Weekly Notes: legal news from ICLR, 7 December 2020

This week’s roundup of legal news and commentary includes constitutional and human rights reform, hate crime and misconduct in public office. (Whom can we possibly mean?)

Fishing for a deal with Europe: image from Shutterstock.

Brexit

Negotiations for future trading relationship with EU—deal or no deal — talks going down to the wire — fish or no fish —eleventh hour —moving of goalposts on level playing field —last minute deal— die in a ditch —governance arrangements — victory salvaged from the jaws of defeat — cont p 94

UK-EU future relationship: Can a deal be reached in time? asked the House of Commons Library briefing back in September. At that time the EU was saying the deadline for concluding talks was the end of October…

“Perhaps some form of agreement will yet emerge from the tortuous future negotiation talks” says Obiter J, in Law and Lawyers: Brexit madness

According David Allen Green, Law and Policy Blog: Brexit will be with either no deal or a deal on the terms of the European Union — and it is difficult to see how any Brexit could have ended differently

See also: How Brexit may lead to Scottish independence and Irish unification

The Law Society is preparing for the worst with its resources page: Brexit and the end of transition

Meanwhile, that architect of disruption (surely “arch Brexiteer”?), Nigel Farage, has turned his attention to more important matters, such as bicycles. See The Sun, ROAD TO RUIN Nigel Farage vows to fight new cycle lanes and road closures causing ‘untold misery’ in £250million ‘green revolution’

Human Rights

Government launches independent review

Sir Peter Gross, the former Lord Justice of Appeal, has been appointed to lead a panel of experts in reviewing the operation of the Human Rights Act 1998 over the last two decades since it came into effect in October 2000, and considering suggestions for reform “to ensure it continues to meet the needs of the society it serves”. The other panellists are: Simon Davis, Baroness O’Loan, Sir Stephen Laws QC, Lisa Giovannetti QC, Professor Maria Cahill, Professor Tom Mullen and Alan Bates.

According to the government announcement the Independent Human Rights Act Review ( IHRAR) review will consider specifically:

• The relationship between the domestic courts and the European Court of Human Rights (ECtHR). This includes how the duty to ‘take into account’ of ECtHR case law has been applied in practice, and whether dialogue between our domestic courts and the ECtHR works effectively and if there is room for improvement.
• The impact of the HRA on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy.
• The implications of the way in which the Human Rights Act applies outside the territory of the UK and whether there is a case for change.

The announcement stresses that

“The UK remains committed to the European Convention on Human Rights. The review is limited to looking at the structural framework of the Human Rights Act, rather than the rights themselves.”

See also: IHRAR Terms of Reference.

Obiter J, Law and Lawyers: Human Rights in the UK ~ Government sets up review of Human Rights Act 1998

Constitution

Fixed Term Parliaments Act review

A Joint Committee on the Fixed-Term Parliaments Act has been established to carry out a review of its operation and consider proposals for its repeal. The committee has launched an inquiry into the Fixed Term Parliaments Act. It was previously considered by the House of Lords Constitution Committee, who published their report in September: A Question of Confidence? The Fixed-term Parliaments Act 2011

The government has now brought forward a Draft Fixed-term Parliaments Act (Repeal) Bill.

David Allen Green on The Law and Policy Blog discusses the 2011 Act and proposals for its repeal on his Law and Policy Blog: The Fixed-term Parliaments Act 2011 has been a failure — but the decision for an early general election should not be in the hands of the prime minister

Mark Elliott on Public Law for Everyone discusses some of the constitutional law aspects: Repealing the Fixed-term Parliaments Act

Obiter J, Law and Lawyers: Proposed Repeal of Fixed-term Parliaments Act 2011

ICLR blog: Rolling review — What a Fix-Up!: The Fixed-term Parliaments Act 2011 by Carl Gardner

Crime

Misconduct in public office

The Law Commission has recommended reform of the outdated offence of misconduct in public office. The reforms would introduce two new statutory offences to replace the ancient common law offence, provide greater clarity, and target the most serious forms of misconduct in public office. As it explains on its website:

“Misconduct in public office is a common law offence: it is not defined in any statute. It carries a maximum sentence of life imprisonment. The offence requires that: a public officer acting as such; wilfully neglects to perform his or her duty and/or wilfully misconducts him or herself; to such a degree as to amount to an abuse of the public’s trust in the office holder; without reasonable excuse or justification.

The offence is widely considered to be ill-defined and has been subject to recent criticism by the Government, the Court of Appeal, the press and legal academics.”

In its final report the Law Commission recommends that the current offence should be repealed and replaced with two statutory offences:

• An offence of corruption in public office: which would apply where a public office holder knowingly uses or fails to use their public position or power for the purpose of achieving a benefit or detriment, where that behaviour would be considered seriously improper by a “reasonable person”. A defendant to this offence will have a defence if they can demonstrate that their conduct was, in all the circumstances, in the public interest.
• An offence of breach of duty in public office: which would apply where a public office holder is subject to and aware of a duty to prevent death or serious injury that arises only by virtue of the functions of the public office, they breach that duty, and in doing so are reckless as to the risk of death or serious injury.

See also: Joshua Rozenberg, A Lawyer Writes: Misconduct in public office

Hate crime

The Law Commission is also looking into reforming the law on hate crime. The current law is piecemeal and inconsistent. It also lacks clarity and fails to cover certain protected characteristics adequately.

In a consultation paper, launched on 23 September 2020, the Law Commission have made a number of proposals for reform of hate crime laws. These include:

• Equalising protection across all of the existing protected characteristics. This would involve extending the application of aggravated offences, stirring up hatred offences, and potentially football chanting offences to those characteristics that are not already covered
• Adding sex or gender to the protected characteristics.
• Establishing criteria for deciding whether any additional characteristics should be recognised in hate crime laws, and consulting further on a range of other characteristics, notably “age”.
• Reformulating the offences of stirring up hatred to focus on deliberate incitement of hatred, providing greater protection for freedom of speech where no intent to incite hatred can be proven.
• Expanding the offence of racist chanting at football matches to cover homophobic chanting, and other forms of behaviour, such as gestures and throwing missiles at players.

The Law Commission are holding an online consultation event from 2pm to 3:30pm on Thursday 10 December. The event will be conducted using Microsoft Teams. You can register to attend the event, here

Recent publications of interest

Criminal records

In New criminal record disclosure rules take effect, Samuel March on the UK Human Rights Blog reports on important changes to the criminal records disclosure rules in England and Wales brought in by the The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020 which came into force on the 28 November 2020.

Courts

Family courts coronavirus recovery update — Transparency Project reports on HMCTS’s latest efforts to improve their capacity to deal with cases remotely and start to reduce some of the mounting backlog of family cases.

It notes that extended operating hours are not expected to be tried for family courts. However, the plan to implement them in criminal courts has prompted a furious backlash from the Criminal Bar Association: see Members Announcement: Extended Operating Hours 03.12.20

See also this thread on Twitter from Crimeline

Housing

Leaseholders and build defects webinar, given by Giles Peaker and Jenny Evans of Anthony Gold solicitors, discussed build defects, issues and remedies for leaseholders. The video of the webinar is free to view here

Human Rights

In three linked posts on the UK Human Rights Blog, Shaheen Rahman considers Article 2 of the ECHR and the provision of healthcare: Part 1 examined the leading case of Lopes de Sousa Fernandes v. Portugal (application no. 56080/13) and part 2 considered how it has been interpreted and applied. Part 3 considers the recent decision of R (Maguire) v HM Senior Coroner for Blackpool [2020] EWCA Civ 738; [2020] 3 WLR 1268; [2020] WLR(D) 333.

Media law

Some interesting recent posts on Inforrm’s Blog including:

• Guy Vassall-Adams QC: Corporate Claimants in Libel Cases: Part 1, The Case for Reform and Part 2, The Defamation Act 2013 and its Impact
• Jonathan Coad: The Defamation Act and the Public Interest: Part 1, Corporate Claimants, An Alternative View and Part 2, The Section 4 Defence, An Alternative View
• John Kent, Jayne Kirkham, Colin Ward: Children’s Rights: Whatever Happened To The Online Harms Bill?

Two posts criticising IPSO:

• Michael Munnik: IPSO: press regulator’s ‘guidance’ for reporting on Muslims is not fit for purpose
• Hacked Off: A quiet revolution in press standards: IMPRESS overtakes IPSO to become dominant standards body

Public inquiries

The Justice Gap describes as ‘Shameful and inexcusable’ the recent announcement by Northern Ireland Secretary Brandon Lewis of the government’s decision to hold No public inquiry into Pat Finucane’s murder

Finucane was brutally killed in his Belfast home in 1989 during the Troubles and a commitment to a full public inquiry was made by Blair’s Labour government in 2001, which successive governments, including now this one, have failed to implement.

Technology

Is Law Tech augmented lawyering? asked Richard Moorhead in a recent post on his Lawyer Watch blog. He discusses a recent paper by John Armour, Richard Parnham and Mari Sako on ‘Augmented Lawyering’ which looks as the impact artificial intelligence and “associated digital technology” will have on the work of lawyers and the structure of law firms.

Sentencing

Is less more or the same? asks Penelope Gibbs, in a LinkedIn article, discussing whether more onerous conditions or rehabilitative programmes are really any more effective in preventing reoffending than a basic police caution.

US Elections

In The failed appeal of Trump over Pennsylvania — and the relationship between politics and law David Allen Green discusses another recent setback for the doomed attempt by the Donald J Trump campaign to overturn the results of last month’s US Presidential Election.

In the latest development in this saga, the US Supreme Court refused (in a single sentence decision) to consider another election claim appeal, this time brough by some sympathetic (to Trump) Republicans. See Guardian, Supreme court rejects Republican bid to overturn Biden’s Pennsylvania victory.

And finally…

Tweet of the week

in which barrister and mediator Laura Vickers revisits the anxious matter of video hearing backgrounds, with an elf on the shelf:

No jokes, please, about “elf isolation”.

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.