Weekly Notes: legal news from ICLR, 7 July 2023
This latest roundup of legal news includes court reform, family law and media regulation (or the lack thereof); plus recent case law and commentary.
Seven years into its proudly boasted £1.3bn court modernisation programme, HM Courts & Tribunals Service (HMCTS) is once again falling behind on delivering critical reforms to its services. Overall, despite an increase in budget, the programme is set to deliver less than originally planned, at a time when the reforms are even more vital to help reduce extensive court backlogs.
Such is the verdict of the Public Accounts Committee, a select committee of the House of Commons, in its latest report, Progress on the courts and tribunals reform programme (HC 1002), published on 30 June 2023. In a summary of its findings, the committee said:
- We are seriously concerned that despite a long history of resets to the programme, HMCTS has had to revise and delay its plans again.
- HMCTS’s failure to engage sufficiently with staff and stakeholders throughout the common platform rollout has increased the burden on courts and staff already under significant pressure.
- We are concerned that HMCTS does not yet fully understand how reforms are impacting court users, victims, or the public’s access to justice.
- HMCTS and the Ministry cannot fully assess whether the reforms have provided value for money as they have not captured the full costs of the programme.
- HMCTS has not specified how its recent changes to the programme will impact the savings promised, nor can it demonstrate whether reformed services are on track to deliver the required efficiencies.
- The Ministry and HMCTS have not demonstrated that lessons learned from this reform programme and their other major projects have been put into practice effectively.
The committee make a number of recommendations to address these issues.
The Reform programme was hugely ambitious from the start, and has encountered problems both of its own making and not of its own making over the six years since it was launched. Earlier reports by the National Audit Office have been similarly critical of the project’s lack of progress, and a report by Dr Natalie Byrom for The Legal Education Foundation was critical of its lack of a coherent approach to data collection and management.
- Law Society Gazette, MPs criticise HMCTS for ‘burning through’ £1.3bn court reform budget
- Joshua Rozenberg, A Lawyer Writes, Court reform: the verdict
Marriage and matrimony
What is the difference between marriage and holy matrimony? Is it just religious? In Marriage and/or Holy Matrimony, a guest post on the Law & Religion UK blog, HH Peter Collier KC looks critically at the controversy between the treatment of the institution of Holy Matrimony and the institution of civil marriage as distinct realities.
The post is prompted by legal advice given to the General Synod of the Church of England, but it considers the history of marriage in its cultural as well as legal dimensions and includes a reference to cases such as Hyde v Hyde (1866) LR 1 PD 130, in which the Lord Ordinary, Sir James Wilde (later Lord Penzance) established the classic definition of marriage for the purposes of English law. Commenting on that historic definition, Collier observes:
“We have now reached the position which would have been quite unimaginable to Lord Penzance — that in England and Wales the state recognises as a marriage a relationship between two people of the same sex and affords that couple the same status of being married as it does a marriage between a man and a woman, with all its attendant privileges and responsibilities. But the relationship between people of the same sex is not something that would have been recognised by Christendom as marriage, any more than would a polygamous marriage. And in Lord Penzance’s words to express these two separate relations by a common term does not make them one and the same thing.”
See also, the ICLR Annual Lecture given by Sir James Munby, then President of the Family Division, on 25 April 2013 at the Law Society: Marriage From The Eighteenth Century To The Twentyfirst Century
IPSO’s Clarkson ruling
Some hateful and disgraceful remarks directed to the Duchess of Sussex by the well known motoring correspondent and farmer Jeremy Clarkson, in his column in The Sun on Friday, 16 December 2022 prompted the largest ever number of complaints ever received by the media regulator IPSO (Independent Press Standards Organisation).
Of the more than 25,000 complaints, IPSO rejected all but two under their own rules, which require the person complaining to have been “personally and directly affected by the alleged breach of the Editors’ Code” unless the complaint concerns a matter of factual inaccuracy. The two complaints they deigned to entertain were from representative organisations, The Fawcett Society and The Wilde Foundation, who said they were affected by breaches of Clause 1 (Accuracy), Clause 3 (Harassment) and Clause 12 (Discrimination) in the article.
The Committee considering the complaint said they had disregarded the question of whether the article was offensive; the only question was whether it breached the Code. They upheld the complaint of a breach of Clause 12 (i) of the Editors’ Code in relation to sex, finding the article contained pejorative and prejudicial references to the Duchess of Sussex’s’ sex; but they rejected a similar complaint in relation to race. And they also rejected the complaints of harassment under clause 3 and inaccuracy under clause 1. See 18626–22 The Fawcett Society and The WILDE Foundation v The Sun
Having found at least one of the complaints made out, the committee then had to decide what to do about it. In most such cases they require the publication to publish a copy of the adjudication, with suitable prominence, which they decided meant having it appear on the same page (17) as the original article, with a headline flagging it up on the front page. As you can see from this photo posted by Sunder Katwala on Twitter, this was not exactly calculated to catch the reader’s eye, given the rest of the layout.
At the time these complaints were made, IPSO had just published new guidance on the prominence to be given to corrections by publications required to publish them. This included a reminder that “The Editors’ Code places a clear requirement on editors to correct issues promptly and with sufficient prominence”. The length of time it has taken IPSO to consider and decide this complaint and get something done about it — more than six months — does not inspire confidence. Nor does the outcome seem calculated to improve the behaviour of The Sun, which despite its protestations seems an unlikely champion against sex discrimination.
The performance of IPSO as a regulator was the subject of a recent review by Sir Bill Jeffrey, a former civil servant, who found that its performance in dealing with complaints was slow and cumbersome, and that it should be more transparent about its funding. Its reluctance to deal with any complaint by someone other than the person directly affected (so-called third-party complaints) has long been a source of public dissatisfaction with the regulator (or “complaints handler”, as many commentators now downgrade it), along with its perceived lack of independence from the very publications which fund it. See Transparency Project, Independent external review of IPSO
Rival, Leveson-compliant regulator IMPRESS issued a statement pointing out how useless IPSO was. They said:
“Complaints made regarding serious cases, centred on discrimination and abuse, must be investigated robustly and efficiently to ensure any negative impact on the public is limited.
This is another example of industry self-regulation simply not working.”
See also: Professor Paul Wragg, Inforrm’s Blog, IPSO the Glove Puppet Talks B******s About Standards: the Meghan Markle/Clarkson Complaint Analysed
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
CARRIAGE BY LAND — International carriage of goods by road — Jurisdiction: Huawei Technologies (UK) Ltd v DSV Solutions Ltd, 23 Jun 2023  EWHC 1505 (Comm);  WLR(D) 284, KBD
CORONER — Inquest — Verdict: R (Maguire) v Blackpool and Fylde Senior Coroner (R (Maguire) v United Response), 21 Jun 2023  UKSC 20;  3 WLR 103, SC(E)
EXECUTION — Equitable execution — Receiver: Denaxe Ltd v Cooper, 30 Jun 2023  EWCA Civ 752;  WLR(D) 285, CA
HOUSING — Private rented sector — Licensing of houses: Hussain (Nasim) v Waltham Forest London Borough Council, 26 Jun 2023  EWCA Civ 733;  WLR(D) 278, CA
IMMIGRATION — Asylum — Removal: R (AAA (Syria)) v Secretary of State for the Home Department, 29 Jun 2023  EWCA Civ 745;  WLR(D) 289, CA
IMMIGRATION — Leave to enter — Application: R (FMA) v Secretary of State for the Home Department, 27 Jun 2023  EWHC 1579 (Admin);  WLR(D) 281, KBD
INDUSTRIAL RELATIONS — Consultation and information — European Works Council: easyJet plc v easyJet European Works Council, 30 Jun 2023  EWCA Civ 756;  WLR(D) 288, CA
MARRIAGE — Divorce — Financial provision: Hasan v Ul-Hasan, decd (Unger v Ul-Hasan, decd), 28 Jun 2023  UKSC 22;  WLR(D) 282, SC(E)
PARTNERSHIP — Dissolution — Option to purchase: Morton v Morton, 20 Jun 2023  EWCA Civ 700;  WLR(D) 286, CA
REVENUE — Corporation tax — Loss relief: Civic Environmental Systems Ltd v Revenue and Customs Comrs (Lowe v Revenue and Customs Comrs), 26 Jun 2023  EWCA Civ 722;  WLR(D) 280, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
RPC Perspectives: Duties to third party investors in tax avoidance schemes following McClean: McClean v Thornhill KC  EWCA Civ 466;  STC 868, CA
UK Supreme Court Blog: Case Preview: McCulloch (Jennifer) v Forth Valley Health Board, Permission to appeal to Supreme Court given
RPC Perspectives: The CPR 3.10 cure: Court of Appeal prioritises substance over form in defective jurisdiction challenge: Pitalia v NHS England  EWCA Civ 657;  WLR(D) 248, CA
Electronic Immigration Network: Why UK court ruled Rwanda isn’t a safe place to send refugees — and what this means for the government’s immigration plans: R (AAA (Syria)) v Secretary of State for the Home Department,  EWCA Civ 745;  WLR(D) 289, CA
4–5 Gray’s Inn Square: A Date to Remember — Withdrawing Election Petitions: Afzal v Khan  EWHC 376 (KB), KBD
Inforrm’s Blog: High Court grants injunction to restrain publication of information concerning an arrest for sexual offences: WFZ v British Broadcasting Corporation  EWHC 1618 (KB), KBD
RPC Perspectives: Tribunal confirms taxpayer can benefit from HMRC dispensation for employee expenses: NWM Solutions Limited v The Commissioners for HMRC  UKFTT 364 (TC), FTT
Free Movement: Afghan judge wins judicial review of refusal of leave: R (JZ) v Secretary of State for the Home Department  UKAITUR JR2022LON001012, UT
Free Movement: Trafficking victims wrongly denied financial support in lockdown: R (PM) v Secretary of State for the Home Department  EWHC 1551 (Admin), KBD
Spectator: Why judges ruled against the Rwanda plan: R (AAA (Syria)) v Secretary of State for the Home Department  EWCA Civ 745;  WLR(D) 289, CA
Free Movement: Supreme Court finds exclusion of Palestinians from resettlement scheme not unlawful: R (Turani) v Secretary of State for the Home Department  UKSC 23, SC(E)
RPC Perspectives: HMRC’s attempt to strike out appeal fails: Phu Hung Ltd v Revenue & Customs Comrs  UKFTT 224 (TC), FTT
RPC Perspectives: When is a ‘tunnel’ not a tunnel, for capital allowances purposes? Revenue and Customs Comrs v SSE Generation Ltd  UKSC 17;  1 WLR 1777, SC
Inforrm’s Blog: The settlement in Carey v Independent News & Media and the status of Bloomberg v ZXC in Ireland: ZXC v Bloomberg LP  UKSC 5;  AC 1158, SC
Public Law for Everyone: Nothing To See Here? Allister in the Supreme Court: In re Allister  UKSC 5;  2 WLR 457, SC
Students — a date for your diaries
That’s it for now. Thanks for all your tweets and toots and linkedy-links. Go safely 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.