Weekly Notes: legal news from ICLR — 25 April 2017

Posted on 25th Apr 2017 in Weekly Notes

We mark the end of the Easter law vacation and the start of the new term with an update of legal news and commentary including the British and French elections, the fate of pending legislation, legal services regulation and a fatal ruling from SCOTUS.


The fate — and fatality — of bills

Theresa May’s spectacular u-turn on her earlier oft-repeated declaration that, as Prime Minister, she would not be calling an early election may have fatal consequences for some of the legislation currently awaiting enactment.

The most spectacular victim would appear to be the Prisons and Courts Bill 2017, which among other things was designed to usher in the new digital courts, offering online justice open to public scrutiny via viewing booths in public buildings, and a raft of other digital innovations. The Bill also provided for prisons reform, and made controversial changes to personal injury litigation and to the treatment of domestic violence victims in court. According to the Law Society Gazette, “MPs on the bill committee [on 20 April] voted unanimously to scrap the legislation.” So it’s back to the drafting board. 

Predictions (eg by Joshua Rozenberg QC) that the Lord Chancellor who sponsored the Bill may also find herself taken off the record when, as expected, the Conservative government returns to power, have not exactly been greeted with incredulity.

In relation to other pending legislation, which may or may not be preserved during the “wash-up” period between now and the dissolution of parliament, the Solicitors Journal reports that

Elsewhere, the Criminal Finances Bill looks set to be pushed through, while the Children and Social Work Bill requires royal assent during wash-up to survive dissolution.

For a roundup of other pending Bills and their likely fate, see BBC, General election 2017: What will happen to proposed laws?

There’s also a handy little explanatory Gif in this tweet from the House of Commons.

The big question that remains is the long-promised and long-delayed British Bill of Rights, which does not appear even to have reached a first draft, and whatever has been jotted down so far seems to have been filed for now in the bottom drawer of some Cabinet filing cabinet.

RIP the Fixed Term Parliaments Act?

Is the FTPA now an ex-parrot? Has it shuffled off its pythonesque mortal coil and gone to join the Choir Invisibule?

One MP seemed to think so. Nadine Dorries MP appeared to suggest that, by passing a motion (unfortunate wording perhaps) in accordance with the terms of the Act, Parliament had actually repealed it. She tweeted as follows:

The tweet was eventually deleted but not before it had been preserved and challenged (to put it midly) in a tweet by The Secret Barrister, who was one of many to criticise the MP’s ignorance of the effect of the vote. (See Huffington Post: Nadine Dorries Deletes Tweet After Being Accused Of Not Knowing What She Voted For.)

To be fair, she is far from alone among MPs in lacking the knowledge a legislator ought to have about the meaning and effect of legislation which they’re supposed to scrutinise. For example, former European Court of Justice judge Sir David Edward recently complained about the “invincible ignorance” of the Brexiteer politicians who claim to be able to free the UK from having to comply with rulings of the European Court of Justice even if it continues to trade with EU member states.

You can escape the jurisdiction of the ECJ, but you have got to comply with EU standards if you are going to export into the EU,” he told The Independent.”

The Fixed-term Parliaments Act 2011 has not been repealed, and indeed it already provides (under section 2) for parliaments to end before their fixed term, either in response to a motion of no-confidence against the government of the day, or on the passing of a motion to hold an early election supported by a majority of more than 2/3 of the number of seats in the House of Commons. (The House of Lords is not involved.) The vote in the Commons on 19 April 2017 was carried by 522 to 13 — a majority of 509.

To continue the metaphor with which we began, the FTPA is not a dead parrot, or duck (dead in the water, as it were) but, rather, a canary in the constitutional mine. It is there to help us detect the poison in the atmosphere.



Why the u-turn, Mrs May?

The clear mandate for Brexit, based on a narrow majority of 52 to 48 of those who could and did vote, has been drummed into us for almost a year. Moreover, the Brexit for which a mandate is said to have been obtained, despite the narrowness of the margin by which it was won, is maintained to be the most extreme and destructive of the status quo.

Though some remainers would like to reverse it, and many more to put it to a second referendum, there are others who simply want to limit the damage to the UK economy and society. Among them are those who have sought (eg through the law courts) to ensure that the correct procedures are followed in accordance with the UK’s own constitution and the existing laws made by its sovereign parliament.

No doubt some of this has made the government nervous. But there are suggestions that the opposition to Brexit and the government’s nervousness at the negotiating tables in Europe are not the real reason for May’s decision to call for the battery-charging boost of an election. Rather, it is either

  • (a) for party-political reasons, to boost her currently modest majority and extend the parliamentary term during which it remains available, or
  • (b) to distract and deflect the risk to that modest majority of a number of investigations currently in progress by the Electoral Commission into allegations that her party broke the rules on election expenses in a number of constituencies where, if the sitting MP were found to have been elected unfairly, there might have to be a by-election. (See, for example, The Guardian, Sturgeon claims May called snap election because of fears over expenses.)

The party has already been fined £70,000 by the Commission for breaches of the  Political Parties, Elections and Referendums Act 2000.

To the existing investigations into the 2015 election, apparently there are now also investigations into the election expenses incurred in relation to the EU Referendum last year. The Independent reported that Electoral Commission launches investigation into Leave.EU referendum finances, saying the ” there were reasonable grounds to suspect that potential offences under the law may have occurred.” If the fairness of the referendum result were called into question, that really would put the remainer cat amongst the Brexit pigeons.

Do what’s best for Britain

Among the un-leavers, the most famous must be Gina Miller, who commenced (with others) the proceedings against the Secretary of State for Exiting the European Union in which the Supreme Court eventually ruled that only Parliament could approve the UK’s triggering of article 50 notification of intention to leave the European Union. She has now entered the electoral battlefield, not as a candidate, but with a campaign to use tactical voting to help prevent a ‘Hard Brexit’. Her crowdfunding page urges voters to “Do what’s best for Britain!” by supporting “candidates who campaign for a real final vote on Brexit, including rejecting any deal that leaves Britain worse off”. In an interview reported by Business Insider, she explained:

We will be asking MPs to pledge to keep an open mind and not be bullied into giving the next government a blank cheque for the final deal.”

At the time of writing, the crowdfunding site had already raised £294,995 of its £300,000 goal.

Meanwhile, in Dublin, Jolyon Maugham QC’s Good Law Project, also funded by donations, has brought proceedings in which it seeks a reference to the ECJ of four questions relating to Brexit. You can read the latest update here.


Legal services

Regulation — or the lack thereof

On 20 April the Legal Ombudsman (theme tune “Maybe I’m a LeO” by Deep Purple) published its Strategy and Business Plan 2017-2020. Launching the document, Wanda Goldwag, Chair of the Office for Legal Complaints, said “Our vision is that the Legal Ombudsman should be recognised for the excellence of its impartial service.”

The document recognises the Legal Services Board’s anxiety that “The current regulatory framework is not properly risk-based with some high-risk activities falling beyond the reach of regulation.” The most obvious example of that is fee-charging McKenzie Friends, complaints against whom LeO does not currently handle, no doubt because they do not form part of any regulated profession, though the LSB (which regulates all the different legal services regulators) appears to tolerate and even encourage them as a solution to “unmet need” for legal services for which the government has ceased to provide public funding.

Reading the document it’s hard not to agree with former Law Society president Nick Fluck, that LeO had “swallowed a beginners guide to management.” The document talks of “leveraging our insight and intelligence to benefit stakeholders” and says “We should seek to influence first tier complaint handling to better understand and reduce the causes of complaints and improve signposting to LeO.”

Whilst on the topic of regulation or the lack thereof, Legal Futures reported last week that

‘Professional’ paid McKenzie Friends associated with fathers’ rights groups (FRGs) play on their “uncertainty and sense of victimhood” to attract business, academic research has found, saying that there needed to be a code of conduct and a greater role for law school clinics in their place. […] McKenzie Friends were also accused of appealing to “familiar stereotypes, such as caricatures of the biased family court and self-interested adversarial lawyers.”

Law (and injustice) from around the world


New SCOTUS justice backs Arkansas death penalty programme

Neil Gorsuch, the justice nominated by President Trump for the US Supreme Court, joined his four fellow Republican appointees — Chief Justice John Roberts and Justices Clarence Thomas, Anthony Kennedy and Samuel Alito — in a majority ruling on 20 April, denying a stay of execution for Ledell Lee, an Arkansas man who was sentenced to death in 1995 for murdering a woman named Debra Reese with a tyre iron. The execution was duly performed.

The case of Lee was one of a number in which Arkansas had wanted to carry out executions in a hasty rush before the lethal drugs used themselves expired. Earlier, the drug company that supplied the lethal drugs had sought to block the executions: see BBC, Multiple Arkansas executions blocked by judge 

But these objections appear to have been overruled – without a reasoned judgment having been given by the majority — in last Thursday’s SCOTUS ruling. A minority opinion was expressed by Justice Breyer.

See, for more detail: New York Times,  Neil Gorsuch and the State’s Power to Kill.



Presidential election yields stark choice

The first round in the French presidential elections narrowed the candidates from five down to the two with the largest share, Marine Le Pen, of the National Front, with 21.4% and Emmanuel Macron, of the new (barely a year old) party En Marche, with 23.9%. The other candidates were centre-right François Fillon and hard-left Jean-Luc Mélenchon, and Benoit Hamon, the candidate of current President Hollande’s Socialist Party.

Macron is said to remain the favourite, with his positive centrist pro-EU approach contrasting starkly with the negative message of the National Front. According to Prospect magazine (Macron: message of hope, product of despair), “The new face of French politics is a symptom of France’s problems, not a solution to them.”  According to the Atlantic, The French Election Is Macron’s to Lose.

Perhaps recognising and addressing that, within a day of the first round result Le Pen announced that she would step aside from her party in order to promote herself as a presidential candidate in the interests of France as a whole: see BBC, France elections: Le Pen steps aside as National Front leader. This appears to mark a stepping away, also, from the legacy her own father, Jean-Marie Le Pen, having used his party machine to gain power.

According to Vox, Marine Le Pen is ” trying to bring American-style identity politics to France”. She resembles Trump in her isolationistic nationalism and her distrust of Muslims. Vox opines:

Le Pen’s message is in many ways reminiscent of that of other far-right populists in Europe: She wants to pull France out of the European Union, NATO, and the euro common currency market. She wants to close the French borders to immigration — legal as well as undocumented — and direct the bulk of government-funded welfare programs (including schools and medical treatment) toward French citizens.

In short, according to the title of Vox’s piece, Marine Le Pen is trying to win the French elections with a subtler kind of xenophobia.

What all this might have to do with the Daily Mail’s over-excited headline “The new French revolution” is anyone’s guess, but according to Business Insider some people were pretty rude about it.


Hong Kong

Beijing rejects democracy

Now is not the time for more democracy in Hong Kong, according to the mainland Chinese government in Beijing. Pro-democracy movements in the Middle East have only led to civil wars and refugee crises, said Wang Zhenmin, the legal head of Beijing’s liaison office in the city, as reported in the South China Morning Post.

To which the obvious rejoinder might be, well, they would say that, wouldn’t they? Hong Kong was the scene of massive but peaceful “yellow umbrella” protests in 2014 (as reported here, eg in Weekly Notes – 15 December 2014) by pro-democracy demonstrators (and those seeking simply to compel adherence to the Basic Law) had occupied the streets to draw attention to the failure to allow genuine candidates to stand for election to lead the Legislative Council which governs Hong Kong.



British-Iranian woman’s detention affirmed

Nazanin Zaghari-Ratcliffe was given a five-year jail term in September 2016 for participating in anti-regime protests in 2009. She was arrested at Tehran airport on April 3, 2016, after visiting family in Iran with her British-born daughter Gabriella. France24 reports that after losing an initial appeal in January, Iran’s Supreme Court upheld her sentence and Zaghari-Ratcliffe’s family said they have been told there are no further legal avenues.

Britain’s foreign ministry said it was “deeply concerned” by reports the Supreme Court had upheld the sentence and said Prime Minister Theresa May and Foreign Minister Boris Johnson had raised the case with their Iranian counterparts.



Referendum result reinforces Erdogan’s rule

Despite widespread accusations of electoral misconduct, the Turkish referendum on constitutional amendments aimed at boosting powers for president Erdogan, resulted in a “yes” vote. Ergogan has been consolidating his hold on power following last year’s disastrous failed coup, following which huge numbers of judges, civil servants, teachers and others have been rounded up in a crackdown on opposition.

The Turkish election board has rejected calls to annul referendum result, according to the Guardian.


Tweet of the week…

from Jack Blanchard, political editor of the Mirror, reflecting on an uncharacteristically self-aware announcement from the tabloid that likes to attack the judges ad hominem.

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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