A number of government ministers were observed doing the “Downing Street Shuffle” as they went in and out of No 10 to be told good news or bad by the Prime Minister, as he sought to improve his hand in the next round of government. As to who might be the jokers in the new pack, and who the aces or knaves, readers may have their own ideas. Suffice it to record that in the legal department, Boris Johnson has chosen to stick with his Lord Chancellor, Robert Buckland QC MP, but to twist for his Attorney General, bidding farewell to Geoffrey Cox QC MP and taking Suella Braverman MP in his stead.
According her office’s website, Braverman (formerly Fernandes) appears well qualified, having read law at Cambridge, gained a Masters from the University of Paris 1, Pantheon-Sorbonne and qualified as a New York Attorney. Called to the Bar in 2005, she specialised in public law and judicial review and was on the Treasury Counsel Panel from 2010–2015. She defended the Home Office in immigration cases, the Parole Board in challenges by prisoners and the Ministry of Defence in matters relating to injuries sustained in battle. She was elected as the Conservative MP for Fareham in May 2015, and served as Parliamentary Under Secretary of State at the Department for Exiting the European Union from January to November 2018.
Though she may not be aware of this, by virtue of her office, she is also an ex-officio Council Member of the Incorporated Council of Law Reporting for England and Wales (ICLR) and will be invited to attend its Annual General Meeting to hear all about our exciting plans for the future.
Braverman has caused anxiety among public lawyers by expressing the view, in an article on Conservative Home, that the scope of judicial review needs to be curtailed, the “steady encroachment by the judges” reversed, and, in short, that Parliament should “take back control” from the courts. She is quite clear about what she thinks is wrong:
“Questions that fell hitherto exclusively within the prerogative of elected Ministers have yielded to judicial activism: foreign policy, conduct of our armed forces abroad, application of international treaties and, of course, the decision to prorogue Parliament. Judicial review has exploded since the 1960s so that even the most intricate relations between the state and individual can be questioned by judges.”
As foretold in the Conservative Manifesto‘s now famous page 48, and in the Queen’s Speech, the government plans to set up a Constitution, Democracy & Rights Commission which, the Financial Times reported last week, will be overseen by Michael Gove, as Head of the Cabinet Office, “who will work alongside justice secretary Robert Buckland and Suella Braverman”. The article goes on:
“’They will be setting the terms of reference — the essay questions — for the independent review,’ said one government official. An independent individual will formally lead the commission with Lord Sumption, a former Supreme Court judge, tipped by officials to head up the review.”
That should prove interesting. Sumption’s views on the intrusion of the courts into areas of policy properly left to Parliament were widely reported when he expressed them in last year’s Reith Lectures series. But in a recent article in The Times he disavowed some of the more extreme anti-curial rhetoric that has been aired on this topic: “Sometimes, when passions rise, it is because both sides are putting their case too high. Both sides of this dispute are indiscriminate.” This suggests that he might be more dispassionate, as a chairman, than his critics have suggested. We shall see.
The rest of the justice crew
Other new justice appointments are Kit Malthouse MP, Minister of State for the Home Office, who becomes Minister of State for Crime, Policing and the Fire Service; Alex Chalk MP, who becomes Parliamentary Under Secretary of State in the Ministry of Justice and Assistant Government Whip; and Chris Philp MP, who was previously Parliamentary Under Secretary of State at the Ministry of Justice but now adds Parliamentary Under Secretary of State in the Home Office to his brief.
The Solicitor General, Michael Ellis QC MP, remains in post, as do Lucy Frazer QC MP as Minister of State for Prisons and Probation, and Lord Keen of Elie QC as Advocate General for Scotland and MoJ spokesperson for the Lords.
Given the overlapping roles some of these junior ministers play, being ministers in other departments as well, it is clear that Boris Johnson, or those advising him, believe in a more joined up approach to government. At least that’s what may be hoped, and that the intention is not simply to skewer the various departments on the same brochette.
Before the cabinet reshuffle, the then Secretary of State for Digital, Culture, Media and Sport, Baroness Nicky Morgan, announced that the broadcasting regulator Ofcom would have its role enlarged to cover internet platforms. According to the DCMS announcement,
“The regulator will play a key role in enforcing a statutory duty of care to protect users from harmful and illegal terrorist and child abuse content. It is another step towards achieving the government’s pledge to make the UK the safest place in the world to be online.”
The change would be one of a number of measures included in new legislation outlined in the Government’s response to the Online Harms White Paper. This explained that
“the regulatory framework should apply to companies that allow users to share or discover user-generated content or interact with each other online. … These services are offered by a very wide range of companies of all sizes, including social media platforms, file hosting sites, public discussion forums, messaging services and search engines.”
The Columbia Journalism Review suggests the proposed legislation is
“conceptually at least … similar to Germany’s so-called NetzDG law, which came into effect in 2018 (the law’s formal name is the Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken). That law gives German authorities the ability to levy fines of up to $60 million per infraction against digital networks — or in fact any online service with more than 2 million users — if they fail to remove illegal or offensive content within 24 hours of being notified about it”.
Commenting on Inforrm’s blog, Cathryn Hopkins and Dan Tench point out that the white paper remains vague about what companies will be covered by the regulation and on matters of jurisdiction — whether it is only businesses registered in the UK that will be caught within the regulator’s scope for the purposes of Online Harms regulations, or whether businesses elsewhere that offer services to individuals in the UK will also be caught. All that will need to be clarified in any legislation, of which we have not yet seen a draft.
The new legislation will now be the responsibility of Morgan’s successor as Culture Secretary, Oliver Dowden CBE MP, appointed in last week’s reshuffle.
- Inforrm’s blog, Online Harms White Paper: The Government’s Initial Consultation Response — Cathryn Hopkins and Dan Tench
- Guardian, Ofcom to be given role of policing online platforms
- Parliament, Online Harms Reduction Regulator (Report) Bill [HL] 2019–20 (this is not the main legislation)
Lammy Review update
More than two years after publication of the original Lammy Review report, the Lord Chancellor Robert Buckland introduces his department’s 2020 Update by saying:
“David Lammy MP’s 2017 review shone an essential light on disparity in the treatment of, and outcomes for, Black Asian and Minority Ethnic (BAME) people. Two years on from Government’s first response to the review, I am proud to set out in this report a comprehensive programme of work designed to address inequalities right across the board. […]
“For example, in Youth Justice we are providing tools to help frontline services better understand and address the needs of BAME children, working with the Magistrates Association to build awareness of disproportionality, and helped to secure £1m in funding to harness the power of sport to improve outcomes for BAME children at risk of entering the system. In prisons we are improving how we handle complaints, the use of force, and the system of incentives.”
The original report was comprehensive and detailed. Its 35 recommendations included more consistent and rigorous collection of data on ethnicity; ‘race-blind’ prosecution decisions; ‘deferred prosecutions’ to help keep adults and youths out of the criminal justice system where possible; publication of sentencing decisions to boost transparency; collection of feedback on how judges conduct cases; more supportive recruitment of judiciary to boost diversity; targets for this and for recruitment of BAME staff into leadership roles in the prison service; and the ‘sealing’ of criminal records in appropriate cases to promote rehabilitation of offenders.
At first, it looked as though not much was going to happen (see The Lammy Review: a year on, where have we got to?) There was an initial government response in December 2017, but it was essentially saying “thanks, we are having a look at this, we’ll get back to you anon”. There was then a more comprehensive response the following year, in October 2018. This second update does seem to have been done thoroughly and conscientiously. In an appendix it tackles each of the 35 original recommendations and explains what has happened. In some cases not much has happened, with lack of resources being a common excuse. Not everyone will be happy with this somewhat mixed progress. But there’s enough here to indicate that the MOJ has engaged with it and as Buckland points out, perhaps a little blandly,
“Making progress on racial disparity in the Criminal Justice System requires challenge to accepted norms right across the system and it will therefore take time.”
Update: this item was amended on 20 February to include the October 2018 response.
See also: Russell Webster, How Far Has The MoJ Got In Implementing Lammy?
Coronavirus enforcement powers
With commendable speed, the Health Protection (Coronavirus) Regulations 2020 were enacted at 6.50am last Monday and laid before Parliament by 2.30 that very afternoon. The announcement from the Department of Health and Social Care stated:
“In accordance with Regulation 3, the Secretary of State declares that the incidence or transmission of novel Coronavirus constitutes a serious and imminent threat to public health, and the measures outlined in these regulations are considered as an effective means of delaying or preventing further transmission of the virus.
In accordance with Regulation 2, the Secretary of State designates Arrowe Park Hospital and Kents Hill Park as an ‘isolation’ facility and Wuhan and Hubei province as an ‘infected area’.”
As Jim Duffy commented on the UK Human Rights Blog, “if the new high speed trains move as swiftly as the Health Secretary did on Monday, then they might break the sound barrier”. But Duffy questioned whether, in making them (under powers conferred by the Public Health (Control of Disease) Act 1984) the government may have exceeded its powers. If the statutory instrument in question is ultra vires, then it is unlawful and of no effect, he points out, citing Boddington v British Transport Police  2 AC 143 which was the subject of a recent post on the ICLR blog by David Burrows.
On the same day as the Health Secretary issued his regulations, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and the Ministry of Justice of the People’s Republic of China issued new guidelines on the criminal consequences of intentionally spreading the novel coronavirus or harming medical workers during the epidemic.
“The guideline stipulates that people confirmed to be carrying the virus could be charged with endangering public security by dangerous methods if they refuse to be quarantined or leave before their quarantine time is up and enter public places or take public transportation.”
It’s not just those confirmed as having the virus who could be liable. The announcement goes on to say that “If those suspected of carrying the infection exhibit such behavior, and their behavior leads to the spread of the virus, they could also face similar charges…” As you’d expect, the punishments are severe:
“Under the Chinese Criminal Law, those convicted will face jail terms ranging from three to 10 years if the consequence is not serious. If their behavior causes serious injury or death or results in a great economic loss of public property, those convicted will face more than 10 years imprisonment, a life sentence or even death.”
Online court booster
Interestingly, the Supreme Court has also responded to the outbreak in a more positive way by promoting the use of online courts and remote hearing technology to avoid the need for face-to-face hearings. In a recent news update (Courts make use of online platforms amid epidemic), it said:
“Considering that the epidemic may last for some time, the Supreme People’s Court, the country’s top court, ordered courts at all levels to guide litigants to file cases or mediate disputes online, encouraging judges to make full use of online systems for litigation, including those for case filing and ruling delivery, to ensure litigants and their lawyers get better legal services and protection.”
Given that China has managed to build a complete new hospital in a week, it seems not impossible for it to construct an online court system in the same sort of time frame, which might put the HMCTS version over here to shame. (But then, it would probably be using Huawei technology and we can’t have that.)
Public Law Project: EU citizens’ rights in the ‘transition period’: What does the law say?
European Law Blog: The UK/EU partnership and human rights: battle-lines and paradoxes
On family law:
Pink Tape: Transfixed by transcripts (about the changes in the procedure rules about transcripts due to take effect in April)
Transparency Project: The President’s Call For Evidence — First Thoughts (is he asking the right questions?)
Dates and Deadlines
Cross-border conference 2020 – the New International Landscape
Law Society, Chancery Lane London – 6 March 2020, 09:00 to 17:00
The full-day programme comprises expert speakers from various jurisdictions working within the private client cross border world. Property, planning, trusts, tax and Brexit will all feature on a menu introduced by Mishcon de Reya partner Filippo Noseda.
Booking details via Law Society.
Pre-application judicial education programme (PAJE)
Application closing date Monday 9 March, 23:59 pm
The Pre-Application Judicial Education (PAJE) programme is a judge-led workshop series and resources designed to give you direct insight into the skills involved in becoming a judge.
PAJE has been developed by the Judicial Diversity Forum to support lawyers from groups under-represented in the judiciary from BAME lawyers, women lawyers, and all lawyers with disabilities are prioritised in the selection process.
The workshop series is primarily a course in judgecraft, rather than in completing the application. By the end of the course participants will have a deeper understanding of the work of a judge, and the qualities sought in judicial applicants.
Click for more details.
Time to get it right: The state of youth court in England and Wales.
Crowne Plaza London, King’s Cross — Wed, 25 March 2020, 13:00–15:30
The Centre for Justice Innovation and the Institute for Crime & Justice Policy Research will launch the final report of their research project, which explores the state of existing practice in youth courts to assess how well they are functioning to meet the needs of children and young people.
The event will be chaired by Lord Carlile and will include discussion of the key findings from the report and its policy implications, along with panel discussion with key national figures.
Click for booking details.
Tweet of the Week
Babes in the wig, by proud barristerial mum Jessica Ward:
— Jessica Ward (@Jessica21818528) February 15, 2020
That’s it for this week. Thanks for reading, and thanks for the tweets and blogs and links to content from which this post was derived.
This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.