Weekly Notes: legal news from ICLR — 3 July 2017

Posted on 4th Jul 2017 in Weekly Notes

This week’s roundup of legal news and commentary ranges from the wheels of justice to the deals of politics, with appointments and disappointments on the way. It’s Dup Dup Go! for Theresa May, and less is more for Moore-Bick’s show. The new Lord Chancellor was sworn in under heavy robes on a sweltering day and still heavier obligations (for as long as he shall stay). Plus good news and bad from other jurisdictions.UPDATED 5 July.

The full majesty of the law, in brief: Etherton MR, Lidington LC, Thomas LCJ

Government

‘Lord Chancellor for interesting times’ appointed

The Lord Chief Justice, Lord Thomas of Cwmgiedd (far right in the picture), marked the swearing-in of the new Lord Chancellor, David Lidington MP (centre), on 19 June with the news that he was destined to be

a Lord Chancellor for interesting times; ones that will reshape our justice system for the 21st Century.

That has an echo of the ancient Chinese curse, “may you live in interesting times”. However Lidington, who like his three immediate predecessors is not a lawyer, has nevertheless had some exposure to law. As Lord Thomas said in his speech, Lidington when earning his doctorate in history made a close study of the enforcement of penal statutes from 1558–1576 before the Court of Exchequer. Since then, he has acquired considerable political experience and, while serving from 2010 until 2016 as Minister of State for Europe, championed the rule of law in the following terms on International Human Rights Day in December 2015:

A state which respects the rights of its citizens and fosters an independent judiciary and equality before the law, will be safer, more orderly and more prosperous. For this reason, strengthening the rule of law and access to justice is — and will remain — central to our work around the world.’

As Lord Chancellor, he will now be entrusted with protecting the rule of law and access to justice in our domestic jurisdiction. Emphasising this point, the Lord Chief Justice went on to remind the Lord Chancellor of the solemn duties by which he was now bound:

Each of the three oaths you have taken is of great importance, but it is the third that encapsulates the special constitutional responsibilities for respecting the rule of law, for defending the independence of the judiciary and for the provision of resources which Parliament has entrusted to the Lord Chancellor. So important and significant are they that Parliament uniquely required the holder of the office to swear a solemn oath to perform, as we have just witnessed.

The new Lord Chancellor responded that he was

determined I will be resolute and unflinching as Lord Chancellor in upholding the rule of law and defending the independence of the judiciary.

Nevertheless, he took the opportunity to remind forum-shopping overseas litigants that

the UK is seen as the home of high quality justice and legal services. People come here from around the world to have their legal disputes resolved because they know that they will get a fair and independent hearing. […]

And looking ahead as we leave the European Union, it will be a priority for me to promote our excellent legal services both at home and as a major UK export, to maintain London as a competitive hub and ensure people continue to see English law as the law of choice.

Some suggestions for how he might make a better start in his new job than his predecessor were provided by Will Heaven on the Spectator blog: Butter up the judges, release some prisoners: how David Lidington can survive as Justice Secretary. (The author was speechwriter to Michael Gove and Liz Truss at the MOJ, so probably knows what he’s talking about in terms of presentation at least.)

Parliament

May-DUP story

They said it couldn’t be done, but it was eventually done: the deal to seal a working majority for the minority Conservative government following Prime Minister Theresa May’s failed election gamble. With the support, on a confidence and supply basis, of ten elected MPs of the Democratic Unionist Party of Northern Ireland, the government was able to defeat (by 323 votes to 297) a Labour motion on the Queen’s Speech calling for an end to the cap on public sector pay.

The cheers on the Conservative benches that followed the government’s victory on that issue were categorised by critics as heartless “braying” but looking at the matter charitably the cheers were probably more an expression of boosted confidence after the disappointments of the election, than delight in the prospect of depriving public sector workers of reasonable pay for their often selfless and thankless hard work. (Since then a number of Tories have indicated a willingness to adopt a softer line on pay restraint, perhaps in response to evidence of a change of public mood towards austerity.)

The Queen’s Speech, with its two-year programme for legislation, most of it in support or implementation of Brexit, was approved by 323 votes to 309.

See: Politics Home, Queen’s Speech passes the Commons as DUP MPs back Theresa May’s plans

Grenfell Tower inquiry

Appointment and disappointment

First the appointment: Sir Martin Moore-Bick, retired Lord Justice of Appeal, has been appointed chair of the Grenfell Tower Fire public inquiry, on the recommendation of the Lord Chief Justice, Lord Thomas of Cwmgiedd. The announcement came in a written statement by the Prime Minister, Theresa May, to Parliament.

Sir Martin is currently a member of 20 Essex St chambers, where he “accepts appointments as an arbitrator”. As a barrister,

he specialised in disputes relating to the carriage of goods by sea and road, commodity trading, general sale of goods, insurance and reinsurance, arbitration law and practice, banking and financial matters and other kinds of commercial contracts.

He was appointed QC in 1986 and a High Court judge in 1995, sitting mainly in the Commercial Court before joining the Court of Appeal as a Lord Justice in 2005.

His appointment as chair of the Grenfell Tower inquiry has not yet been reported on his own chambers’ website: perhaps wisely. Questions of suitability (along with those of the “who he?” variety) have naturally been asked, not least because other recent public inquiries, such as those into child abuse or secret policing, have had “difficulties with chairs” (for various reasons).

It is not clear how much experience Sir Martin has had in building and construction cases, but barrister Paul Darling QC (@BuildingSilk), former chair of the Technology and Construction Bar Association (TechBar), assured us that he was indeed up to speed:

Superficial research has not found a massive number of reported cases in which Moore-Bick J or LJ has had to consider issues relating to cladding as such, but there is one: Seele Austria GmbH & Co KG v Tokio Marine Europe Insurance Ltd [2008] EWCA Civ 441; [2009] 1 All ER (Comm) 171; [2008] BLR 337. However, the problem in that case related to windows, not cladding, though the cladding had to be removed to fix the windows.

Sir Martin’s appointment was described as “controversial” in some newspapers (eg the Guardian) because, while sitting in the Court of Appeal, he made a decision in a housing law case which was overturned (ie reversed) on appeal to the Supreme Court. That seems a slightly ridiculous objection, since the whole point of the appellate process is to correct the law, and the way it is understood and applied in the courts — not to put errant judges on the naughty step. Besides, although it involves housing, the inquiry is really about construction, health and safety, and regulatory issues, not housing law per se.

Now for the disappointment. Sir Martin made a point of visiting the locus in quo and speaking to survivors and local residents shortly after his appointment, which was the right and fluffy thing to do (something not well handled by Theresa May and others in the immediate aftermath of the disaster) but he then rather spoilt it all by apparently trying to “manage expectations” of his remit, saying:

“I’ve been asked to undertake this inquiry on the basis that it would be pretty well limited to the problems surrounding the start of the fire and its rapid development in order to make recommendations about how this sort of thing can be prevented in future.”

He added: “I’m well aware the residents and the local people want a much broader investigation and I can fully understand why they would want that. Whether my inquiry is the right way in which to achieve that I’m more doubtful.”

(See The Independent.) This was widely criticised as not starting off on the right foot at all, with the victims, who wanted to be consulted on the terms of reference and choice of chair, and some of whom are now saying they will not cooperate with the inquiry, despite being promised legal aid to do so. See Telegraph: Grenfell group threatens to boycott inquiry if judge is not changed.

Perhaps Sir Martin should first have consulted his fellow retired Lord Justice, Sir Henry Brooke, who blogged on A need for greater empathy, when conducting such an inquiry.

Terms of Reference

At the time of writing, formal terms of reference had not been settled. However, some indication of what is expected may be divined from the Queen’s Speech, which included the following

My government will initiate a full public inquiry into the tragic fire at Grenfell Tower to ascertain the causes, and ensure that the appropriate lessons are learnt.

To support victims, my government will take forward measures to introduce an independent public advocate, who will act for bereaved families after a public disaster and support them at public inquests.

One of the aspects that must certainly be included in the terms of reference is the state of the fire regulations applicable at the time of the refurbishment of the tower. On this, it appears from an article published after the blaze last month, by the Financial Times’ architecture critic, Edwin Heathcote, (Grenfell Tower blaze shows we tinker with rules at our peril), that there has been “a long and successful political campaign to denigrate regulation”. He concludes, ominously:

The building regulations in place when Grenfell Tower was designed demanded generous space standards (which were abandoned by Margaret Thatcher’s government in 1980) and made rigorously codified fire provision for escape and compartmentation. These had been eroded in the rebuilding of Grenfell Tower as more flats were squeezed in to increase accommodation.

Regulation has been denounced as “red tape” and the Conservatives have consistently voted against legislation to regulate landlords’ obligations better. Building regulations for fire prevention and safety have not been reviewed for more than a decade, even though most regulations are re-examined every couple of years to keep pace with changing technology and materials.

The right has gleefully pointed to Brexit as an opportunity for a “bonfire” of red tape. Sparks from a bonfire, however, can sometimes catch.

Another aspect that will be need to be considered is the enforcement of such regulations as there were, and their proper scrutiny by the local authority. On this, we were referred to a Twitter thread by Natalie on the RKBC documents, minutes and records on the TMO company and Grenfell, which begins here:

Reasons and resignations

The local authority (Royal Borough of Kensington & Chelsea, or RBKC) cabinet met on 29 June to discuss the Grenfell Tower fire. They had hoped to exclude journalists following an earlier council meeting which had been invaded by protesters. But the mainstream media went to court and obtained an injunction, requiring RBKC to allow journalists in to the cabinet meeting. There were angry scenes. The sorry mess is written up in the Financial Times (Kensington council meeting on Grenfell descends into chaos). The council later issued a statement, which appeared to have missed the point about why journalists wanted to be present, and perhaps also the point of the legal advice they claimed to have received:

The Cabinet received legal advice that in order not to prejudice the public inquiry the meeting could not proceed as it would not be possible to restrict the discussions without straying into areas that would fall within the remit of the public Inquiry.

As numerous people pointed out, the public inquiry could not possibly have been prejudiced by any discussion of the council about the fire. However, the position of the council itself and its members may have been prejudiced in the inquiry. See this thread, begun by David Allen Green:

In a subsequent tweet he reported that he had sent a Freedom of Information request to the council to obtain details of the advice given.

Following the abortive meeting, the Council leader, Nicholas Paget-Brown, has resigned, saying he had to accept responsibility for “perceived failings” by the council after the tragedy. “I have therefore decided to step down as leader of the council as soon as a successor is in place,” he said (see BBC, Grenfell fire: Council leader quits over fire response). If he still thinks the failings were merely perceived, then he probably lacks the self-knowledge necessary to be an effective council leader. His resignation had been called for by, among others, the mayor of London, Sadiq Khan.

The chief executive of the Kensington & Chelsea Tenant Management Organisation (KCTMO) also stepped aside, or down, some two weeks after the disastrous blaze at Grenfell Tower. An interim CEO is being sought to continue management operations for other KCTMO properties. According to Huffington Post:

Robert Black quit the organisation, which manages the tower where at least 80 people lost their lives in the fire on June 14, so he can “concentrate on assisting with the investigation and inquiry”, the group said in a statement on Friday.

Commentary and updates

Obiter J, Law and Lawyers blog, Grenfell Tower Inquiry Chairman (useful and frequently updated roundup)

Nearly Legal blog, Aftermath

BBC, Why do England’s high-rises keep failing fire tests?

UPDATE: 5 July 2017. The chair, Sir Martin Moore-Bick, has now launched a consultation on the terms of reference for the Grenfell Tower Inquiry. This follows continued criticism both of his appointment (the local Labour MP has apparently called for his replacement by someone with a “human face”, as though he were a fish or giraffe), and of the apparent failure to consult victims and residents over the terms of reference. (Events are continuing to unfold so we will probably need to update the story in next week’s edition.)

Prisons

Open letter from new Lord Chancellor

Justice Secretary David Lidington set out the essential reforms under way to make prisons places of safety and reform, in an open letter dated 21 June 2017. He made predictably positive-sounding noises (as indeed his predecessors have done, to mixed effect):

Prisons have been going through a particularly turbulent time and we need to create calm and ordered environments for that effective rehabilitation. That means giving offenders the help they need to get off drugs, and the education, training and support to help them find employment when they leave prison.

The following day his Prisons Minster, Sam Gyimah, as part of his continued nationwide tour of prisons, visited HMP Stoke Heath and Warkwickshire and West Mercia Community Rehabilitation Company to thank staff for their vital work. You can read about that here, via the MOJ.

And the day after that, 23 June, the POOTY awards 2017 were announced. POOTY sounds like an Edwardian diarist but stands for Prison Officer Of The Year, which is an annual awards scheme to celebrate hard-working and dedicated staff from across HMPPS (Her Majesty’s Prison and Probation Service). They now include Probation Champion of the Year and Prison Officer of the Year awards.

Mental health

The news here is not so exciting. The National Audit Office (NAO) is scathing in its recent report (dated 29 June) on the government’s collection and use of data on mental health in prisons:

Government does not know how many people in prison have a mental illness, how much it is spending on mental health in prisons or whether it is achieving its objectives. It is therefore hard to see how Government can be achieving value for money in its efforts to improve the mental health and well being of prisoners.

Rates of self-inflicted deaths and self-harm in prison have risen significantly in the last five years, suggesting that mental health and well-being in prison has declined. Self-harm rose by 73% between 2012 and 2016.In 2016 there were 40,161 incidents of self-harm in prisons and 120 self-inflicted deaths.

Mental health issues are exacerbated by the lack of funding that means prisoners end up spending more time in their cells for lack of staff or facilities. There seems also to be a lack of ‘joined-up’ approach between HMPPS, its predecessor NOMS (the National Offender Management Service), and the National Health Service, particular in relation to privately run prisons or where reorganisations take place.

You can read the full report here: Mental health in prisons

Prison population figures for 2017 were updated on 30 June via the MOJ site.

Media Law

Media and Communications List: Consultation Report

The responses to Warby J’s consultation on a small number of procedural questions for practitioners and other interested parties concerning cases in the new Media List have now been analysed, and today’s report (see link below), sets out the main conclusions and next steps.

There’s a handy summary on Inforrm’s blog.

Read the report.

Legal Services

Bar Standards Board consultation

As we reported earlier (in Weekly Notes — 22 May 2017), the BSB is conducting a consultation on the question of the standard of proof to be applied in disciplinary hearings against barristers, currently set at the more stringent criminal standard. Two legal commentators have now written excellent blogs on the question, broadly supportive of the proposed change to the less stringent civil standard:

In a related development, Legal Futures reports that

Barristers who are cleared of misconduct by a disciplinary tribunal can still be sanctioned for breaching the BSB Handbook, under new changes to the rules approved by the Legal Services Board.

We have not been able to find any actual press release or announcement content on which this is based, on either the BSB or the LSB site, but hope springs eternal.

CIVIL LITIGATION BRIEF — HAPPY FOURTH ANNIVERSARY!

Barrister Gordon Exall’s blog providing “Updates and Commentary on Civil Procedure, Costs, Limitation, Sanctions & Evidence” recently celebrated its fourth anniversary. Gordon is tireless in scrutinising and commenting on new judgments and pulling all sorts of procedural gems out of the most unpromising, or at any rate routine-looking, cases. He says, in a blog post marking the anniversary, “There has been more than a post a day throughout the history of the blog to date”. That is a pretty astonishing work rate.

The label “walking White Book” used to be a common designation in the old days, particularly for the sort of barristers who hung about in the Bear Garden (a sort of waiting room for ex parte applications in the Royal Courts of Justice); but in Gordon’s case he should probably be labelled the “blogging White Book”. However, that might suggest he had no other interests in life, which would be quite mistaken. He is also a keen and accomplished guitar and mandolin player, as anyone who follows him on Twitter will know.

They will also be familiar with the CAPITAL LETTERS in which, by some WordPress magic, his blog posts titles are automatically broadcast on Twitter. (At least, we believe that is the explanation, and not simply some desire to sound SHOUTY.)

Law (and injustice) from around the world

America

Travel ban upheld in part by SCOTUS

The US Supreme Court has partially reversed the Court of Appeals orders preventing implementation of the so-called Muslim Travel Ban imposed by executive order of President Trump in those heady early days of his presidency. SCOTUS agreed to hear the case, but stopped short of reinstating the entire travel ban; instead, they allowed travel to the US from the six relevant (mainly Muslim) countries by those able to demonstrate a “bona fide relationship” with a “person or entity” in the United States. (See New York Times, With 3 Words, Supreme Court Opens a World of Uncertainty for Refugees.)

According to the Daily Telegraph report of the justices’ decision,

“The interest in national security is an urgent objective of the highest order,” they said in their ruling. Only those “with a credible claim of a bona fide relationship with a person or entity in the United States,” can pass US borders.

You can read the judgment here.

Germany

Same-sex marriage law passed

A tweet from the German Foreign Office was suitably joyful in its announcement of the good news:

Interestingly, Germany’s Chancellor, Angela Merkel, who is apparently the daughter of a protestant pastor, voted against the measure, saying marriage was a union of one man and one woman (as indeed it used to be defined in English law, in Hyde v Hyde and Woodmansee (1866) LR 1 PD 130). But she allowed legislators to vote with their consciences by making it a free vote. See Reuters: German lawmakers approve same-sex marriage in landmark vote

Netherlands

Srebrenica massacre ruling

An appeal court in The Hague has ruled that the Dutch government is partially liable for the deaths of around 300 Muslim men killed in the Srebrenica massacre, according to The Independent.

Presiding judge Gepke Dulek-Schermers said that Dutch soldiers “knew or should have known that the men were not only being screened … but were in real danger of being subjected to torture or execution”.

In a departure from an earlier ruling, the court said the Netherlands should pay only 30 per cent of damages to victims’ families, after estimating odds of 70 per cent that the victims would have been dragged from the base and killed regardless of what action Dutch soldiers took.

Tweet of the Week

… marks the sad recent death of Michael Bond, author and creator of Paddington Bear. As immigration barrister Colin Yeo pointed out in a brilliant review of the 2014 film, Paddington Bear is essentially a migrant, from darkest Peru, and his peregrinations on arriving on these shores are those of a stranger in a strange, but not necessarily unwelcoming, land.

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.

 

Featured image via Ministry of Justice.

 

Sign up now for weekly email alerts from this blog. Just put your email address into the box on the left.