working time provisions — Rest periods: IH v MÁV-START Vasúti Személyszállító Zrt, 02 Mar 2023 (Case C-477/21); EU:C:2023:140;  WLR(D) 106, ECJ
LOCAL GOVERNMENT — Ombudsman — Jurisdiction: R (Milburn) v Local Government and Social Care Ombudsman and another, 28 Feb 2023  EWCA Civ 207;  WLR(D) 97, CA
PRACTICE — Pleadings — Striking out: Warburton v Chief Constable of the Avon and Somerset Constabulary, 02 Mar 2023  EWCA Civ 209;  WLR(D) 107, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
UK Supreme Court Blog: New Judgment: News Corp UK and Ireland Ltd v Revenue and Customs Comrs  UKSC 7, SC(E)
Free Movement: Differential treatment of Ukrainian and Afghan applications justified on national security grounds: R (AB) v Secretary of State for the Home Department  EWHC 287 (Admin), KBD
RPC Perspectives: Tribunal confirms that dividends declared but withheld from recipients do not constitute taxable income: Jays v Revenue & Customs Comrs  UKFTT 420 (TC), FTT (TC)
RPC Perspectives: High Court favours English jurisdiction in bribery claim brought by Kuwaiti pension fund: Public Institution for Social Security v Ruimy  EWHC 177 (Comm), KBD
Electronic Immigration Network: Why thousands of people who thought they were British could lose their citizenship: R (Roehrig) v Secretary of State for the Home Department  EWHC 31 (Admin);  WLR(D) 38, QBD
Free Movement: Trafficking victims should get leave during their asylum claim: R (SSA) (Ethiopia) v Secretary of State for the Home Department  UKAITUR JR2021LON001894, UT (IAC)
Solicitors Journal: First High Court judgment awarding compensation in revenge porn case: FGX v Gaunt  EWHC 419 (KB), KBD
5RB Chambers: Arron Banks wins Cadwalladr TED Talk appeal: Banks v Cadwalladr  EWCA Civ 219;  WLR(D) 105, CA
Nearly Legal: Rent Repayment Orders — just the immediate landlord: Jepsen v Rakusen  UKSC 9, SC(E)
Transparency Project: Deprivation of Liberty and the black mirror: Manchester City Council v CP & Ors  EWHC 133 (Fam), Fam D
Free Movement: Court of Appeal dismisses appeal against criminalising small boat arrivals: R v Mohamed (Ashari)  EWCA Crim 211, CA
2023 Pupillage Award
If you are taking up pupillage in Autumn 2023, paid a total for the pupillage year of no more than £30,000 (including guaranteed earnings), you could receive our top-up award of a further £13,000.
In recognition of the difficulties faced by many talented individuals during pupillage, the ICLR currently awards an annual bursary worth £13,000 in direct financial assistance to a pupil during the course of their 12 month pupillage in Chambers.
To find out more, see Application page.
A reminder (via Sian Harrison) on How to be Top… (click on the quote to see in full):
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.