Weekly Notes: legal news from ICLR — 23 January 2017
Posted on 23rd Jan 2017 in Weekly Notes
This week’s roundup of legal news and comment includes a prime minister, three presidents, a consultation, and another referendum. No one can say it hasn’t been an eventful week!
May’s big speech: a hard (boiled) Brexit
On Tuesday Theresa May delivered her much talked-up and widely anticipated speech on the UK’s big “plan” for leaving the EU. No big surprises, really, except that she made clear what was already implicit from the various and sometimes inconsistent utterances of her ministers on the question of the free movement of people — viz, that the UK will definitely be leaving the single market. We are also leaving the customs union, but we are to retain strong links and cooperation on crime and security.
May also confirmed that she will give Parliament a debate and a vote on any final deal arrived at — though not the ability to veto it. This despite her tough-talking insistence (sounding like a hard-boiled film noir detective) that “No deal for Britain is better than a bad deal for Britain”. Accordingly, if no deal is arrived at, at least in principle, by the end of the two-year period under article 50 (for issuing formal notice of our intention to leave the EU), then we will simply default to WTO standard rules.
That leaves aside the question of Parliament’s involvement in the initial triggering of the article 50 notification. In anticipation of an adverse (against the government) decision by the Supreme Court in the Miller case this coming Tuesday (24 January), the government has apparently drafted a (very short, possibly only one-line) Bill to enable Parliament to rubber stamp the art 50 process.
Except that Parliament may not simply rubber stamp the process. It seems there is a cross-party group of MPs, including members from Labour, LibDems, Greens and some Conservatives, who would like to temper the hardness of the current Brexit line and will table amendments if and when the art 50 question is debated.
In addition a group of 43 Labour MPs, including former shadow business secretary Chuka Umunna and ex-deputy leader Harriet Harman, has written directly to the Prime Minister to protest against her plans to take the UK out of the single market and customs union.
You can hear (and read) legal analysis of the speech by Professor Michael Dougan at Liverpool Law School on the The UK and the EU: LIVING APART TOGETHER website (a new and welcome discovery for me).
- Steve Peers, EU Law Analysis blog, Brexit: the Prime Minister sets the wrong course (who says, in the end, it amounts to “putting politics ahead of the country’s economic interests”).
- David Allen Green, in the Financial Times, Has the EU won the first round of Brexit talks before they’ve started? (answer: yes)
- Henry Porter, in Vanity Fair, The Death of the British Dream: How Theresa May got away with an extreme policy that few ever really wanted (which includes a quotable line about “Boris Johnson, who is to diplomacy what Ebola is to health care”.)
- On this blog: Brexit: what the hell happens now? Book review (Review of the book that’s been sent to all MPs in the hope of them actually being able to influence the process.)
President’s 16th view – and it’s a long one
The President of the Family Division, Sir James Munby, issued this week his sixteenth View from the President’s Chambers: Children and vulnerable witnesses – where are we? (PDF) Last week we reported (Weekly Notes – 16 January 2017) that Sir James was in favour of a bar on the cross-examination of complainants of domestic violence and abuse by the alleged perpetrators, but that he felt this was something Parliament needed to legislate for. This latest bulletin from his office sets out in some detail the background since the setting up of his Children and Vulnerable Witnesses Working Group (CVWWG) in 2014, and expresses his frustration at the lack of progress in the wake of drastic legal aid cuts and the need for urgent attention to be paid to the question of providing funds for legal representation both to prevent the abuse of court proceedings by perpetrators and to help those who might be wrongly accused of abuse and violence to defend themselves fairly.
Much of this is discussed in more detail in David Burrows’ article on this blog, Family law no island (4): A metwand for family proceedings — common law and vulnerable witnesses.
Although Burrows thinks there might be another solution, Munby remains of the view (which he expressed in a lecture in 2015 at Swansea University) that “Legislation is required, like the legislation which was required to put a stop to such practices in the Crown Court.” Despite this — and you can almost hear him groan in frustration — legislation came there none.
2015 came and went. The rule and practice directions recommended by the CVWWG were not in place; indeed, though it is now 2017, they still are not.”
He quotes through gritted teeth a statement issued by the MOJ to the Woman’s Hour radio programme in response to his statement of 30 December 2016 calling for legislation on this matter. The MOJ statement has a bland robotic quality, and fails to address the question of legislation. However, there was (as we reported last week) a debate in Parliament since then, in which Sir Oliver Heald, a justice minister, indicated that the government was now looking at this with a modicum of urgency.
Meanwhile there are proposed amendments to Practice Direction 12J of the Family Procedure Rules following a review by Mr Justice Cobb. (We will comment on this soon.)
The 16th View reads in the end like a rather irascible schoolmaster’s report of a pupil (the family justice system) which “could do better” — but only if its parents can be persuaded, at long last, to provide it with the recommended kit. (Not just legal aid for proper representation, either. Decent video linking tech would also help.)
There is a useful digest of the President’s 16th View, together with Cobb J’s report on the revised PD12J, by Amy Sanders on the (Jordans) Family Law website: PSL Essential Update – View from the President’s Chambers and Review of Practice Direction 12J FPR 2010 (with thanks to John Bolch for the link).
See also: Law Society Gazette, Munby: video-links in family courts ‘a disgrace’
The Press Gazette reports that the government received more than 140,000 individual responses to its recent consultation on the implementation of section 40 of the Crime and Courts Act 2013 and the resumption of the Leveson Inquiry (“Leveson 2”). There was also a petition estimated to have over 130,000 signatures, according an update provided in the form of a written parliamentary statement which gave no further details.
Although the consultation closed on 10 January, it continues to be the subject of heated commentary and, in effect, lobbying as the government considers the responses. Moreover, thanks to a claim by Hacked Off and the publisher Byline seeking judicial review of the decision to hold the consultation in the first place, any decision on the consultation will be postponed pending conclusion of the legal process, according to another report in the Press Gazette.
You can read the background to the consultation in a piece I wrote for the Transparency Project blog, Press regulation: what are we waiting for now?
In essence, the Secretary of State for Culture, Media and Sport, Karen Bradley MP, decided that instead of the government doing what it said it would do (ie implement s 40 as soon the conditions in s 40(6) were fulfilled, ie there was in existence an approved Leveson-compliant regulator; and continue the Leveson 2 once all the criminal proceedings which it might prejudice were out of the way, which they now are), it would “take stock” by issuing a public consultation.
In the event, the “public” nature of this consultation must be open to doubt. Interested parties, such as the big newspaper groups on the one hand, and Hacked Off on the other, each sought to fill the Culture Secretary’s mailbox with sackloads of “tick-box pro-formas” (in the words of Amber Melville-Brown, on Inforrm’s blog, in Who wants to be a regulator? Newspapers and Section 40).
The big newspapers don’t want Leveson 2 and are contending that it is no longer necessary because, they say, the press has learned its lesson and has a new regulator, IPSO, which is Doing a Good Job. Section 40 is, they say, too draconian and will kill off the regional press, unless they all sign up to the approved regulator (IMPRESS) which is funded by a charity set up by Max Mosley (who sued the papers and won) and isn’t sufficiently independent of the government which the press seek to hold to account.
The supporters of IMPRESS deny that it is in the pocket of the government, or of Max Mosley for that matter; and contend that IPSO is funded by the newspapers themselves and is hardly independent despite its name (Independent Press Standards Organisation).
Among those supporting IMPRESS is the National Union of Journalists (NUJ), who also favour resuming the Leveson inquiry. However the NUJ does not support draconian costs-shifting in s 40, in effect wanting the carrot of a cap on damages for those who sign up to an approved regulator, but not the stick of paying costs even if you win for those who don’t sign up. (Press Gazette: NUJ backs partial enactment of Section 40 with carrots for Impress members but no sticks for rest.)
- A lot of posts on the subject have appeared on or been reposted by Inforrm’s blog, including (in six posts by Brian Cathcart) the very detailed response by Hacked Off.
- There are also some posts on the LSE Media Policy Project blog, including Martin Moore on The Risks of Abandoning Leveson
- and Steven Barnett on Press regulation: three reasons why a 30 year old campaign must continue
- For a pro-press point of view, see the Press Gazette, article by Dominic Ponsford: Government allows digital giants to publish with impunity while proposing to regulate newspapers out of existence
Law (and injustice) from around the world
New president sworn in
The controversial “professional McKenzie president” (Scottish business owner and New York hotelier) Donald J Trump was sworn into office Friday, despite both the weather and various protest groups raining on his parade. Within a hours, in what is being described by some as a “digital purge” (while others say is normal archiving practice), the White House website had been edited to remove pages dealing with climate change, LGBT issues and the Civil Rights movement, replacing them with stuff about law enforcement and Trump’s “America First” energy policy, according to The Independent and Teen Vogue.
But the internet remembers everything, somewhere, so these digital palimpsests (like the swamping of real news with fake) will not be as effective as the old Soviet practice of airbrushing famous photos. Never mind, the whole election process turns out to have been an act of erasure, of sweeping repeal and vindictive amendment. Yes it’s all gonna change round here.
Whether the headrush will survive the procedural checks and balances on Capitol Hill remains to be seen. For a self-talked-up businessman like Trump, “checks” and “balances” are banking rather than constitutional terms, so he may get a rude awakening once his pet projects become enmired in committee hearings and pork barrel favor-trading.
I rather liked Marina Hyde’s observation in the Guardian that “Obama’s airborne departure had shades of the last helicopter out of Saigon… “
I watched Channel 4 News devote the entire hour of their Friday programme to the inauguration, which was a good deal more than enough.
Read the new president’s Inaugural Speech.
Elected president may finally take office
In December last year they held an election in Gambia and the clear winner was a man named Adama Barrow. However, the existing president, Yahya Jammeh, who has ruled the country for 22 years, having once vowed to do so for “a billion years”, has been refusing for some weeks to step down. In the meantime, Jammeh was inaugurated at a ceremony at Gambia’s embassy in Dakar in neighbouring Senegal on Thursday, reports Al Jazeera.
Now it seems Jammeh has agreed to step aside, in the face of diplomatic pressure after West African troops entered the country to help restore order, and to let the real winner take over the government of the country. During the uncertainty since 1 December, some 26,000 people had left the country fearing the chaos and unrest the standoff might engender. The New York Times, writing last week, noted that
He [Jammeh] has overseen a legacy of human rights abuses, including imprisoning opponents and declaring that gay people should be beheaded. He has claimed to have the ability to cure AIDS with little more than an herbal concoction.
Mr. Barrow, by contrast, is an unassuming real estate agent who fell into the candidate’s position after Mr. Jammeh jailed other opposition party members.”
Constitutional court sanctions non-enforcement of Strasbourg award
The Russian constitutional court in St Petersburg has allowed Russia not to pay €1.9bn compensation awarded to former Yukos shareholders by the European Court of Human Rights (ECHR), on the basis that the award was in breach of the constitution. The chairman of the Constitutional Court, Valery Zorkin said Russia was free to deviate from its obligations if that was the only way to avoid violating the constitution, according to the Russian Legal Information Agency (RAPSI).
At the end of 2015, Russia’s Constitutional Court was granted the right to recognize decisions of international courts, including Strasbourg-based European Court of Human Rights, as non-executable. The legislation was developed taking into account the respective Constitutional Court’s ruling establishing that each case of the ECHR decision implementation should be reviewed individually and these decisions should be executed only on the principle of supremacy of the Russian Constitution.
Arguably, such an approach might be attractive to someone like Theresa May, who as Home Secretary found herself at loggerheads with the Strasbourg court and is not alone among UK politicians in wishing to water down the implementability of its determinations.
For a helpful explainer of the background and significance of this ruling, see RightsInfo, Russia’s Top Court Decided To Ignore A Huge Human Rights Judgment
New referendum shock
It is tempting, along the lines of Passport to Pimlico, to begin to think of Surrey, one of England’s so-called Home Counties, as a separate jurisdiction, with some sort of UDI in the offing.
UDI stands for Unilateral Declaration of Independence, and is a bit like what May & Co are hoping to achieve vis-à-vis Europe. Well, Surrey has caught a sniff of revolution in the air and is channelling it in the form of a revolt by its County Council (conservative to the core, historically — reader, I grew up there) (Woking, actually) against the punishing regime of cuts in social care budgets. According to GetSurrey:
Council leader David Hodge said it the rise would help plug a huge funding hole and blamed rising demand for adult social care, learning disabilities and children’s services, on top of central government cuts.
The Conservative said: “So I regret, despite us finding £450m worth of savings from our annual budget, we have no choice but to propose this increase in council tax.
A referendum would have to be held to push through such a large increase and it is likely it would coincide with the county council elections in May.”
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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