Reshuffle / réchauffé
Another new legal year… another new Lord Chancellor … Out goes Robert Buckland QC, rejoining the back benches like some leftovers put in the fridge. In comes Dominic Raab, fresh from the sea (which was closed) and a holiday interrupted by the Afghanistan crisis. The Foreign Office’s loss will be the Ministry of Justice’s gain, though it will have to share him with the Prime Minister’s office where he will deputise if Boris Johnson is indisposed or incapacitated (as he was, for example, last year when he caught coronavirus). Other MOJ appointments include barrister Alex Chalk MP who becomes Solicitor General, and the return of Suella Braverman QC MP to the post of Attorney General following her temporary absence on maternity leave.
Unlike some of his predecessors, Raab is a lawyer, trained as a solicitor, and has strong views about human rights. He has even published a book about them: The Assault on Liberty — What Went Wrong with Rights (Harper Collins, 2009). Though this was written at a time when the Labour government that had enacted the Human Rights Act 1998 was still in power, it has prompted fears that Raab will support attempts already foreshadowed in the 2019 Conservative manifesto, and urged by a number of even more rabid backbenchers, to amend or even repeal the 1998 Act and replace it with a less powerful instrument. Last year the government launched an Independent Human Rights Act Review but it has yet to deliver its report (expected at the end of this month).
- David Allen Green, Law and Policy blog: How significant would the repeal of Human Rights Act really be?
- Joshua Rozenberg, A Lawyer Writes: A British bill of rights?
On the credit side, Raab appears to have been a prime mover behind this country’s Magnitsky Law regime — the imposition of financial and other sanctions on designated foreign individuals and organisations involved in egregious human rights violations. Adopted in a number of countries, the regime is named after auditor Sergei Magnitsky, who uncovered widespread Russian corruption by a group of Russian tax and police officials, for which he was wrongfully arrested, imprisoned, tortured and killed. Measures taken have targeted individuals in Saudi Arabia, Russia, Myanmar and North Korea. Although Raab issued designations in his capacity as Foreign Secretary, he originally proposed the legislation as a back-bencher, and presumably could still issue further designations in his new capacity as Secretary of State for Justice.
For other indications of his policy priorities, see Dominic Raab’s Speech at the Opening of the Legal Year 2021
It is an honour and a privilege to be sworn in as Lord Chancellor today.
I will uphold the rule of law & defend the independence of the judiciary.
I aim to increase court capacity, create a prison system that rehabilitates, cut re-offending & boost support for victims. pic.twitter.com/nKnlTsWLlh
— Dominic Raab (@DominicRaab) September 23, 2021
Whatever his merits on matters of policy, questions have been raised about Raab’s sartorial suitability for the august role he now occupies after he appears to have eschewed the traditional wing collar when donning the elaborate robes of office for his, as it were, investiture last month (see tweet). Joshua Rozenberg has more: Never keep the court waiting — Did Dominic Raab get his jabot in a twist yesterday?
See also, from Rozenberg, a fond-ish farewell to Buckland and fairly generous assessment of his time in office: Hail and farewell
Still struggling with the backlog
Last month HM Courts and Tribunals Service announced that it was opening a new Nightingale court at the Monument, in the City of London. Given that HMCTS has recently closed down a perfectly serviceable Crown Court not far away, at Blackfriars, in the City of London, the announcement seemed a perfect illustration of how the mounting backlog and crisis in the criminal courts is due to rather more than a temporary shortfall in available courtroom space owing to the lockdown. (Other shortages not entirely blameable on the pandemic include lack of judges, lack of legal aid and, now, lack of even barristers.)
The temporary London court is not the only “new” court, though; earlier in the month HMCTS announced the opening of a “Super courtroom” in Manchester. As with “new” hospitals from this government, the court is not actually a new one: it’s just been reconfigured to accommodate a courtroom “three times the size of a usual courtroom” and specially adapted to deal with large, multi-hander cases of up to 12 defendants, “which usually involve gang-related crime such as county lines drug trafficking, murders, and money laundering”. Courts Minister, Lord Wolfson QC, said: “This super courtroom is just the latest step in our efforts to tackle the impact of the pandemic on our justice system.” Up to a point, Lord Wolfson. There was already a massive backlog before the pandemic came along.
For more on the courts backlog, see:
- Gazette, Opening pop-up courts in the shadow of a closed one
- The Times, Crown court backlog fuelled by a shortage of legal aid barristers
- The Economist: Britain’s courts are in a mess — Covid-19 has made a bad situation much worse
- House of Lord Select Committee on the Constitution (22nd Report of Session 2019–21 HL Paper 257): COVID-19 and the Courts
- The Voice: ‘Racism already creates a backlog’: The impact of the courts’ case backlog for black victims of domestic abuse, black barristers and others
- Crest Advisory: Clearing backlogs in the courts: are there enough lawyers, judges and court staff to do it?
- Criminal Bar Association: Monday Message 13.09.21
New post-GDPR data regime
The government announced last month that it planned to usher in a new data regime to reflect its post-Brexit priorities. Oliver Dowden MP (who has since been replaced as Secretary of State for Digital, Culture, Media and Sport (DCMS) by MP and popular novelist Nadine Dorries), said:
“Now that we have left the EU, we have the freedom to create a bold new data regime: one that unleashes data’s power across the economy and society for the benefit of British citizens and British businesses whilst maintaining high standards of data protection.”
They are promising reforms “to create an ambitious, pro-growth and innovation-friendly data protection regime that underpins the trustworthy use of data” with “agile and adaptable data protection laws” that “support vibrant competition and innovation”.
To this end, DCMS have issued a consultation: Data: A new direction
For more on this, see Panopticon: Government reveals plans for post-Brexit data regime
Online Safety Bill
In two posts republished on Inforrm’s blog, Rafe Jennings (1) discusses the mechanics of the proposed bill in detail, and (2) summarises some of the responses from civil society to its proposals.
- Online Safety Bill: Regulating content on user-to user and search service providers
- The Online Safety Bill Part 2: Do these proposals go too far, leading to overzealous policing?
Consultation on Vaccine Passports
The government has invited responses to the detail on the proposed certification regime which could be introduced as part of “Plan B” — the response to the pandemic should the NHS come under unsustainable pressure as a result of its current, more relaxed pandemic regime, COVID-19 Response: Autumn and Winter Plan. Under Plan B, in certain settings:
- mandatory vaccine-only certification could be introduced for all visitors aged 18 or over
- members of the workforce aged 18 or over in these settings could then be required to test regularly, if they are not fully vaccinated
The proposal for mandatory COVID certification in a Plan B scenario sets out further detail on the proposals. Responses to the call for evidence are required as soon as possible (the call was launched on 27 September) and in any event by 11 October 2021.
As we continue through the party conference season, we can expect to hear about “law and order” initiatives both serious (bad cops, violence against women and girls) and not so serious. Sometimes what seems a crowd-pleasing legislative plan often involves little more than flagging up existing powers and offences, and such seems to be the case with the new criminal offence for pet abduction announced over the summer. We were told that a “Pet Theft Taskforce” had delivered its report with recommendations to tackle a worrying rise in pet theft. Several commentators were rather scornful of the idea, as Joshua Rozenberg recorded in a post: What is pet abduction? And why should a pet’s welfare be the law’s focus?
The rise in pet theft is attributable in part to the rise in demand for pets during the lockdown. Another consequence of the lockdown has been a rise in fraud. This has been associated not only with abuse of the various types of financial support available from the government, but also the growing reliance of consumers on online and delivery services. The Financial Times recently reported Online fraud up by a third in the UK during the pandemic and The Guardian that More than £2.3bn lost in a year as scams surge during pandemic.
See also, The Conversation: Coronavirus business loans: some directors may have defrauded billions from UK taxpayers
International Human Rights
One of the groups particularly at risk from the vengeful Taliban are women judges. A number of organisations and groups have schemes in place to help. They include:
- International Association of Women Judges: How You Can Support Afghan Women Judges
- Arrested Lawyers Initiative (via GoFundMe): Support Afghan judges, lawyers, women’s activists
- Rosanna Shaw and others (via JustGiving): Emergency Relief & Evacuation Support for Afghans
- Gazette: Lawyers urge UK government to help stranded Afghan judge
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.3:
AGENCY — Commercial agent — Contract: The Software Incubator Ltd v Computer Associates UK Ltd, 16 Sep 2021 (Case C-410/19); EU:C:2021:742;  WLR(D) 488, ECJ
CHILDREN — Medical treatment — Consent: R (Bell) v Tavistock and Portman NHS Foundation Trust, 17 Sep 2021  EWCA Civ 1363;  WLR(D) 490, CA
HUMAN RIGHTS — Breach of Convention rights — Discrimination: R (Crowter) v Secretary of State for Health and Social Care, 23 Sep 2021  EWHC 2536 (Admin);  WLR(D) 495, DC
IMMIGRATION — Immigration rules — Exclusion order: R (FF) v Secretary of State for the Home Department (Prince Nasser Bin Hamad Al Khalifa, interested party), 24 Sep 2021  EWHC 2566 (Admin);  WLR(D) 498, QBD
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.3 includes:
NIPC Law: Patents: A Ward Attachments Ltd v Fabcon Engineering Ltd: A Ward Attachments Ltd v Fabcon Engineering Ltd  EWHC 2145 (IPEC), Ch D
Transparency Project: Bell v Tavistock Court of Appeal Judgment: An Explainer: R (Bell) v Tavistock and Portman NHS Foundation Trust  EWCA Civ 1363, CA
Free Movement: Immigration application made during visa expiry grace period is not “in time”: Secretary of State for the Home Department v Ali  EWCA Civ 1357, CA
RPC Perspectives: KSM Henryk Zeman — Tribunal can consider ‘legitimate expectation’ arguments in VAT appeal: KSM Henryk Zeman SP Z.o.o. v Revenue and Customs Comrs  UKUT 182;  STC 1706, UT (TC)
Transparency Project: Non-resident parents and lack of engagement from the Child Maintenance Service and the Secretary of State: Y v Secretary of State for Works and Pensions (Child Maintenance Service)  EWFC B40, Fam Ct
Nearly Legal: Things! Useful and allowing for schadenfreude: Ashford Borough Council v Wilson  EWHC 2542 (QB), QBD
Mental Capacity Law and Policy: Advance decisions, Jehovah’s Witnesses and what does “doing something clearly inconsistent” with your ADRT mean? In re PW (Jehovah’s Witness: Validity of Advance Decision)  EWCOP 52, Ct of Protection
Recent publications of interest
Why can’t we read Prince Philip’s Will?
In a post on the Transparency Project blog, Paul Magrath comments on the judgment of the President of the Family Division, Sir Andrew McFarlane, in the recent case of In re The Will of His late Royal Highness The Prince Philip, Duke of Edinburgh  EWHC 77 (Fam), in which he ordered that the late Prince’s will should be sealed up for 90 years, in accordance with a century-old royal tradition. Also published on Inforrm’s blog.
Insulate Britain protestors: this injunction will solve nothing. For once a crackdown might be justified
Post by Barristerblogger (Matthew Scott) on the probable futility of the existing approach of Highways England in getting injunctions, even with penal sanctions for breach, against often anonymous protesters blocking major roads to highlight demands for the better insulation of public housing as one way of staving off ecological disaster. (Since the time of writing, the protesters have moved off the M25 and blocked other roads, and Highways England has obtained fresh injunctions to cover them, in what may now turn into a silly game of whack-a-mole.)
Remote trial and error: how COVID-19 changed public access to court proceedings
Article in Journal of Media Law (open access) by Judith Townend (Sussex University) and Paul Magrath (of ICLR) about the open justice implications of the rapid deployment of remote hearings during the lockdown and further development of online courts as part of the courts modernisation programme: “this tumultuous period has highlighted the potential for improved accountability of the justice process, but also unresolved issues around the practical management of public access to courts”.
Joint Enterprise and the Real Impact of Jogee
See also, on this topic, podcast from Tortoise media: Wrong turn — Murder and miscarriage of justice, which focuses on the case of John Crilly, whose appeal was allowed following Jogee, and who went on to study law and play a redemptive role in helping deal with the terrorist attack of Usman Khan at Fishmongers’ Hall in April 2021.
My Transparency Journey
Barrister and blogger Lucy Reed, founder and chair of the Transparency Project, reflects on her growing interest and awareness of the need for greater transparency in the family courts, and the resistance to that from other professionals, in an article in the September issue of Counsel magazine.
Henry VIII powers v Parliament
In another article in Counsel, Barrister Rosalind English, editor of the UK Human Rights Blog and co-presenter of Law Pod UK, explains why there is growing concern over the increased use of Henry VIII clauses (enabling secondary legislation to amend or even repeal primary legislation) — particularly in relation to post-Brexit changes to domesticated EU law and under the Coronavirus Act 2020 — and lack of parliamentary scrutiny of the resulting statutory instruments.
Bringing it all back home: TUPE reform after Brexit
Charles Wynn-Evans on the UK Labour Law blog discusses the likelihood of reforms to the Transfer of Undertakings (Protection of Employment) Regulations 2006 as part of a general overhaul of regulatory legislation following the UK’s withdrawal from the European Union.
Last Post and Cheerio
What appears to be a final post by Obiter J on the Law and Lawyers blog, which has been going since January 2010 and has consistently provided very useful analysis of cases, legislation and other “topical legal matters of general interest”. Recently this has included detailed analysis of Brexit and its constitutional implications, and the Covid-19 lockdown legislation. The blog will remain online but will not be updated after 18 August 2021.
“The amount of time spent in producing blogposts is considerable. Research has to be done, cases and articles read and the posts prepared. The blog has been a great interest to me and, at times, a steep learning curve but I have now decided that the time has come to leave the field to others…”
We will miss it, but we understand.
Dates and Deadlines
JUSTICE Human Rights Conference 2021
Online (live and recorded): 11 — 12 October 2021
Over two days, join JUSTICE for a series of addresses, discussions and debates. Following an opening keynote address and review of the year, you will be able to take part in two break-out sessions, before hearing our closing fireside chat and debate.
Full details via JUSTICE website
Constitutional Law Matters: ‘Who’s in charge of the Westminster Parliament?’
Zoom: Oct 20, 2021 06:00 PM in London
Webinar discussing the balance of power between the Government and Parliament. Can the Government make any law it wishes? Or is it constrained by backbench and opposition MPs? Confirmed speakers include Professor Mark Elliott, University of Cambridge, Professor David Howarth, University of Cambridge and Professor Meg Russell, Constitution Unit, University College London. Booking details via Zoom.
Play: The Shake
MS Teams: Thursday 4 November 2021 at 7 p.m.
Play written by His Honour Judge Stephen Wildblood QC about a young baby who gets shaken and badly injured whilst in the care of her parents. The family portrayed in the play are involved in care proceedings. The play shows the social circumstances, so frequently encountered in criminal and Family proceedings, which lead to this sort of injury.
More details here, via Child Protection Resource.
Legal Futures Innovation Conference
In Person or Online: 16 November 2021, Cavendish Conference Centre, London
Many aspects of legal life have changed in the last 18 months but the need to innovate has not — if anything, it has become more urgent. This year’s conference will reflect that change and discuss alternative business structures and cutting edge developments in the provision of legal services.
Programme details and booking information here.
The Annual Bar and Young Bar Conference 2021
Online: Wednesday 17 — Friday 19 November
Grand Connaught Rooms, London and live streamed online: Saturday 20 November
The theme of this year’s conference is Recovery, growth and transformation. See the Bar Council website for full schedule and booking details, including discounts available for students, pupils, barristers in income bands 1–2 and Bar Representation Fee subscribers.
Of particular interest to us is a session on Saturday, Making headlines: The role of journalism in shaping the justice system, discussing the role of the media and public perceptions of the justice system. Featuring speakers Jonathan Ames, Legal Editor, The Times; Lizzie Dearden, Home Affairs & Security Correspondent, The Independent; Sian Harrison, Law Service Editor, PA Media; Tristan Kirk, Courts Correspondent, Evening Standard.
Tweet of the week
Is a wry comment on the fact that Dominic Raab is now the eighth Lord Chancellor we have had in the last ten years:
In the future, everyone will be Justice Secretary for 15 minutes.
— The Secret Barrister (@BarristerSecret) September 15, 2021
That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Take care now.
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.
Featured image: photo by the author, taken at his favourite cafe by the park.