This week’s roundup of legal news and comment includes recent Brexit words and deeds, a media regulatory reversal, clashes between law and religion, charities, child abuse and the law of property. But first, a cold snap: New Square, Lincoln’s Inn in the recent snow, taken by Barbara Rich, of 5 Stone Buildings.

Brexit

Prime Minister’s Mansion House speech

In a season of Brexit speeches, Theresa May’s on ‘Our Future Partnership’ (with the EU) was supposedly the most important. It came after a weekend of cabinet ADR at Chequers, and was notably conciliatory in tone, even at times quite flannelly. The full text is available on the Conservative party website. It set out her ‘five tests’ or the ‘five foundations that must underpin our trading relationship’ with the EU. These were:

  1. Reciprocal binding commitments to ensure fair and open competition (standard for trade deals)
  2. An arbitration mechanism that is completely independent (ie not the ECJ) to determine any disputes.
  3. An ongoing dialogue with the EU and the means to consult each other (ie open channel of communication)
  4. An arrangement for data protection and the settlement of data protection disputes.
  5. Maintain links between our people (so UK and EU citizens can go on living and working in each other’s countries but subject to controls).

Crucially, she admitted that the deal could not satisfy everyone. But it did not go into a great deal of detail about the things some people might have wanted done differently. It wasn’t Churchill on the beach, defying destiny. It was more like a pep talk from a head teacher:

‘Yes, there will be ups and downs over the months ahead.  As in any negotiation, no-one will get everything they want. We will not be buffeted by the demands to talk tough or threaten a walk out. Just as we will not accept the counsels of despair that this simply cannot be done.’

For an analysis of what the speech means, bit by bit, see Institute for Government: The Prime Minister’s Mansion House Brexit speech

 

Withdrawal agreement

Earlier in the week, on 28 February 2018, the EU provided a draft Withdrawal Agreement  (the UK has not provided a draft). The agreement would set out the arrangements for the withdrawal of the UK from the EU and Euratom. It dealt with citizens’ rights, goods, services, customs procedures, intellectual property, police and judicial cooperation, data protection, finance, European institutions, transitional arrangements, etc. Everything, really. You can read the full document here.

Commenting in the Financial Times (5 March 2018) on ‘The emerging mismatch of Brexit detail and UK rhetoric’, David Allen Green pointed out that much of the Withdrawal Agreement (shaded grey in the draft) had already been agreed. Notably not yet agreed was the question of the Irish border, which remains controversial. Subject to that, the draft showed a good picture of what to expect of Brexit, at least in the near future:

‘UK ministers will still claim loudly that Brexit means the UK is taking control of the trio of its borders, its money and its laws. But the detail means that in respect of that trio, not a great deal is going to change.’

In practical terms, we would get a Brexit that ‘meets the narrow scope of the referendum question’ but ‘on the softest terms possible – a 52:48 Brexit respecting both sides, pointless in practice but important in form’.

 

Impact of Brexit on Ireland

A report came out last month, prepared by Copenhagen Economics for the Irish Government, on Ireland and the Impacts of Brexit: strategic implications for Ireland arising from changing EU-UK trading relations

The executive summary says that ‘Ireland is uniquely exposed to Brexit due to a very high trade intensity with the UK’, and explains its remit as follows:

‘This report analyses how changes in the EU-UK trade relationship could affect the Irish economy. The report quantifies how different types of EU-UK trade scenarios could affect Ireland’s trade with the UK and other trading partners. Finally, the analysis provides an assessment of the related macro-economic impacts as well as sector impacts for Ireland for a range of scenarios with different combinations of tariffs and other trade costs for EU-UK trade.’

 

EU Citizenship rights case – funded

Jo Maugham QC is working with a group of British nationals living in the Netherlands and others fighting for EU citizenship rights. They have just hit their crowdfunding target of £60,000 needed to take forward the fight to win EU citizenship rights for 60 million people, by way of a claim brought by a group of UK nationals living in Amsterdam with the help of Bureau Brandeis. The Vice President of the Dutch Supreme Court has referred it to the ECJ in Luxembourg. You can read more on the CrowdJustice page here: Let’s make legal history – and keep our EU citizenship rights

 

Media law

Leveson 2 abandoned

On 1 March 2018 the government announced that, after considering responses to a public consultation launched in November 2016, it would not now be proceeding with the second stage of the Leveson Inquiry, and would seek to repeal section 40 of the Crime and Courts Act 2013. This was perhaps not unexpected, given interim developments (see Weekly Notes 15 January 2018), and the fact that the Tory party had promised to do this in its manifesto before the ‘snap’ election of 2017. But the decision provoked a good deal of commentary.

In reaching its decision the government rejected the recommendation of Sir Brian Leveson himself that Pt 2 of the Inquiry should proceed, in accordance with the ‘legitimate expectation’ of the phone-hacking victims and others. The reasons given by Matt Hancock MP, Secretary of State for Digital, Culture, Media and Sport, were that ‘press self-regulation has changed significantly in recent years with the establishment of IPSO’, that section 40 could have a ‘chilling effect on investigative journalism’ and that ‘the media landscape has also changed’ with the threat to traditional news journalism now coming from ‘the rise of clickbait and fake news’ and ‘unregulated social media’.

In view of this decision, and subject to the government’s ability to pass legislation repealing section 40 of the 2013 Act, it seems that the original impetus for better newspaper regulation that resulted in the setting up of the Leveson Inquiry is now a spent force, and we should not expect significant further developments in this area.

For a more detailed discussion of this, see Transparency Project, Press regulation: the end of the road for Leveson reforms

See also

 

Charities

Safeguarding summit launched

Penny Mordaunt MP, the Secretary of State for International Development, launched the first ‘safeguarding summit to tackle sexual exploitation and abuse in the sector’ on 5 March 2018. The summit was co-hosted by the Department for International Development (DFID) and the Charity Commission, and was designed to ‘bring together UK international development charities, regulatory bodies and independent experts to commit to drive up safeguarding standards and take bold steps to tackle sexual exploitation and abuse within charities and by staff abroad.’

The move follows the Oxfam scandal last month, which we reported in Weekly Notes on 12 February 2018, when it emerged that aid workers had been involved in sexual misconduct and sexual exploitation whilst working on location to provide overseas aid or disaster relief. (See also Lawyer 2B: Oxfam scandal and charity regulation: guarding the safeguards)

According to the announcement from DFID the summit will consider a number of ideas to tackle the problem, including better vetting and referencing across the sector, better support for whistleblowers, improvements to organisational culture and, wait for it,  ‘Creating an independent body to promote external scrutiny and ensure the highest possible standards across the aid sector.’ This last proposal ought surely to be superfluous, since it would essentially duplicate functions that are already supposed to be performed either by the Charity Commission (regulating charities and the obligations of their trustees – though admittedly not all NGOs are charities) or by the DFID itself.

But no doubt it will be a good opportunity to appoint some top people to a committee, and spend money on consultants, office space and stationery, and keep a bunch of people with international aid charity experience (suitably vetted, of course) out of mischief and into a decent pension.

 

Law and Religion

From birth to burial – special dispensation or unlawful discrimination?

A trio of recent developments have prompted further debate about the extent to which laws and their application should accommodate or interfere with religious traditions and sensibilities. For example, Iceland recently declared its intention to outlaw male circumcision (in line with laws against other types of genital mutilation).

According to the Observer (Iceland law to outlaw male circumcision sparks row over religious freedom ):

‘A bill currently before the Icelandic parliament proposes a penalty of up to six years in prison for anyone carrying out a circumcision other than for medical reasons. Critics say the move, which has sparked alarm among religious leaders across Europe, would make life for Jews and Muslims in Iceland unsustainable. One in three men globally is thought to be circumcised, the vast majority for religious or cultural reasons. Many Jews and Muslims fear the issue of circumcision could become a proxy for antisemitism and Islamophobia, pointing to similar tensions over religious dress and the ritual slaughter of animals for meat.’

Barristerblogger Matthew Scott (The proposed ban on circumcision in Iceland raises some uncomfortable questions about our own law)  commented on the differences between male circumcision and various different types of female genital mutilation, some of which are markedly less invasive or destructive of tissue, and the paucity of evidence for the alleged health benefits of male mutilation. He cited the judgment of Sir James Munby P in In re B and G (Children) (No 2)  [2015] EWFC 3 at [59] – [60].  In Scott’s view, the argument should be about whether religious or cultural preferences should override the rights of the child.

Arguably, though, a more rounded ‘best interests’ approach might favour adherence to the religious or cultural expectations of the family in which that child grows up. That was an issue that arose in the case of  J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4 (30 January 2017) in which Peter Jackson J had to decide whether a father who had left the ultra-orthodox Jewish (Charedi) community to become a transgender woman should be allowed to have face-to-face contact with the five children of the family remaining with the mother in the community, in spite of that community’s vigorous opposition, and the effect that opposition might have on the children. See The Transparency Project,  Transgender v ultra-Orthodox Jewish community? The judge’s decision to deny such contact was criticised by the Court of Appeal [2017] EWCA Civ 2164 on 20 December 2017, who concluded, at [138]:

‘In our judgment, the best interests of these children seen in the medium to longer term is in more contact with their father if that can be achieved. So strong are the interests of the children in the eyes of the law that the courts must, with respect to the learned judge, persevere. As the law says in other contexts, “never say never”. To repeat, the doors should not be closed at this early stage in their lives.’

The decision which has been analysed on the UK Human Rights blog:  High Court decision refusing ultra-Orthodox transgender father access to children quashed. See also: RightsInfo, Court of Appeal Overturns Decision Denying Trans Parent Contact With Children

Passing from birth, through marriage and childcare, and on to the end of life, indeed to beyond the moment of death, the most recent development in the intersection of religion and law has concerned the special treatment usually accorded by coroners in respect of the corpses of Jewish and Muslim people, in ensuring those corpses can be released for burial as quickly as possible, to accommodate the religious and cultural practices of the bereaved and their mourners.

In a recent case, the decision of the Senior Coroner for inner North London, Mary Hassell, to impose a ‘cab rank rule’ – first come first served, regardless of religious differences, has prompted anger from faith groups and a claim for judicial review. The claim has been supported the UK’s Chief Coroner, Judge Mark Lucraft QC, who described the controversial ‘cab rank’ approach to burials as “not capable of rational justification” and “not lawful”. There is a blog post explaining the case on RightsInfo.

There is also a helpful thread from Adam Wagner on Twitter about the case.

And an article in the Guardian, by Peter Ormerod, Why I’d happily give up my place in the burials ‘cab rank’ queue

According to the Law Society Gazette, The court hearing in the case will take place on 27 and 28 March.

 

Family law

Dealing with sex abuse: How does the Family Court assess risk?

This was the title of a lecture by Jo Delahunty QC in her series on Transparency in the Family Justice System at Gresham College on 1 March 2018. You can watch the complete lecture via Gresham College’s YouTube link, and a copy of the lecture notes will be available from the Gresham College website.

The topics covered were

  • What we mean when we talk of sexual abuse?
  • How it can come to light
  • What guidelines exist to help guide police and social services investigations
  • How the Family Court approaches the allegation
  • Examples of cases in which fundamental mistakes have been made by investigators with the question why that is still happening

For an account of the highlights of the lecture, see Transparency Project blog.

An interesting issue, in relation to transparency in the justice system, is how much detail of the physical acts of abuse to include when discussing it either in a lecture like this or in published judgments from such cases. In the lecture, the details were largely redacted or omitted because, as Jo Delahunty explained, there are those out there who take an unhealthy and inappropriate interest in such matters, and collect the details to share with other abusers: ‘There is a web currency in child sex abuse cases and the creation from them of mock biographies of the children who have been abused.’ She would not, she said, permit this lecture to become part of that exchange. But it’s also one reason to think carefully about how much of the published decisions of the courts to allow search engines to crawl.

Recording guidance

Also on the Transparency Project website is the newly revised Guidance Note on parents recording meetings with social workers, which takes into account recent legal developments and cases.

For more family law news, see the Transparency Project’s Family Court Reporting Watch roundup

See also: Australia (below).

 

Land Law

Home ownership consultation

The Law Commission is examining the law on property ownership and issues with the current commonhold model. These issues could make commonhold unattractive to homeowners, developers, mortgage lenders and others across the wider property sector. Last month the commission launched a consultation seeking view on three areas:

  • What the difficulties in creating or converting to commonhold are
  • What issues make commonhold unattractive to homeowners
  • What issues make commonhold unattractive in the wider property sector

The call for evidence is open until Thursday 19 April 2018. An optional response form is available.

 

Dates & Deadlines

The ICLR Pupillage Award

Applications are now open for the annual award of £12,000 for a person taking up a pupillage in Autumn 2018 that pays up to but no more than £18,000 (including guaranteed earnings) regardless of the core practice areas of the hosting chambers. The application window opens on 1 March 2018 and closes on 31 March 2018.

Full details on our application page (there is also a link from our home page at www.iclr.co.uk )

 

BIALL Librarian of the Year Award

Sponsored by Wildy & Sons, the best legal bookshop in the world (probably), the British and Irish Association of Law Librarians annual award for the best law librarian, consisting of a ‘much converted glass book with the winner’s name inscribed upon it’ plus a not to be sniffed at sum of £500 cash, is offered to

‘an individual law librarian / legal information professional who has made a significant contribution to the work of BIALL and/or the legal information world, either in the UK, Ireland or overseas’

The award will be presented at the forthcoming Annual Conference of BIALL at Birmingham in June 2018. You can nominate / recommend your candidate here.

 

Law (and injustice) from around the world

Australia

Family violence mediation

Under a pioneering scheme operating in the Australian Capital Territory (ACT), applicants for Family Violence Orders (essentially non-molestation injunctions) are first required to attempt a form of mediation. Though this might sound counter-intuitive, the system appears to be a great success. It avoids the far more confrontational court hearing where both parties might be present in the same room, and the breach rate is lower than for court orders.

The shuttle mediation system involves the parties being in different rooms, with a court mediator going from one to the other. Sometimes things get a bit hairy and the go-between might have to press the panic button or beat a hasty retreat, but in most cases this form of alternative dispute resolution seems to allow the parties to air their grievances and reach an agreed order or undertaking. What is described as the ‘settlement rate’ is around 95%. The breach rate of consent orders is around 20%, which is far lower than for conventional court orders.

A recent episode of ABC’s excellent podcast The Law Report explains the whole process and interviews key personnel in Canberra where the system operates. ACT is the only Australian state where it currently does.

Listen (or read the transcript) at ABC / RN Shuttle mediation for family violence cases in ACT

 

China

Presidential term extension

China’s ruling Communist Party has proposed scrapping term limits for the country’s president, the official Xinhua News Agency said last month, appearing to lay the groundwork for party leader Xi Jinping to rule as president beyond 2023. According to the Washington Post, the party’s Central Committee proposed to remove from the constitution the expression that China’s president and vice president “shall serve no more than two consecutive terms,” under the 1982 constitution, when lifetime tenure was abolished.

The change was made to prevent the kind of autocratic personality cult that allowed Mao Zedong to institute that reign of terror politely described as a cultural revolution.

“To build the fate of a country on the renown of one or two people is very unhealthy and very dangerous,” warned Deng Xiaoping, Mao’s successor and the man behind the political reforms, according to the Guardian:  Xi Jinping’s power play: from president to China’s new dictator?

The move has prompted opposition inside China, where the Financial Times reports that ‘China’s censors have gone into overdrive’ even to the extent of  blocking the phrase ‘I disagree’ on social media. Other online curbs, often self-imposed by internet companies, covered the expressions ‘migration’ and ‘boarding a plane’ which were blocked from posts by regular users of Weibo, China’s top microblogging site. The phrase “boarding a plane” is a homophone for “ascending the throne” in Chinese. Speaking in riddles is second nature to a people watched by terror, and in any event comes naturally to a culture with a superstitious regard for homophonic connections. (The number four is unlucky because it sounds like the word for death, for example.)

Other terms censored on Weibo include “life-long rule”, “long live the emperor” and the title of George Orwell’s novel Animal Farm. More about him in a moment.

 

Myanmar

Journalists detained

‘Newsrooms around the world would want to have such dedicated, passionate and curious journalists as Wa Lone and Kyaw Soe Oo.’ So declared Myanmar bureau chief Antoni Slodkowski, paying tribute to his two Reuters colleagues, who were arrested in December 2017, while reporting on the Rohingya crisis, ‘for possessing important and secret government documents related to Rakhine State and security forces’. The Ministry of Information said they had “illegally acquired information with the intention to share it with foreign media”. Two policeman were also arrested. According to the reporters, the police arrested were not those who provided the documents.

The Official Secrets Act dates back to 1923, when Myanmar, then known as Burma, was a province of British India. It carries a maximum prison sentence of 14 years.

British colonial rule in Burma was depicted with some asperity in George Orwell’s novel, Burmese Days. However, if anything is Orwellian here, it is the name of the Ministry of Information.

For more information, see

Reuters: Facts on the arrest of Reuters reporters Wa Lone and Kyaw Soe Oo

YouTube: Reuters honors Myanmar journalists Wa Lone and Kyaw Soe Oo with the Baron Award

 

And finally… a little video

from our friends at LexisNexis, celebrating the 200th anniversary of Butterworths. Hold onto your wigs, it’s a whirlwind ride through legal history.

According to the blurb:

This year we celebrate our 200th anniversary. To mark the occasion we have produced a bicentenary film, which is a tribute to the legal profession and how it has helped transform society over the past 200 years.

Over the past two centuries we have worked hand in hand with the legal profession, supporting their practice and delivering innovation for the benefit of society as a whole.

That’s it for now. Thanks for reading and thanks for all the tip-offs in your tweets and blogs.

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.