Weekly Notes: legal news from ICLR — 17 July 2017

Posted on 17th Jul 2017 in Weekly Notes

Powers old, new, borrowed and blue are contained in the Lesser (or Not Quite So Great) Repeal Bill announced this week as our legislative rocket ejector seat for Brexit. This and other news in a roundup that struggles in vain to cope with all the legal stuff going on right now. Sigh.

 

European Union

Brexit Bill

Or should one say bills? The expression “Brexit Bill” may be thought to refer to two rather different things. One is the bill that the UK will have to pay, if and when it eventually separates from the other 27 contracting states of the European Union. The other is the piece of legislation needed to achieve that separation. Both have been in the news over the last week.

The first kind of bill is the one for whose payment Foreign Secretary Boris Johnson said the remaining EU states could “go whistle”, if they had the impudence to present it. He — or at any rate the government — seems to have changed tune rapidly: the expression for this is volte face. A better one might be volte farce.

The Financial Times reported that

Britain has not submitted a position paper on financial issues and Boris Johnson, the foreign secretary, said this week that the EU can “go whistle” if it insists on demanding “extortionate” sums. In reply Michel Barnier, the EU’s chief negotiator, said: “I’m not hearing any whistling, just the clock ticking.”

But since then, says the FT:

In a written statement to parliament touching on a “financial settlement”, the British government recognised “that the UK has obligations to the EU . . . that will survive the UK’s withdrawal — and that these need to be resolved”.

These could amount to some £30bn in a backlog of unpaid commitments, reckons the FT.

As to the legislative bill, it is no longer named the Great Repeal Bill as it was during those heady early days of Brexit when we thought (some of us thought) the British Empire was about to reconstitute itself across the globe. Instead it has the rather more practical and prosaic title of European Union (Withdrawal) Bill 2017–19. (No doubt it will be abbreviated to EUWB, which sounds like a rueful or regretful murmur.) You can read it on the Parliament website. According to the explanatory notes:

1. The European Union (Withdrawal) Bill repeals the European Communities Act 1972 (ECA) on the day the United Kingdom leaves the European Union.

2. The Bill ends the supremacy of European Union (EU) law in UK law and converts EU law as it stands at the moment of exit into domestic law. It also creates temporary powers to make secondary legislation to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left, so that the domestic legal system continues to function correctly outside the EU. The Bill also enables domestic law to reflect the content of a withdrawal agreement under Article 50 of the Treaty on European Union once the UK leaves the EU.

The conjuring trick which it aims to perform is a bit like the one where someone pulls, in one rapid tug, a fully laden table cloth, leaving all the plates, napkins, cutlery, glassware and flower arrangements in exactly the same place, but resting directly on the solid old oak table of domestic law instead of the gold-starred blue tablecloth of EU law. One-two-three… ta-dah!

(No, you did NOT hear a horrible tinkle-clatter-crashing sound.)

Tribute should be paid to the parliamentary drafters, who have been given a confoundedly tricky brief and appear to have made a very decent go of it. As they must have known, the text will be subject to a blizzard of amendments in the parliamentary debates to come. For example, the Liberal Democrats have already warned that they intend to festoon the bill with amendments “like a Christmas tree”. (And if the DUP don’t, we’ll know it’s because they’ve been bought off as part of their controversial confidence and supply arrangement with the minority government.) Its first scrutiny, though, has come from legal commentators, including the following:

A lot of attention has been drawn to the so-called “Henry VIII powers” in clause 7 of the bill, ie powers enabling ministers to issue secondary legislation having the effect of amending primary legislation without parliamentary scrutiny: but, alarming as this sounds, it’s worth pointing out that these powers are subject to another piece of statutory jargon, namely a “sunset clause”. By clause 7(7) “ No regulations may be made under this section after the end of the period of two years beginning with exit day.”

As David Allen Green points out “the legislative equivalent of a state of emergency is time-bound. But given the immensity of the task ahead, will two years be enough?”

Steve Peers says ” To give effect to the withdrawal agreement, the government could even amend the EU Withdrawal Act itself.”

Perhaps we should look out for a sneaky statutory instrument entitled, for example, The European Union (Withdrawal) Act 2018 (Extension of Time for Exercise of Ministerial Powers) Order 2020 (SI 2020/666). [Pace Prof Peers, we had rather assumed that a Henry VIII power cannot be used to amend the very instrument under which it was conferred, but hey-ho, there’s a first for everything.]

EU case law

Clause 6 of the EUWB deals with case law from the ECJ. No case may be referred to the ECJ after Brexit. Any case decided by the ECJ after Brexit will not bind UK courts, nor are the UK courts bound to consider it, though they may consider and apply it if they wish. (It will be persuasive, in the same way as the jurisprudence of the European Court of Human Rights, except that under section 2 of the the Human Rights Act 1998 the UK courts are bound to take account of that, whereas under the EUWB they are not bound to take account of post-Brexit ECJ jurisprudence.)

Pre-Brexit cases will continue to bind UK courts, though the Supreme Court may decide to depart from them on the same basis as it departs, on rare occasions, from its own previous decisions.

This mirrors the legislative position. Anything already in place on the table of primary law will remain on the table, unless and until the waiter takes it away; but the glittering cloth of the field of blue and gold on which it once rested has been whisked away.

There are other, more complicated, provisions about case law and the various meanings of “retained case law” which will merit further consideration, probably by someone better qualified to provide it than this commentator.

Euratom bomb shell

Amazingly, when Theresa May sent the article 50 notification to Donald Tusk, informing the EU of the UK’s intention to leave, she was so emboldened by the landslide vote by which Parliament had authorised the move, that she explicitly bigged it up to include the European Atomic Energy Community (EAEC), otherwise known as Euratom.

Though it shares some of the same institutions and procedures, the pan-European nuclear regulator is in fact a distinct organisation, which the UK could have chosen not to leave. At any rate, the need to do so appears to be debatable. Mike Galsworthy, on politics.co.uk (Euratom is the perfect test case for revoking Article 50) notes that “A report in May 2017 by the House of Commons business, energy and industrial strategy committee questioned the legal necessity of leaving Euratom.”

Now, it seems, some MPs are getting cold feet about it, with the prospect of needlessly replacing its functions with domestic equivalents, or finding some sort of compromise solution, whereby it buys from or outsources to Euratom certain regulatory functions without actually being a member. (But this might also mean signing up to the jurisdiction of the European Court of Justice, as the final arbiter of any dispute.) There has been talk of a parliamentary vote on the matter, after some MPs raised concerns.

But, as David Allen Green points out in another recent blog (What happens to Article 5 in a U-turn on Euratom?), once a notice such as the article 50 notice has been given, it is difficult to un-give it, or call it back. The article 50 notice would need to be amended, somehow, or revoked and re-sent in an amended form, which all sounds like just the sort of thing we don’t need cluttering up the order papers when there’s a massive constitutional upheaval in progress. That said, as David points out,

“if notification can be revoked or amended in respect of Euratom, it must be implicit that it can be revoked or amended … in respect of its primary purpose of the UK leaving the EU altogether.”

Ultimately, he says, it is not for Parliament, but for the other 27 states in the EU to decide whether to permit, and accept, such a change. But if they did, that might be a good opportunity for the UK government to give the whole matter of Brexit a proper rethink and get its house in order before re-issuing the article 50 notice, if at all.

Centre ground

Meanwhile, and not for the first time, former prime minister Tony Blair has added his voice to the party of reason, suggesting in essence a sort of compromise on freedom of movement that will probably not satisfy anyone. As a comment on where we are and what we might do to fix it, it reeks of the kind of competence and political realism that today’s parliamentary big wigs sorely appear to lack: see Brexit and the Centre

Blair is not alone in suggesting that Brexit deserves a re-think, if not total reversal; and that no amount of “will of the people” waving can justify a nation deliberately embarking on a policy which it knows will cause it both short and long term harm. At any rate, there have been growing calls from business and academia, at least for a second referendum. See, for example, Jonathan Freedland There’s still a real chance for a second Brexit referendum.

 

Judiciary

Appointment of new Chief

Sir Ian Burnett, who might have been a perfect choice to chair the Grenfell Inquiry, has instead been appointed Lord Chief Justice to replace Lord Thomas of Cwmgiedd, who will retire on 1 October. The reason he might have been a good inquiry chair is that, according to his biography on the Judiciary website, in his practice at the Bar he

focussed on public and administrative law, personal injury and health and safety law, including acting as junior counsel to the King’s Cross Fire inquiry and to the inquiry into the convictions of the Guildford Four and Maguire family. He was leading counsel to the inquiry into the Southall rail crash and into train protection systems following the Paddington train crash. His final case at the bar was as counsel to the inquests into the deaths of Diana, Princess of Wales and Dodi al Fayed. He was involved in many judicial review and public law cases and, in particular, in the years following 9/11 those concerning the government’s response to the risk of terrorist attack.

He became a High Court judge in 2008 and a Lord Justice of Appeal in 2014. And now, as Joshua Rozenberg points out on Facebook, he’ll be the “youngest chief justice for half a century”, ie “since Lord Parker of Waddington was appointed in 1958”. Moreover, “At 59, he will now have the challenge of leading judges who are older and more experienced than he is.”

 

Employment

Taylor review

The review of modern working practices, chaired by Matthew Taylor, last week published its report, Good work: the Taylor review of modern working practices (pdf). As was widely expected, it considered such things as the “gig economy” and “zero-hours contracts” as manifestations of the contemporary world of work, in which job creation appears healthy but job security less so. Presenting the report at the RSA on 11 July, Taylor said:

let me make clear that the Review team thinks flexibility is a good thing, in fact we need more. Let me underline that getting a job is still the best way out of poverty and path to opportunity. And let me reassure firms and organisations that good employers have absolutely nothing to fear from our proposals.

The crux of the zero-hours / gig economy issue was what he called “one way flexibility”. Two-way flexibility was great, but

One sided flexibility is when employers seek to transfer all risk on to the shoulders of workers in ways which make people more insecure and make their lives harder to manage.

Calling for “a more concerted and determined approach to improving the quality of work in our economy” the report puts forward a number of proposals, including:

  • primary legislation to define the boundary between self-employment and worker status
  • a new role for the Low Pay Commission exploring how to improve quality and progression in sectors with a high proportion of low paid workers,
  • a national framework for employability skills so we can develop the kind of transferable capabilities that can be acquired in formal education and also informal and on the job learning.
  • Specifically, that people who work for “platform-based companies”, such as Deliveroo and Uber, be classed as “dependent contractors”

See, for more on this:

Family law

Consultation on de-linking of money claims

The Family Procedure Rule Committee has launched a consultation on proposed amendments to Part 9 of the Family Procedure Rules 2010: Applications for a Financial Remedy. The aim of the amendments is to de-link financial remedy claims from those for a decree of divorce or dissolution of a civil partnership, so that it will no longer be possible to make an application for a financial order in a divorce petition or dissolution application. This is something on which the President of the Family Division, Sir James Munby, had already expressed an opinion, strongly supporting the de-linking, in his 17th View from the President’s Chambers. (We covered this at the time: see Weekly Notes — 22 May 2017Dee and Ann to part…)

Additionally, the proposed amendments would also make changes to the types of financial remedy cases to which the procedure in Chapter 5 of Part 9 of the FPR applies, rename that procedure as “fast track” and make some minor changes to the procedure itself.

This consultation closes at 5pm on Friday 8 September 2017.

Media law

Social media offences

Two interesting cases last week. First, and most egregious, was the conviction of Viscount St Davids on two charges under section 127 of the Communications Act 2003 for sending menacing messages by means of a public electronic communications network, by posting them on Facebook. One of them, which was found to be racially aggravated, related to a threat made against Gina Miller (who was the lead claimant in the Art 50 case).

The posts themselves are pretty horrible and nasty, and the viscount’s excuse — that they were basically a private joke that he didn’t expect anyone else, let alone the victims, to see — cut little ice with Senior District Judge (Chief Magistrate) Emma Arbuthnot. Her judgment, published on the Judiciary website, sets everything out in detail and explains things very clearly for the benefit of a defendant who represented himself. A second judgment sets out her sentencing remarks.

There is a helpful explainer on the UK Criminal Law Blog, which also discusses the sentence of 12 weeks’ imprisonment.

The second case, though dating from last month, was reported on Legal Futures today and concerns a legal blogger who was sued for libel after writing what was essentially a fair and accurate summary of legal proceedings. What is alarming is that the case even got off the ground, which it probably wouldn’t have done if the claimant had gone to a solicitor, but he acted as a litigant in person.

According to Legal Futures:

Ben Amunwa was sued by a lecturer over a blog he wrote on a successful appeal the lecturer had brought in a disciplinary case. […]

Mr Amunwa [is a barrister who] practises at The 36 Group — which includes 36 Bedford Row chambers — and has a personal website lawmostly.com.

He was sued by Tariq Alsaifi, who had been a lecturer in accountancy and finance at Newcastle College but was dismissed over allegations of inappropriate behaviour towards a 17-year-old student.

The lecturer successfully appealed against the regulator’s prohibition order: Alsaifi v Secretary of State for Education[2016] EWHC 1519 (Admin). Mr Amunwa then discussed the case on his blog. Mr Alsaifi then sued him for libel, and Mr Amunwa applied to have it struck out.

The matter came before Warby J as Alsaifi v Amunwa[2017] EWHC 1443 (QB) . Giving judgment on 27 June, the judge began by complaining about the excessive documentation submitted to the court, at [13]:

It is unreasonable, and tends to obstruct [the overriding] objective, if the parties deluge the court with so much written material on an application of this kind.”

He concluded at [14] to [16] that the words of Mr Amunwa’s article “are clearly capable of defaming Mr Alsaifi” but that “ the court would inevitably conclude” that they “constituted a fair and accurate report of the Appeal Judgment”, and therefore covered by privilege under the Defamation Act 1996. If and to the extent that they didn’t, then they amounted to honest opinion under section 3 of the Defamation Act 2013. Accordingly (and having written a long judgment in spite of his stated aversion to excessive documentation), he granted Mr Amunwa’s application for summary disposal (dismissal) of the claim.

Legal services

Inner Temple library

We have reported before on the radical plans to restructure Inner Temple library in order to convert more than half of the space to create meeting rooms, offices and an auditorium for education and training: see Weekly Notes — 4 September 2015. A petition was started and got a lot of support, but the powers that be were not persuaded.

Now David Allen Green, writing as Jack of Kent, and a member of Inner Temple, has written the first of a series of posts on “ this act of impending vandalism.” He says, rightly,

The library of the Inner Temple is as good a law library as it is possible for a law library to be. […] It is an extraordinary and wonderful place for any lawyer, from a student to a QC, to work. There is no better place in England to research a legal point.

Much of the Temple has been destroyed by the Great Fire of London or wartime bombing, but much else has survived, and what was rebuilt after the war took on the character of the surrounding buildings. The Inns of Court are unique in providing a quiet place of both academic and professional work. The libraries reflect that, and cannot be replaced by online resources. Older books, not available online, are frequently referred to. Lincoln’s Inn is in the course of building an extension to its library, developing the magnificent facilities it offers its members and those of other Inns. But that should not excuse the vandalism at Inner Temple, which seems motivated more by a desire for profit. After all, there are plenty of other buildings nearby where meeting rooms or offices could be located. They’re called chambers. There’s nowhere to locate another magnificent library, like the one they’ll be destroying.

 

Tweet of the Week

is from Jen Persson and is a comment on the Brexit negotiations (yes really) 😉

That’s it for now. Our thanks to all who flagged up stories, via their blogs (which we always try to acknowledge) and via Twitter (where useful tweets are retweeted).

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.

 

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