Weekly Notes: legal news from ICLR, 7 October 2019

Welcome back to a new legal year with the first of this term’s roundups of legal news and commentary. We begin by reviewing what’s been happening in the legal world over the long summer vacation, including some significant developments in constitutional law.

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UK Supreme Court during Miller 2/Cherry hearing

Constitutional law

After mixed results in lower hearings, the combined English and Scottish appeals of R (Miller) v Prime Minister (Lord Advocate intervening) and Cherry v Advocate General for Scotland (Lord Advocate intervening) resulted in a decision of the Supreme Court [2019] UKSC 41; [2019] 3 WLR 589; [2019] WLR(D) 524 that was both unanimous and unambiguous. In a short, clear judgment, the court explained why the case was justiciable (suitable to be decided by the court) and why there were grounds for declaring in these cases that the purported prorogation of Parliament by the Prime Minister Boris Johnson (by way of advice given to the Queen, who is bound by convention to act accordingly) “from a date between 9th and 12th September until 14th October” was unlawful and of no effect. It was unlawful, the court said, because, it had the effect of “frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive”.

The consequence was that Parliament had never been effectively prorogued, and was free to continue sitting in the same unsuspended session; that important bills which might otherwise have been lost (including long-awaited reforms dealing with divorce reform and domestic abuse) can continue their passage through Parliament; and the MPs whose job it was to scrutinise the acts and omissions of the executive branch of government were able to continue doing so, whether in the chamber or in committee.

The case has been the subject of a good deal of both (a) learned commentary, and (b) less well informed or learned commentary. We have collected quite a lot of category (a) on the case index card on ICLR.3 and will add to it when we find more. The case has prompted wider discussions about the role of the Supreme Court and its justices. There has been a lot of attention on the diamond-encrusted spider-shaped brooch worn by the President of the Court, Lady Hale, some of it well-meant, but misguided, but some of it suspicious or even superstitious, as to its symbolism. The corollary of this unwholesome focus on judicial personalities is that there have been suggestions from some government parties, no doubt displeased by the result, that in future the appointment of the justices should be subject to some sort of political scrutiny, as in the US Supreme Court. There have been suggestions, too, that the uncertainty as to the mechanics of the constitution which gave rise to the need for litigation in this case demonstrate the need to draw up a written constitution. However, the difficulty of achieving sufficiently wide agreement as to the terms of any such document and passing the necessary legislation seems insurmountable, given the divisions and failures to compromise over the Brexit negotiations in the last three years.

Parliament resumed sitting the following day, and was tempestuous in its debates, with some regrettable exchanges between those on the government benches and their opponents. It may have been barking, but at least it was sitting. It is the parliament that does not bark in the night (or day) that you need to be worried about.

The government claims to have put forward a deal for serious consideration by the European Commission. Responses have been sceptical. And any deal will need the approval not just of the European negotiators but also of our own Parliament. It seems a lot to expect.

For further commentary, see David Allen Green’s Law and Policy Blog, What is a constitution and what is constitutional commentary? and, on the effect of the Benn Act or what No 10 prefers to call the “Surrender Act” (requiring the Prime Minister to seek another extension of the Article 50 notice period should he fail to get approval for his revised deal), The UK appears boxed in on the Brexit extension.

See also, Obiter J, In brief — proposal for new Ireland protocol and Prorogation planned (with updates) and earlier posts on the same blog about the Supreme Court judgment.

For more about the Benn Act, or the EU Withdrawal (No 2) Act 2019, the Institute for Government has an explainer.

Crime

The full report of the review chaired by Sir Richard Henriques into the conduct by the Metropolitan Police of investigations into historic sex abuse under Operation Midland has now been published, with a statement from the Met’s Deputy Commissioner Sir Stephen House:

“The Met is determined to learn lessons from Sir Richard’s review to improve our response to similar situations in the future, and we published his recommendations and the key failings that he had identified in relation to Operation Midland in 2016. The MPS and the officers involved cooperated fully with Sir Richard.”

The report was completed in October 2016. Since then, Carl Beech, who under the guise of “Nick” made the false accusations of historic sexual abuse, mayhem and even murder against a number of prominent figures in public life, which were the subject of the Met’s investigation, has been 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, as we reported earlier: see Weekly Notes, 29 July 2019.

You can read the full report here.

There is a reaction to the report’s publication from Doughty Street Chambers, who acted for Harvey Proctor, one of the victims of the false allegations.

Courts

An important report by Dr Natalie Byrom of the Legal Education Foundation has recommended a 29-point plan for tackling ‘digital exclusion’, and ensuring the government’s £1bn court reform programme delivers access to justice for all court users. The report, entitled Digital Justice: HMCTS data strategy and delivering access to justice, was based on research conducted by Dr Byrom on a three-month secondment to HM Courts & Tribunals Service (HMCTS) as an independent expert to the courts reform programme. Many of the recommendations relate to the collection of data to inform the future development of the courts, including digital and online justice, to make sure it still meets the “irreducible minimum standards” identified by stakeholders, of

(i) access to the formal legal system,

(ii) access to an effective hearing,

(iii) access to a decision in accordance with substantive law,

(iv) access to remedy.

Among the areas of priority need noted in the executive summary (and of relevance to us) were:

“Three further areas of priority need were identified by stakeholders: (i) reforming the system for providing free, public access to judgments, (ii) improving access to court listings and (iii) providing free access to certain types of case level data, including transcripts and statements of case (Chapter 4, sections H1-H3). In relation to the need to reform the system for making judgments available to the public, stakeholders’ concerns related to the coverage of existing free to access databases, the comprehensibility of content to those without legal training and the format in which judgments are published.”

One of the recommendations is that

“HMCTS should work with the judiciary and colleagues in the Ministry of Justice to commission an independent report which reviews the current arrangements for disseminating judgments to the public and maps the information flows from courts to publication. On the basis of this report, HMCTS and the MoJ should engage with key stakeholders to develop a publication solution that delivers free and comprehensive access to judgments in a structured machine-readable format.”

In relation to the question of providing free access to judgments, another recent development has been the conflict of understanding between the Ministry of Justice and BAILII over the latter’s status and willingness to act as a conduit for the distribution of judgments under open government licence. See our post, BAILII and the re-use of judgments as public legal information.

What we probably need now is a Blueprint for Digital Open Justice, which will not only make judgments but also case papers and skeleton arguments available for research and reporting purposes, much as they already are in some other jurisdictions, and in the Supreme Court of our own. And as we’ve said before, the online court needs to be an open court.

Last month, the National Audit Office published its progress update on the HMCTS Transforming court and tribunals project. This report follows up on how HMCTS has completed the second phase of its reform programme, which ended in January 2019. An earlier report by the NAO was highly critical of the project, identifying a “significant risk that the full reform programme would prove to be undeliverable in the time available”. Since then the timescale has been extended, and the NAO notes that “HMCTS has acted on concerns raised in our previous report” and that the extended timeframe and some reduction in the scope of the projects has made the risk of undeliverability smaller but the expected savings have also been reduced.

The NAO also notes that “HMCTS needs to better understand the impact of its reforms, including how they are affecting users of the justice system.” This is exactly what Dr Byrom’s report is all about. Hopefully, HMCTS will adopt her recommendations.

HMCTS published a response to the NAO update, broadly welcoming it and highlighting achievements so far.

Media law

Of course it’s not called a writ now but a claim form, which does not alliterate so well. The story is that Prince Harry and Meghan Markle, aka the Duke and Duchess of Sussex, have launched media claims: Prince Harry, has brought phone hacking claims against the Mirror and the Sun, and Meghan Markle has brought an action for misuse of private information, breach of copyright and data protection against the Mail on Sunday. (See Inforrm’s blog for more details.)

In relation to the duchess’s copyright claim, the IP Kat blog asks: Have Associated Newspapers made a Royal error publishing Megan Markle’s private letter?

Whether you are interested in the Royals or not, this case is a juicy one simply on account of the number of potential claims — copyright infringement, breach of moral rights, defamation, Misuse of Private Information, and breach of data protection rights.

The blog post goes on to consider the various defences that the newspaper might put up, and their chances of success.

There’s also a post on Inforrm’s blog by Hayleigh Bosher, lecturer in Intellectual Property Law, Brunel University London: Meghan Markle letter: what the law says about the press, privacy and the public’s right to know

The phonehacking claims are less novel, in the sense that there have been such claims, mainly by celebrities, for years ever since the phonehacking scandal broke, and they appear to be being dealt with in batches, with newspapers having to set aside ever more cash to fund the almost inevitable awards.

Brian Cathcart, Professor of Journalism at Kingston University, argues that Prince Harry and Meghan Markle Standing Up to the British Media Protects Us All from Press Abuse (also via Inforrm’s blog)

Legal professions

The Association of Women Barristers has published In the age of ‘us too?’: moving towards a zero-tolerance attitude to harassment and bullying at the bar, its report on its roundtable on harassment and bullying and the recommendations that emerged. The report is written by Lynne Townley and HHJ Kaly Kaul QC.

Legal Futures reported recently that the Bar Standards Board had delayed the introduction of written pupillage agreements, which had been expected to reduce the risk of pupil barristers being subjected to “inappropriate behaviour”. But in a statement, the BSB said:

“We have now decided that, if these proposals are adopted, more time would be needed for implementation. We will announce the outcome of the engagement programme and any dates by which implementation would be required in due course.”

Another report in Legal Futures noted the launch by the Bar Council of an “anonymous reporting tool” for barristers experiencing bullying and harassment by their colleagues and judges.

“Talk to Spot will allow barristers to talk through and record contemporaneously inappropriate moments at work. They can then choose to either save the report for their own reference, or print the report and send it to their chambers, their employer, or other bodies. They can also submit the report to the Bar Council.”

Commentary catchup

While we’ve not been publishing Weekly Notes over the long vacation, the ICLR blog has not been idle. We’ve published a number of reviews and case comments, which you can find listed here.

The Transparency Project has also been busy over the summer, particularly with the Legal Bloggers pilot, in which lawyers in practice or working for a charity or academic institution cover family case heard in private on the same terms and subject to the same restrictions as accredited media representatives. For more on this see Bar Talk, Guest blog: Legal blogging pilot — how you can get involved

One of the prominent hearings being followed is the case involving Tafida Raqeeb, judgment in which was given last week: Raqeeb v Barts NHS Foundation Trust [2019] EWHC 2531 (Admin).

Thanks to that and its other activities, the Transparency Project has once again been shortlisted for the Family Law Awards as Family Law Commentator of the Year 2019. You can vote for it here.

Tweet of the week

While there has been some criticism of the fangirling of Lady Hale and her now famous spider brooch (see, for example, Barbara Rich’s piece, Lady Justice and the cult of the “girly swot”), this inspiring girl-oriented toy is hard to disapprove of too fiercely, as I think the comments that follow Mary Aspinall-Miles’s retweet indicate.

Even the gavel can be forgiven on the grounds that the toy is American, and some judges over there use such things.

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.

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.

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