Weekly Notes: legal news from ICLR, 8 July 2024
This week’s roundabout welcomes the clean sweep that a new broom at No 10 may bring. High hopes for some new talent in the top posts. Plus prisons, immigration, family law, and media regulation; and not forgetting recent case law and commentary.
Politics
Election: outcome, downfall
In the General Election held on 4 July 2024, the Conservative government lost power, after 14 years in office, along with most of its seats in the House of Commons (from 372 down to 121), while the Labour party won a substantial majority (412 seats) and form the new government. The Liberal Democrat party also made substantial gains (from 8 seats to 72), Reform UK (reformed from the Brexit party) won 5 seats and the Green party won 4. We summarised their respective proposals for law and justice in our 2024 Election Manifesto Special two weeks ago.
A number of nationalist parties and independent candidates also won seats, and many others, sensible and/or silly, did not. The number of seats generally reflected the distribution of votes rather than their number, a consequence of the stable but unrepresentative first past the post system. A full list of results is provided by the BBC.
The upshot is that Sir Keir Starmer KC is now Prime Minister, and over the weekend he appointed his new cabinet and gave a press conference announcing his major policy decisions. He believes he has “a mandate to do politics differently”. That includes the principle “country first, party second”. There will be Mission Delivery Boards, chaired by Starmer himself, to drive through the change that he believes his government has been entrusted to deliver. He ended his presser with an assurance that his approach to policy would be “sensible and radical at the same time”, occupying a centre ground that was a “place of solutions, not ideology”. Whatever all that means. Time will show.
Writing in The Sunday Times (Slow and steady won Starmer his throne. Now he needs a vision), Jason Cowley highlights the sheer scale of Starmer’s achievement:
“Consider the scale of Labour’s victory. In one parliamentary term it has gone from its worst general election defeat since 1935 to a great victory and a Commons majority of 172. The Conservatives, the so-called natural party of government, have been routed, punished by voters for years of dysfunction and misrule. The tortuous process of Brexit and the repeated broken promises on levelling up, immigration and much else have broken the party. It seemed fitting that Liz Truss, removed by her own MPs as prime minister after 49 days in 2022, lost her seat.”
Appointments
One of Starmer’s first acts was to appoint Shabana Mahmood MP, a barrister who has been MP for Birmingham Ladywood since 2010, as Lord Chancellor and Secretary of state for justice. She will be head of the Ministry of Justice, which runs the courts and judiciary, prisons and probation services, and legal aid, as well as overseeing the legal professions.
Between 2010 and 2024 there were 11 different holders of this office, one of them twice. All of them were Conservatives. None of them now remains an MP. One has gone up to the House of Lords but the rest have either resigned from politics or been voted out of their seats.
Kenneth Clarke KC (2010 to 2012) (now Baron Clarke of Nottingham) and David Lidington (2017 to 2018) resigned before, and David Gauke (2018 to 2019) lost his seat in the 2019 election; Chris Grayling (2012 to 2015), Michael Gove (2015 to 2016), Dominic Raab (2021 to 2022) and (2022 to 2023) and Brandon Lewis (2022 to 2022) have all stood down this time; and Liz Truss (2016 to 2017), Robert Buckland KC (2019 to 2021) and Alex Chalk KC (2023 to 2024) have all lost their seats in the election.
The churn in appointments (each serving on average barely two years) may be typical of modern cabinet government, with its anxious reshuffles and political favour trading, but it ill behoves the ancient role of Lord Chancellor. The combined role was created during the last Labour administration, in a bold surge of constitutional rearrangement, but has not worked well. We will leave it to others to argue the question of whether it serves or swerves the separation of powers, but in terms of providing a stable governance of the justice system it appears not to be working that well. Quod erat demonstrandum. Or to mock the royal motto on the court of arms in court, “Le droit? Mon dieu!”
The roles of the Lord Chancellor and the Law Officers (HL Paper 118) were considered in a recent inquiry by the Lords Select Committee on the Constitution.
See also, Institute for Government: Should the role of the Lord Chancellor be reformed?
Starmer has also appointed Richard Hermer KC, a Deputy High Court Judge and a member of Matrix Chambers with a successful public and private law practice, as Attorney General. He will be given parliamentary status by way of a life peerage to enable him sit in the House of Lords.
At the time of writing, no one had yet been appointed Solicitor General, but the previous incumbent, Robert Courts KC, MP for Witney and West Oxfordshire, lost that seat in the election.
Joshua Rozenberg, on A Lawyer Writes, Judgment reserved discusses those appointments with a degree of “wait and see” caution.
Angus McCullough KC, having written extensively about Closed Material Procedures (CMP) and the system’s current failings on the UK Human Rights Blog, is more immediately enthusiastic: Secret Justice: a welcome to the new Attorney General, who has direct and extensive experience of these procedures and their long-standing unaddressed defects
Other new appointments include two relating to housing, as welcomed by Giles Peaker on the Nearly Legal blog: Angela Rayner MP as the Secretary of State for Levelling Up, Housing and Communities, and Matthew Pennycook MP as the Minister of State for Housing within that department.
What is to be done?
Probably not much, initially, because of budgetary constraints. (The new Chancellor of the Exchequer, Rachel Reeves MP, an economist, has ruled out increases in income tax, national insurance contributions, VAT (other than on private school fees) and the main rate of corporation tax, and has vowed to borrow wisely and therefore probably quite sparingly.) Even so, the Bar Council is calling for a substantial investment in the justice system:
“It is no secret that the new Government faces a genuine crisis in the justice system, the result of years of underinvestment. It is vital that measures and funding to ease prison overcrowding and tackle the court backlogs are treated as an immediate priority for action by the new Lord Chancellor.
Welcoming the appointment of Mahmood as Lord Chancellor, its press release continued:
“We will continue to make the strong case for spending on early legal advice and legal aid, for our courts to be seen as a vital public service, and for sustainable long-term investment in justice to rebuild public trust and confidence.”
The Law Society also welcomed the change of government, while reiterating the need for investment in a justice system “that has faced decades of underinvestment”. Nick Emmerson, president of the Law Society, said:
“The new government must prioritise making our justice system a source of national pride and harness the economic power of legal services that contribute £60 billion annually to the UK economy and is one of our most valuable exports.”
Prisons
Re-souling rehabilitation
The appointment of shoe repair and locksmith magnate James Timpson as a junior minister responsible for prisons and probation has been welcomed by charities and reformers. Timpson himself is well known for supporting the rehabilitation of ex-convicts and his company the Timpson Group has hired more than 1,500 prisoners since 2008: as well as running training academies in prisons around the country, Timpson also hire prisoners on day release to work in their high street stores. Timpson has chaired both the Employers’ Forum Reducing Re-offending and the Prison Reform Trust. He told Channel 4 earlier this year that he believed Britain was “addicted to punishment” and that he believed only a third of the current prison population “should definitely be there”. To serve as a minister, Timpson will need to be elevated to the House of Lords.
The Prison Governors’ Association recently warned that jails in England and Wales were days away from running out of cells. The latest prison statistics (as at 5 July) show the current population as 87,453 and the capacity as 88,864 — so there are fewer than 1500 spare places, even accepting the routine overcrowding of ancient correctional facilities.
Starmer has said his government will build more places, but that hardly seems to chime with the more progressive regime recommended by his newly appointed prisons minister. However, he will not stop the last government’s early release scheme which was intended to address the shortage. But looking ahead, he said he would like to pull people out of the imprisonment “escalator” and try, with projects such as youth hubs, to stop people getting into crime in the first place.
Prison Governors’ Association: Open letter to UK political party leaders (25 June 2024)
Ministry of Justice: Retailer Timpson employ ex-offenders
Guardian: Prison reform experts hail role for shoe repair CEO James Timpson
BBC: Why Starmer hired key-cutting boss as prisons minister
David Allen Green, Law and Policy blog: The task before James Timpson: the significance of this welcome appointment — and two of the obstacles that he needs to overcome
Immigration
Rwanda scheme closed
One of Starmer’s first acts as Prime Minister was to announce, at that press conference on his first full day in office, the cancellation of the previous government’s ill-fated and widely condemned scheme for deporting illegal immigrants to Rwanda for assessment and processing of their claims for asylum. Apart from any other objections, he told journalists the scheme has “never been a deterrent — almost the opposite” — as it would only deport less than 1% of small boat arrivals.
Instead, a new Border Security Command is being launched to tackle the small boats crisis. The newly appointed Home Secretrary, Yvette Cooper MP, is shortly to begin the recruitment of a commander to lead it. Recruitment of specialist border investigators will begin as soon as possible. A new Border Security Bill will be announced in the first King’s Speech, with powers to tackle organised crime and smuggling.
BBC: Last two migrants bound for Rwanda to be bailed, home secretary says
Windrush scheme
Free Movement have a handy Briefing: guide to applications to the Windrush Compensation Scheme, which might help the new junior ministers at the Home Office. It might help them to know that one of the biggest barriers to people successfully claiming is the daunting process of applying to the Home Office, whose actions caused the problem in the first place, and is therefore viewed with suspicion and fear. If they can reassure people that the hostile envirnment has truly been swept away, perhaps it will help?
Family law
Marriage and cohabitation
No announcements so far from the new government about family law, but then the Labour manifesto did not really say anything about it. However, the Law & Religion UK blog points out that there are outstanding issues relating to marriage — notably the absence of recognition for humanist weddings in England and Wales — and cohabitation, viz the lack of rights of cohabitees on breakup of their relationship. The Labour manifesto did include a half-sentence about strengthening “the rights and protections available to women in cohabiting couples”, but that was all. The Law Commission proposed changes as long ago as 2007, but these were never implemented and it would make sense to review the situation before proceeding with legislation.
Synod supports same sex blessings
News just in from the General Synod of the Church of England, via the Law & Religion UK blog, that
“The Church of England’s General Synod has given agreement in principle to taking forward outline proposals for the wider use of prayers asking for God’s blessing for same-sex couples in church services”.
The package of proposals includes possible arrangements for the use of the Prayers of Love and Faith — a selection of readings and prayers of thanksgiving, dedication and asking for God’s blessing for same-sex couples — in special, or standalone, services alongside delegated episcopal ministry and work to provide a timetable towards a decision on clergy in same-sex civil marriages. The Archbishop of York, Stephen Cottrell, acknowledged there were deep disagreements within the Church on questions of sexuality and that the proposals would not fully satisfy any group — but represented what he called an “Anglican way forward”.
Guidance on judgments
The President of the Family Division, Sir Andrew McFarlane, issued Practice Guidance on the Publication of Judgments on 19 June 2024, although it was only published via the Judiciary website on 5 July, after the election.
The guidance was produced by the Transparency Implementation Group subgroup on Anonymisation and Publication, chaired by Her Honour Judge Reardon, made up of judges, legal advisers, practitioners, CAFCASS, ADCS and young people from the FJYPB. Its aim is to provide practical advice to judges, legal advisors and magistrates “so that all may be supported in publishing judgments on a more regular basis” so as to “shed more light on the ordinary, day-to-day, work of the Family Court, but to do so without compromising the confidentiality of the children and family members in any individual case”. It replaces previous guidance issued on judgment publication in 2014 (by McFarlane’s predecessor Sir James Munby: Transparency in the Family Courts, Publication of Judgments, Practice Guidance [2014] 1 WLR 230) and earlier guidance from McFarlane himself in 2018 (Practice Guidance: Anonymisation and Avoidance of the Identification of Children and the Treatment of the Sexual Abuse of Children in Judgments Intended for the Public Arena.)
The guidance, which comes in the form of a downloadable Word document (not, oddly enough, a PDF), covers the decision over whether to publish in the first place; and if so, on preparing and formatting a judgment for publication; obtaining a neutral citation number (NCN); uploading to The National Archives (TNA) for publication and distribution; and what to do if a published judgment needs amending. (This is not a rare occurrence, by the way: as a publisher of judgments distributed via TNA, ICLR gets almost daily emails about removing or updating judgments for reasons ranging from a minor typo (apparently) to an accidental failure to comply with reporting restrictions.)
There are several linked references to material only available to members of the judiciary (not publishers or reporters, therefore) via the judicial intranet. In that sense, this is really a hybrid document, offering internal guidance to the judiciary, but with a fairly substantial window open to legal professionals, press and legal bloggers, and public observers to understand how they go about things.
Legal blogging
Other family law news and case law has been collected in the latest Family Court Reporting Watch Roundup from the Transparency Project, which has also published a post about Legal blogging from the magistrates — ‘live with’ and ‘spend time with’ orders.
Media and Communications
Regulation and Reform
There were fears that this election might be dominated not just by social media but by fake news and deepfake disinformation. But that doesn’t seem to have materialised, according to the BBC’s Disinformation and social media correspondent, Marianna Spring, who reported that This wasn’t the social media election everyone expected. That’s not to say there weren’t some deepfake reports doing the rounds, but it doesn’t appear to have been a major problem. However, she concludes “it was an election in which the same old questions about social media regulation went unanswered”.
The Guardian reported that Nigel Farage outperforms all other UK parties and candidates on TikTok and The Independent reported that Farage amasses 39 billion video views as Reform dominates social media election battle, referring mainly to Facebook.
Meanwhile Hacked Off published an article suggesting that Election delivers pro-Leveson majority, as press campaign fails to land a punch, saying “Today’s election result shows the electorate have delivered a decisive majority in favour of press reform”, because “The Labour, Liberal Democrat, SNP, PC and Green Parties all have a history of supporting the Leveson recommendations and, between them, they have been handed an overwhelming majority”.
But that overlooks the fact that only Labour are actually in government, and the Labour manifesto did not appear to say anything about press regulation or reform. Even if the mainstream media were sometimes biased or differently factchecked in their assertions about the parties’ intentions during the election, the overall effect may have been limited in view of the massive preponderance of social media influence.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4
CONFLICT OF LAWS — Tort — Applicable law: Nicholls v Mapfre Espana Compania de Seguros y Reaseguros SA (Woodward v Mapfre Espana Compania de Seguros y Reaseguros SA, Sedgewick v Mapfre Espana Compania de Seguros y Reaseguros SA), 27 Jun 2024 [2024] EWCA Civ 718; [2024] WLR(D) 312, CA
CONTRACT — Terms — Breach: King Crude Carriers SA v Ridgebury November LLC, 27 Jun 2024 [2024] EWCA Civ 719; [2024] WLR(D) 298, CA
CRIME — Proceeds of crime — Criminal property: R (World Uyghur Congress) v Secretary of State for the Home Department (R (World Uyghur Congress) v National Crime Agency), 27 Jun 2024 [2024] EWCA Civ 715; [2024] WLR(D) 292, CA
DEFAMATION — Privilege — Qualified: Harcombe v Associated Newspapers Ltd, 25 Jun 2024 [2024] EWHC 1523 (KB); [2024] WLR(D) 295; Press summary, KBD
DISCRIMINATION — Part-time worker — Pension: Clayson v Ministry of Justice, 24 Jun 2024 [2024] EAT 99; [2024] WLR(D) 311, EAT
EMPLOYMENT — Wages — National minimum wage: Taylors Service Ltd v Revenue and Customs Comrs, 26 Jun 2024 [2024] EAT 102; [2024] WLR(D) 303, EAT
IMMIGRATION — Clandestine entrant — Carrier’s liability: KLG Trucking Srl v Secretary of State for the Home Department, 02 Jul 2024 [2024] EWCA Civ 737; [2024] WLR(D) 304, CA
PLANNING — Development — Ministerial policy: R (Rights: Community: Action Ltd) v Secretary of State for Levelling Up, Housing and Communities, 02 Jul 2024 [2024] EWHC 1693 (Admin); [2024] WLR(D) 306, KBD
PLANNING — Planning permission — Conditions: C G Fry and Son Ltd v Secretary of State for Levelling Up, Housing and Communities, 28 Jun 2024 [2024] EWCA Civ 730; [2024] WLR(D) 300, CA
PUBLIC PROCUREMENT — Challenge to contract award — Time limit for bringing challenge: Brookhouse Group Ltd v Lancashire County Council, 28 Jun 2024 [2024] EWCA Civ 717; [2024] WLR(D) 308, CA
REVENUE — Corporation tax — Capital allowances: Altrad Services Ltd v Revenue and Customs Comrs (Robert Wiseman and Sons Ltd v Revenue and Customs Comrs), 28 Jun 2024 [2024] EWCA Civ 720; [2024] WLR(D) 299, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
A Lawyer Writes: Why Letby lost: R v Letby (Lucy) [2024] EWCA Crim 748, CA
A Lawyer Writes: No one is above the law: UK Supreme Court dismisses ‘hopeless’ asylum challenge: R (LA (Albania)) v Upper Tribunal, PTA decision, SC(E)
4–5 Grays Inn Square: Climate change must be counted: R (Finch) v Surrey County Council [2024] UKSC 20; [2024] WLR(D) 275, SC(E)
Wilberforce Chambers: Insolvency vs Arbitration: Sian Participation Corp v Halimeda International Ltd (Virgin Islands) [2024] UKPC 16, PC
Tanfield Chambers: Landlord’s works are not within the terms of its repairing covenant where they increase the maintenance burden on the tenant: Triplark Ltd v Whale & Ors [2024] EWHC 1440 (Ch), Ch D
Local Government Lawyer: High Court finds LA can consent to deprivation of child’s liberty without DoLs order: In re J: Local Authority consent to Deprivation of Liberty [2024] EWHC 1690 (Fam), Fam D
Nearly Legal: Section 188(1) accommodation, suitability and mandatory orders: R (AO) v LB of Haringey (unreported), KBD
Free Movement: Court of Appeal reduces penalty applied to owner of lorry carrying clandestine entrants: KLG Trucking Srl v Secretary of State for the Home Department [2024] EWCA Civ 737; [2024] WLR(D) 304, CA
Free Movement: High Court finds trafficking decision unlawful for failure to consider all available evidence: R (SM) v Secretary of State for the Home Department [2024] EWHC 1683 (Admin), KBD
Global Freedom of Expression: Tallon v. DPP: expands expression: Tallon v Director of Public Prosecutions [2023] IECA 125, CA (I)
Out-Law: Upper Tribunal provides clarity on interpretation of double tax treaty provisions: Burlington Loan Management DAC v Revenue and Customs Comrs [2024] UKUT 152 (TCC); [2024] STC 1078, UT
Out-Law: High Court decisions show developing court approach to dishonest assistance and unjust enrichment claims: Larsson v Revolut Ltd [2024] EWHC 1287 (Ch), Ch D
Out-Law: Breach of contract case fails after Irish court rules general terms of contract didn’t apply: Biomass Heating Solutions Ltd v Geurts International BV [2024] IEHC 334, HC (I)
Local Government Lawyer: Court of Appeal finds Family Division judge failed to adhere to “fundamental principle” of justice being seen to be done: The Father v Worcestershire County Council [2024] EWCA Civ 694, CA
UK Constitutional Law Association: Rolling Judicial Reviews: A New Era of Court Monitoring in Complex Cases? R (ECPAT) v Kent County Council [2024] EWHC 1353 (Admin), KBD
Law & Religion UK: Navigating belief, discrimination, employment and professional ethics: R (Ngole) v University of Sheffield [2019] EWCA Civ 1127, CA
Local Government Lawyer: Appropriate actions: R (Bradbury) v Awdurdod Parc Cenedlaethol Bannau Brycheiniog (Brecon Beacons National Park Authority) [2024] EWHC 1242 (Admin), KBD
And finally…
Tweet of the week
On why punctuation (eg in legislation) matters:
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.
