Weekly Notes: legal news from ICLR, 9 May 2022

Luridly chromatic night view of Westminster and Thames river at sunset, via Shutterstock.

Legislation

Four new justice bills received the Royal Assent on 28 April 2022 — at the close of what has been a somewhat torrid parliamentary session — but none of them have yet been published on the official site managed by the National Archives at www.legislation.gov.uk.

Judicial Review and Courts Act 2022

The Act makes a number of important changes to judicial review, including giving the courts powers to award suspended and prospective-only quashing orders, and preventing decisions of the Upper Tribunal being subject to judicial review. However, a statutory presumption that would have limited judges’ discretion over remedies for judicial review was not in the end pursued by the government.

The Act also makes a number of procedural changes across the court system, including allowing some first magistrates’ court appearances to become online administrative hearings, which journalists have complained will have a restrictive effect on open justice. See

The removal of Upper Tribunal decisions from the ambit of decisions susceptible to judiciary review was achieved by reversing the effect of the decision in R (Cart) v Upper Tribunal (Public Law Project intervening) [2011] UKSC 28; [2012] 1 AC 663.

Police, Crime, Sentencing and Courts Act 2022

Most of the discussion of the Act has focused on its provisions relating to public protests, giving the police more powers to curb noisy or disruptive protests of the sort we have seen recently organised by Extinction Rebellion and similar or related environmental groups.

Another provision is intended to deal with a perceived threat to public memorials and statutes which might be the target of criminal damage in the course of Black Lives Matter protests and the like. (The Attorney General has referred to the Court of Appeal the question whether the law — which ultimately failed to result in a conviction against the four people charged with criminal damage to the statue of Edward Colston in Bristol during one such demonstration — requires to be clarified: see Joshua Rozenberg, A Lawyer Writes, A defence to criminal damage?)

The Bill has been widely criticised, including by Parliament’s Joint Committee on Human Rights, who said in its various reports on the bill that the proposals were “oppressive and wrong”. It accused the government of trying to create “new powers in areas where the police already have access to powers and offences which are perfectly adequate”.

The Act also makes a number of changes to courts procedure and rules and reintroduces provisions enabling public scrutiny of remote hearings that were temporarily introduced under the Coronavirus Act 2020.

Nationality and Borders Act 2022

This statute contains now notorious provisions permitting the “off-shoring” of asylum claims to overseas facilities (in Rwanda, under controversial current proposals) and making it a criminal offence to knowingly arrive in the UK illegally.

The Lords have repeatedly amended the legislation and sent it back to the Commons, where MPs have repeatedly reversed their changes. Though in the end the Lords gave up and allowed the statute to be passed, the off-shoring arrangements may yet face challenges from what the Prime Minister called “lefty lawyers” (though the reversal of Cart’s case may make this harder.)

BBC: Asylum offshoring plan beats Parliament’s end-of-session deadline

Colin Yeo, Free Movement: Is it legal to outsource the UK’s refugee responsibilities to Rwanda?

Miranda Butler, Free Movement: UK-Rwanda refugee deal: first thoughts

Elections Act 2022

This introduces a number of reforms to election law, the need for some of which have been questioned. Perhaps most controversially, it provides for the introduction of photo ID for voters, which it is feared could see a significant number of people turned away from polling stations. It also gives the government more authority to control the previously independent Electoral Commission.

Best for Britain: Urgent need to remove Johnson regime as Lords fail to prevent him seizing control of elections watchdog

Other recent developments

Environmental law

Anglian Water has been fined £18,000 for failures at a pumping station near Peterborough that an investigation said showed up their “reactive attitude” to pollution.

According to an investigation by the Environment Agency, fish including roach, pike and eel were killed by toxic ammonia and a reduction in the amount of oxygen in the water after pumps that were meant to regulate the flow of effluent had stopped working, meaning raw sewage was released. District judge Ken Sheraton said Anglian Water should have given “a higher category of response” to a second sewage pump failing because the site at Yaxley was operating at a lower capacity with another pump already out of order.

Media law

On the EU Law Analysis blog, Professor Justin Borg-Barthet of the University of Aberdeen, discusses measures being developed by the the European Commission to deal with SLAPPs (Strategic Lawsuits Against Public Participation): see “Daphne’s Law”: The European Commission introduces an anti-SLAPP initiative.

The name refers to Daphne Caruana Galizia, the Maltese investigative journalist who, at the time of her murder on 16th October 2017, had been the target of no fewer than 48 defamation cases pending against her in Maltese and other courts. The scale of abusive litigation which Daphne endured prompted several NGOs to look more closely at the phenomenon of SLAPPs. Prof Borg-Barthet notes that “several US States, Canadian provinces and Australian states and territories have introduced anti-SLAPP statutes” but “No EU Member State has yet adopted similar laws”. Following initial reluctance, the EU Commission has now started to develop a proposal that has been named “Daphne’s law”.

There have also been proposals to develop anti-SLAPP measures in the UK, or at least England and Wales: Weekly Notes, 21 March 2022. See also:

Prisons

The Prison Service has released its latest statistical report on deaths, self-harm and assaults in prison custody in England and Wales. The latest batch of Safety in Custody Statistics, updated on 5 May 2022, cover deaths in prison custody up to March 2022 but assaults and self-harm only go up to December 2021. The report noted that:

  • The number of deaths had decreased from the previous 12-month period;
  • The rate of self-harm incidents had decreased slightly in male establishments from the previous 12-month period but increased in female establishments;
  • The number of individuals who self-harmed had decreased;
  • Both assaults generally and serious assaults (about 10% of the total) had decreased from the previous 12-month period;
  • But: assaults on staff were unchanged from the previous 12-month period

Legal Information

Last month the National Archives launched the “alpha” version of its new Find Case Law platform, which is intended to be the official source of judgments for the higher courts and tribunals of England and Wales.

ICLR has welcomed the launch and intends to use the platform as a source of new case judgments just as we already use The National Archives’ official site as our source for legislation. However, we will continue to link to BAILII (as we have done for the last decade), particularly for jurisdictions not covered by Find Case Law, such as Scotland, Northern Ireland and Ireland. We will also be expanding our coverage of European Court of Justice cases via the official Curia site. Further announcements to follow, so watch this space.

Courts

Magistrates will now be able to issue jail sentences of up to one year for a single offence, in a change to sentencing powers that seems to have been prompted solely by the need to ease the backlog of cases in the Crown Court. According to the announcement by the Ministry of Justice, the change “is expected to free up around 1,700 extra days of Crown Court time each year”.

Previously, magistrates could only issue a maximum sentence of six months’ imprisonment, although they could hear cases that might warrant a longer jail term and then send them to the Crown Court for sentencing by a judge. Appeals against sentences imposed by magistrates are also sent to the Crown Court. It has therefore been pointed out that even if magistrates can and do impose a heavier penalty, obviating the need to send the case to the Crown Court for sentencing, the case might still go to the Crown Court for an appeal against sentence. The overall effect on the backlog of other work awaiting the Crown Court’s attention may not therefore be very significant.

It’s also been pointed out that magistrates receive little enough training as it is, and should ideally receive more if they are going to exercise more drastic sentencing powers. The Ministry of Justice is currently hoping to recruit 4,000 new magistrates from across all walks of life, and is adopting a streamlined recruitment process to specifically target young people in a bid to boost diversity. But if we are recruiting younger magistrates and giving them greater powers, the need for more training is perhaps all the greater. (For more on this, see The Secret Magistrate on how recent developments are affecting the recruitment of magistrates)

Family law

The big debate about (or movement towards) transparency in the family courts has now got onto the area of financial remedies cases, where what is sought to be kept away from the public gaze is the confidentiality of the grown-ups’ financial matters, rather than the care needs of children and the conduct of the grownups who are supposed to look after them. A series of recent judgments from Mr Justice Mostyn, culminating with Xanthopolous v Rakshina [2022] EWFC 30, have explained his own conversion to the cause of transparency and prompted a range of commentary on the subject from others, most notably the former President of the Family Division, Sir James Munby, in a long article in the Financial Remedies Journal, Some Sunlight Seeps In. See also, on this debate:

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

ADOPTION — Arrangements for adoption — Placement order: Somerset County Council v NHS Somerset Clinical Commissioning Group, 13 Apr 2022 [2022] EWFC 31; [2022] WLR(D) 184, Fam Ct

CHARITY — Investments — Trustees’ power: Butler-Sloss v Charity Commission for England And Wales, 29 Apr 2022 [2022] EWHC 974 (Ch); [2022] WLR(D) 194, Ch D

CHILDREN — Orders with respect to children — Child arrangements order: K v L, 29 Apr 2022 [2022] EWHC 986 (Fam); [2022] WLR(D) 196, Fam D (Knowles J)

DATA PROTECTION — Personal data — Processing: Meta Platforms Ireland Ltd (formerly Facebook Ireland Ltd) v Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV, 28 Apr 2022 (Case C-319/20); EU:C:2022:322; [2022] WLR(D) 195, ECJ

IMMIGRATION — Deportation — Foreign criminal: Zulfiqar v Secretary of State for the Home Department, 14 Apr 2022 [2022] EWCA Civ 492; [2022] WLR(D) 179, CA

LANDLORD AND TENANT — Leasehold enfranchisement — Tenant’s right to acquire reversion: Cadogan Holdings Ltd v Alberti, 13 Apr 2022 [2022] EWCA Civ 499; [2022] WLR(D) 186, CA

LOCAL GOVERNMENT — Homeless persons — Suitability of accommodation: R (Elkundi) v Birmingham City Council (R (Ross) v Birmingham City Council, R (Ahmed) v Birmingham City Council, R (Al-Shameri) v Birmingham City Council), 04 May 2022 [2022] EWCA Civ 601; [2022] WLR(D) 198, CA

PLANNING — Development — Planning permission: R (James) v Dover District Council, 28 Apr 2022 [2022] EWHC 961 (Admin); [2022] WLR(D) 193, QBD

PRACTICE — Judgment — Reserved judgment: Jabbar v Aviva Insurance UK Ltd, 13 Apr 2022 [2022] EWHC 912 (QB); [2022] WLR(D) 177, QBD

PUBLIC HEALTH — Control of disease — Covid-19: R (Gardner) v Secretary of State for Health and Social Care, 27 Apr 2022 [2022] EWHC 967 (Admin); [2022] WLR(D) 188, QBD

PRACTICE — Case management orders — Relief from sanctions: Park v Hadi, 29 Apr 2022 [2022] EWCA Civ 581; [2022] WLR(D) 192, CA

REVENUE — Income tax — Employment: Revenue and Customs Coms v Atholl House Productions Ltd, 26 Apr 2022 [2022] EWCA Civ 501; [2022] WLR(D) 191, 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: R (Coughlan) v Minister for the Cabinet Office [2022] UKSC 11, SC(E)

Law & Religion UK: Returning a Christian convert to Pakistan? MAM v Switzerland (Application no. 29836/20); [2022] ECHR 317, ECtHR

RPC Perspectives: Interim injunctions and competing public interests (Attorney General v BBC): Attorney General v British Broadcasting Corporation [2022] EWHC 826 (QB); [2022] WLR(D) 167, QBD

Local Government Lawyer: Judges dismiss legal challenge over use of WhatsApp and other non-government communications systems for government business: R (All the Citizens) v Secretary of State for Digital, Culture, Media and Sport [2022] EWHC 960 (Admin), QBD

NIPC Law: FRAND — The InterDigital v Lenovo Litigation: Interdigital Technology Corpn v Lenovo Group Ltd [2022] EWHC 10 (Pat), Ch D

UK Human Rights Blog: Challenge to Government policy of discharging hospital patients to care homes at start of pandemic partly upheld: R (Gardner) v Secretary of State for Health and Social Care [2022] EWHC 967 (Admin); [2022] WLR(D) 188, QBD

Out-Law: EU court removes German barrier to preliminary patent injunctions: Phoenix Contact GmbH & Co. KG v HARTING Deutschland GmbH & Co. KG (Case C-44/21); EU:C:2022:309, ECJ

Free Movement: Useful case from Court of Justice of the European Union on Palestinian refugees: NB v Secretary of State for the Home Department (Case C-349/20); EU:C:2021:826; EU:C:2022:151; [2022] WLR(D) 123, ECJ

Transparency Project: The cost of transparency: Xanthopolous v Rakshina [2022] EWFC 30, Fam Ct

Panopticon: Bounty — A Taste of Data Protection Paradise? Underwood v Bounty UK Ltd [2022] EWHC 888 (QB), QBD

Global Freedom of Expression (Columbia University): OOO Memo v. Russia: expands expression: OOO Memo v Russia (Application no. 2840/10); [2022] ECHR 229, ECtHR

ICLR news

ICLR is recruiting. We’re looking for law reporter(s). Deadline for applications in this round is 20 May 2022.

Find out more: ICLR careers

And finally….

Tweet of the week

Barrister Colm Nugent on not losing your head over personal injuries claims

That’s it for this week. Thanks for reading, and thanks for all your tweets and links.

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.