Weekly Notes: legal news from ICLR — 13 February 2017
Posted on 13th Feb 2017 in Weekly Notes
This week’s tour of the legal horizon includes a parliament voting, a speaker speaking, a court reporting, a president tweeting and a couple more of those referendum thingies. Will o’ the people or will o’ the wisp, we’ve all got democracy coming to us.
[Image via the ImmigrationJustice.US portal: see story below]
When is a concession not a concession? When it’s something you could have had anyway.
The government has been miserly in allowing scrutiny of any sort over its plans and negotiations for Brexit, to the extent of even being cagey about what Brexit actually means. Brexit means Brexit is not a helpful definition. Talk of a red, white and blue Brexit, and disparagement of the distinction between hard and soft Brexit have likewise added only confusion to the picture. We were told there was a plan, perhaps even a cunning plan; but when there was a speech, and later a White Paper, there seemed to be nothing cunning about the plan, if any, which just seemed to involve trying as far as possible to have one’s cake while at the same time eating it.
This week, before it goes off to the House of Lords, the House of Commons had a second bite at the Brexit Bill cherry, enabling the government to invoke Article 50 of the EU Treaty, which the previous week they barely nibbled at (see Weekly Notes — 6 February 2017).
This time round just six other Conservative MPs joined democracy hero Ken Clarke in defying the Tory whips, and 52 Labour MPs, including some notable front benchers. Shadow business secretary Clive Lewis, once a key Corbyn ally, now touted as a rival for the leadership, resigned his front bench seat in order to vote against the Bill. But even so, the Bill was voted on its way without a single amendment. Some amendments were debated, but none got enough support.
To achieve this remarkable result the government made a concession, in response to a Labour demand (in an amendment that was supported by Tory rebels but ultimately defeated) for parliament to have the final say on any deal to leave the EU, in the form of what The Week called
a verbal reassurance that MPs and peers would be able to vote on whether or not to accept the deal before it goes to the European Parliament. [However] The government said it would leave the EU with no trade deal, rather than renegotiate, if parliament rejected the terms and conditions.
Although shadow Brexit secretary Sir Keir Starmer hailed this as a “significant victory for Parliament”, which might provide an opportunity to force the government back to the negotiating table if the EU deal is not good enough, in reality it appears to amount to little more than had already been rather vaguely promised by Theresa May in a speech some time ago, and would probably have happened anyway.
- Mark Elliott, Public Law for Everyone blog, Deal or no deal: Government ‘concedes’ parliamentary vote on terms of Brexit (pointing out that the only thing that might make the vote on the final deal worth having would be if article 50 turns out to be unilaterally revocable – an issue the subject of current proceedings in Ireland which may result in a reference to the European Court of Justice).
- Andrew Rawnsley in the Guardian, Parliament has diminished itself at this turning point in our history
Speaking out of turn? Bercow’s outburst
The other notable event in Parliament this week was a little rant / shot across the bows / “clarification” by the Speaker of the House of Commons, John Bercow MP, who, responding to a point of order in the Commons on 6 February 2017, said he was “strongly opposed” to the idea of President Trump addressing Parliament when visiting the UK, which he said was not an “automatic right” but an “earned honour”.
I would not wish to issue an invitation to President Trump to speak in the Royal Gallery,” he continued. “As far as this place [the Commons] is concerned, I feel very strongly that our opposition to racism and to sexism, and our support for equality before law and an independent judiciary, are hugely important considerations in the House of Commons.”
His statement was welcomed by some, according to the BBC, but was criticised by others as a breach of his duty of impartiality and an overstepping of his role. There was huffing and puffing about him having to resign, but in the end an Early Day Motion lodged by a conservative MP, James Duddridge — “That this House has no confidence in Mr Speaker” — has so far only attracted one signature, that of Mr James Duddridge. You can see if any more MPs choose to join him, on this page of the Parliament website.
Online courts consultation response
The Ministry of Justice has published its response to the consultation on certain aspects of the Transforming Our Justice System project, to set up online courts. The consultation addressed three broad aspects: assisted digital strategy, automatic online conviction and panel composition in tribunals.
What has been noticeable so far is a want of consideration of the open justice aspects of any online courts system, and this document fails to allay our fears about this. That making the online court visible to public scrutiny was little more than an afterthought was confirmed when Lord Justice Fulford gave his optimistic talk at the Law Society last year (see Justice down the rabbit-hole) as reported on this blog.
The Government response (Cm 9391) barely mentions the idea of open justice, saying only (in relation to standard penalties following online guilty pleas):
In relation to transparency, we are currently developing a solution which will ensure that the principle of open justice is maintained as we move to digital channels. We will ensure that all interested parties, including victims, witnesses, the public and the press, will have access to case listings and outcomes where appropriate.
This says nothing concrete about public scrutiny of the justice system when it moves online, or how it will be managed, or how the press and law reporters might be able to cover live cases. There are obvious digital solutions, such as the Public Access to Court Electronic Records (PACER) system used in the United States, which in many ways is marvellous and very transparent, but also recognises the need for some restrictions. In answer to the FAQ “Is All Case Information Available to the Public?” the home page states:
No. Some case information is protected. Certain personal identifiers are removed or redacted before the record becomes public, including Social Security number, financial account numbers, the name of a minor, date of birth, and home addresses in a criminal case. In addition, some documents may be unavailable to the general public…
The question we need to ask is what sort of filters or protections the Ministry of Justice will manage to put in place here. The prospect of public access to listings and outcomes, particularly in relation to criminal offences, raises issues about the risk of creating a permanent online criminal record, the risk for employment prospects, and frustration of the aims of the Rehabilitation of Offenders Act and of the Right to be Forgotten, which were quickly seized on by commentators. Many of these concerns are addressed by Penelope Gibbs, writing on the Transform Justice blog, asking How can justice be “seen to be done” in an online system?
- Legal Futures, Computer says ‘guilty’ – online convictions set to become reality
- Jacobs and Larrauri, in Punishment and Society (2012) (via ResearchGate, free PDF available ) Are criminal convictions a public matter? The USA and Spain
- Aidan Wills on Inforrm’s blog, Spent convictions in the law of Privacy and Data Protection: Part One and Part Two.
Annual Report: Court of Appeal (Criminal Division)
The latest report, introduced by the Lord Chief Justice, Lord Thomas of Cwmgiedd, covers the years 2015-2016. The report includes digests of a number of Cases of Note providing guidance for courts and practitioners, including such matters as Sentencing for Terrorism Offences, Historical Sexual Offences and Jury Tampering.
The report addresses the question of Improving access to and delivery of justice for Litigants in Person, noting that:
Applications from unrepresented applicants continue to increase and are now having an impact on all work of the Criminal Division. This often involves an increase in work for the staff of the Criminal Appeals Office, which compounds pre-existing pressures.
Fathers 4 [open] Justice
Thanks to a case comment on the UK Human Rights blog, we have been alerted to a recent decision, which, while not about family law, is certainly about transparency. The fact that O’Connor v Aldershot Magistrates Court  EWHC 2792 (Admin) involved the founder of the well-known family law campaigning group Fathers4Justice adds interest, though not relevance, to the case.
The claimant, O’Connor, sought judicial review of a decision by court staff at Aldershot Magistrates Court (who feared the proceedings might be disrupted) to exclude a number of his supporters from the courtroom on 20 February 2015, during his trial for a public order offence. Interestingly, the Queen’s Bench Divisional Court (Fulford LJ and Leggatt J) permitted a McKenzie Friend, Dr Michael Pelling, to make representations on his behalf.
Having cited Scott v Scott  AC 417 and other cases on the topic, the court in its judgment emphasised the importance of the principle of open justice (that justice should be seen to be done) and ruled that, by failing to consult the judiciary before excluding members of the public from the courtroom during the trial, the magistrates court staff had acted unlawfully, and in consequence no valid proceedings had taken place.
Reporting the family courts: are we doing it justice?
Booking is now open (and tickets going fast) for the Transparency Project’s multi disciplinary event A collaborative discussion between those working in and reporting on the family justice system
This event, hosted by The Transparency Project to coincide with the publication of their Media Guide for journalists, aims to promote cross-silo discussion about the reporting of family courts and how we might improve it.
The event will be chaired by Jo Delahunty QC, Gresham Professor of Law and will take the format of a panel discussion followed by questions and contributions from the floor. Panellists will include :
The Honourable Mr Justice Peter Jackson
Sanchia Berg (BBC)
Brian Farmer (Press Association)
Dave Hill (immediate past Chair Association of Directors of Children’s Services)
Will Moy (Director, Full Fact)
Gill Phillips (Director of Editorial Legal Services, Guardian News & Media)
Lucy Reed (Barrister, Chair The Transparency Project)
Debbie Singleton (Co-Chair, Association of Lawyers for Children)
Courtroom drama: Apple Tree Yard
Based on a novel by Louise Doughty, Apple Tree Yard was dramatised for the BBC and shown in four episodes between 22 January and 6 February 2017. As often (and with depressing regularity) happens, lawyers, especially criminal practitioners, had a lot to say about the authenticity of the court scenes and others involving lawyers. Many of these concerns were voiced in suitably exasperated prose by the blogger Crimbarrister (My Mid Life Crisis) under the title Objection! Sustained!
If there’s anything guaranteed to get the goat of a criminal lawyer, it’s having to sit through programmes like Apple Tree Yard when they try to portray anything to do with criminal procedure. The last couple of episodes of this well-acted but rather far-fetched drama had numerous criminal practitioners plucking their wigs to pieces and stamping on them in frustration. […]
Our problem is that in portraying these inaccuracies in how criminal trials operate on a day to day basis, TV shows are feeding into the current media hysteria about, in particular, trials involving sexual allegations. And this hysteria has culminated this week in what could well be described as dangerous attempts by MPs and special interest groups to interfere in the trial process and the discretion of judges (see link to the story here).
The link at the end is to a recent proposal (one of several) to protect alleged victims of sexual offences from the risk of adding insult (or trauma) to injury during cross examination by or on behalf of the accused. See Guardian, MP proposes UK rape shield law to protect victims in court.
Restrictions which apply to the process already in the criminal courts (though evidently some don’t think they go far enough) are now being extended to the family courts, where domestic violence allegations can often result in alleged victims being cross examined in person by the alleged perpetrator, but any remedy for this will cost money and therefore seems less likely than aeronautical swine at the present time. See Guardian, Violent abusers to be prevented from cross-examining ex-partners in court.
Burnley Buggers Ball
A different and rather more positive aspect of sexual offences law, thanks to a nice little story in the Guardian.
A town hall meeting, described as having been “the birthplace of gay civil rights in the UK”, which took place in Burnley Central Library back in 1971, is the subject of a new play by LGBT History Month Writer in Residence Stephen M Hornby in a play entitled the The Burnley Buggers’ Ball.
“At that meeting and in that moment everything changed,” Hornby told The Guardian. “And yet we know nothing about it. It is an amazing, desperately important event and yet I was completely ignorant and have had to start from scratch.”
The play is being performed in Burnley this month to mark the 50th anniversary of the Sexual Offences Act 1967, the landmark moment when private homosexual acts between men over 21 in England and Wales were decriminalised.
Law (and injustice) from around the world
Trump trumped — or: Federal Appeals Court upholds injunction against executive order
The United States Court of Appeals for the Ninth Circuit in the case of Washington & Minnesota (States of) v Trump & ors, by order dated 9 February 2017, has DENIED the motion by the defendants for a stay of an order of the United States District Court for the Western District of Washington, James L. Robart, District Judge, Presiding, on 3 February, restraining the defendants from enforcement of Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” aka the so-called “Muslim Travel Ban”. (See Weekly Notes — 6 February 2017)
You can read the Appeal Court’s opinion here.
As expected, the President was not slow to tweet his displeasure.
The question now, given that the case will almost certainly go to the US Supreme Court, is whether that court when it hears the appeal will include on its bench the President’s own nominee, Judge Neil Gorsuch, or whether, as some have suggested, that judge should recuse himself by reason of his association with Mr Trump. I am not altogether sure why he should, since he will have sworn to uphold the Constitution, but in any event he appears to have distanced himself from Mr Trump’s verbal attacks on the judiciary in recent days, describing them as “disheartening” and “demoralising”, according to NBC News
- Henry Brooke’s blog, President Trump and the courts: the judgment of the Court of Appeals https://sirhenrybrooke.me/2017/02/10/president-trump-the-courts-the-judgment-of-the-court-of-appeals/ (one of a series of posts analysing this litigation with all the clarity and wisdom you’d expect of a former Lord Justice)
- ABC News, Donald Trump slams US appeals court decision upholding suspension of controversial travel ban
- Lawfare: How to read and how not to read today’s 9th Circuit opinon
- Independent: Melania Trump’s immigration lawyer leads fight against her husband’s ‘Muslim ban’
Lawyers to the rescue
The crisis provoked by the President’s executive order has promoted the work of immigration lawyers and the American Civil Liberties Union (ACLU), which received record donations as it coordinated efforts to put lawyers in touch with clients adversely affected by the travel ban. It has led to other developments, too, including:
- The Airport Lawyer app, (www.airportlawyer.org) developed by a group of volunteer attorneys and software developers over the weekend following the ban. The Airport Lawyer tool is driven by technology donated by Neota Logic, a platform that makes it possible to build powerful expert systems and web-based applications very quickly.
- See also : Three Geeks and a Law Blog, Rapid Prototyping and Iterative Design with AirportLawyer.org
- The ImmigrationJustice.US portal, launched by the American Bar Association (ABA) as a rapid emergency response website to coordinate the efforts of volunteer lawyers helping immigrants in response to President Trump’s Executive Orders altering the U.S. immigration system.
- Meanwhile, in Canada, a 12-hour law student-driven Research-a-thon for Refugees worked to produce a “collaboratively researched document for a Canadian NGO, focusing on interpretation and application of the US-Canada safe third country agreement for arriving refugees, on a project managed by the NGO” according to SLAW, #Research4Refugees: A Cross-Canada Law Student Effort
Criminal defamation law struck down
In the case of Okuta and others v AG  eKLR Judge John M. Mativo sitting in the High Court of Kenya (Constitutional and Human Rights Division) on 6 February 2017 addressed the question
“whether or not criminal defamation is a ground on which a constitutional limitation on the rights of freedom of the expression, could be legally imposed.”
The petitioners, who had been charged underSection 194 of the Penal Code in relation to Facebook posts, argued that the criminal sanction was not a reasonable or justifiable restriction on freedom of expression and that the civil tort under the Defamation Act was sufficient and provided far less restrictive means of achieving the required purpose. The jduge agreed, observing that
The harmful and undesirable consequences of criminalizing defamation, viz. the chilling possibilities of arrest, detention and two years’ imprisonment, are manifestly excessive in their effect and unjustifiable in a modern democratic society,”
The judgment concluded that:
“the petitioners have succeeded in demonstrating that the offence of criminal defamation [under s 194] is not reasonably justifiable in a democratic society, hence criminal sanctions on speech ought to be reserved for the most serious cases particularised under Article 33 (2) (a)- (d) of the constitution aimed at protecting public interest.
Commenting on the case in a blog reposted on Inforrm’s blog, Nani Jansen Reventlow and Catherine Anite said
This decision is significant in safeguarding the fundamental rights of Kenyans, particularly in light of the forthcoming general elections. It curtails the misuse of criminal law provisions by political figures to curtail speech they consider unfavorable. Journalists especially have been victims of criminal defamation sanctions for exposing corruption and unlawful activities of public officials.
Naturalisation referendum favours immigrants
A referendum on access to citizenship for migrants confirmed that most Swiss voters want to make naturalisation easier for “third generation” foreigners under 25, whose parents and grandparents have lived in Switzerland for years, according to the Independent.
The “simplified naturalization of third-generation immigrants” measure passed in a national referendum with 60.4 percent of the votes, Swiss broadcaster SRF reported.
The result may only affect some 25,000 people, but the long term effects could be significant given that roughly a quarter of Switzerland’s population is foreign born, one of the highest such percentages in Europe.
However, it doesn’t apply to more recent immigrants and in some respects Switzerland remains a reluctant host country for new citizens. For example, I found another story in the Independent, dating from a few months ago, about two teenage Muslim girls who were denied citizenship after refusing to take part in school swimming lessons with boys, while their father was fined to refusing to let them.
Referendum on changes to Constitution
A referendum will be held on 16 April 2017 to seek popular support for a number of amendments to the Constitution that will apparently bring “drastic changes to the country’s political system, including a shift to an executive presidential system from the current parliamentary system”.
The changes were approved by the President, Tayyip Erdogan, after the Turkish parliament passed them by more than the 330 vote threshold needed for such radical changes, according to Hurriyet Daily News,
The changes would enable the President to exercise all the authorities of the prime minister and cabinet and possess the authority to issue decrees, appoint vice presidents and cabinet members from outside parliament. These sweeping new powers sound rather alarming, especially in a country that has just survived, not without considerable (and illiberal) fallout, a coup. On the other hand, some of the proposals seem quite obvious and sensible, like a provision that “The judiciary is required to act on condition of impartially.” You wonder what the position was before.
The proposals and referendum now have their own Wikipedia page, which helpfully sets out all the proposals and related material, and also notes that
The amendments were received with heavy criticism from opposition parties and non-governmental organisations, with criticism focusing particularly on the erosion of the separation of powers and the abolition of parliamentary accountability.
It is not clear to what extent the changes, if implemented, would affect Turkey’s stalled membership application to the European Union, but Erdogan has previously (last June) discussed the possibility of another referendum asking his people whether, in fact, they still want to continue with European membership, in the wake of Brexit and other developments. See Telegraph, Turkey considers following in Britain’s footsteps with referendum on whether to give up stalled EU accession bid.
And finally… Tweet of the week
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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