As the party conference season draws to a close, our weekly roundup of legal news and comment considers various aspects of Brexit, some scrutiny of the Court of Protection, sentence inflation in the criminal courts and a battle royal between Crown Court bibles. 

Politics

Conference follies

Brexit and the Tories have made a mess of the world of political clichés. You could say that the wheels had finally fallen off the Brexit bus, and the writing was on the wall for the Conservative party. But the problem has always been with the writing on the bus, not the wheels, and in the end the writing wasn’t on the wall at the Conservative party conference in Manchester, because it gradually fell off. And given that UKIP, the one-trick party, had just unveiled its new lion’s head logo, was it wise for Boris Johnson’s conference speech to end with an exhortation to “let that lion roar”? 

In this mixed up looking glass wonderland, it seems hard to discuss policy with any certainty. By the time you read this, Theresa May could well be out of her job, fulfilling the prophecy manifested by a prankster’s P45 delivered during her coughing-fit-cursed conference speech. 

Let’s not forget the other main political party conferences. Both Lib Dems and Labour enjoyed the fantasy of discussing what they might do if they ever got into power, with the latter rolling out a programme of re-nationalisation that fully exploited the Brexit bonus of taking us back to the 1970s and beyond, complete with brain drains, runs on the pound and a command economy that no one would obey. The Lib Dems’ most glorious fantasy was the idea that Vince Cable might one day be prime minister. (He currently has 12 MPs in the House.) UKIP voted for yet another leader to have a turn on the rostrum, which is more like a roster. There’ll be another one along soon. 

You have to remember that party conferences are basically parties for the party, in which they get to tell each other how much they really, really love themselves — except for so-and-so who’s a bastard — forgetting that the whole thing is being taped for the nation to laugh at. 

Conference roundups in the Guardian (you may wish to get popcorn):  

Marina Hyde: From Boris the Lion King to Theresa May’s P45 – my malarial week at the Tory conference

Marina Hyde: Oh, Jeremy Corbyn! I bet you think this song is about you: my week at Labour’s love-in

John Crace: If Vince Cable is the Lib Dems’ saviour, they don’t seem entirely convinced

Marina Hyde:  Wingnut leaders, cut-price logo. The new Ukip looks just like Oldkip

Brexit

The Brexit negotiations have now completed four rounds without achieving agreement on anything, though the deadlock was said to have been broken by the Prime Minister’s speech in Florence, the week before, proposing a two-year transition period (and the £20bn or so in continued contributions it represented). This at least indicated a realism in place of the boxing match bluster of no-deal walkaways and whistling for cash – but it remains to be seen how long the government can behave with reason and realism in the face of unreasonable tabloid demands and unrealistic popular expectations.

Last month the Citizens’ Rights Working Group in the Department for Exiting the European Union published its latest comparison of the EU/UK positions on citizens’ rights. These tables summarise the UK and EU positions and compare them, indicating with green infill the areas of agreement, which are now substantial; yellow for areas of uncertainty, and red for areas of “divergence”. Though there seem to be more green fields in the table the red ones do not appear to have become any less numerous.

For a detailed and erudite running commentary on the Brexit negotiations, head over to the Jack of Kent blog written by David Allen Green, and see his excellent FT posts (£). 

See also the Middle Temple Library Blog, Brexit Highlights 2-8 October 2017

EU Withdrawal Bill

The bill passed its second reading on 11 September (by a majority of 36, with many MPs postponing their demands for concessions to a later stage). It will next be considered in a Committee of the whole House on a date to be announced. The bill has been described as a cynical power grab (eg by the Guardian) and as a “victory for British parliament” (by the Spectator).

An undoubted fact, which we’ve highlighted here before, is the alarming extent of the powers — known as “Henry VIII powers” — that it confers on ministers to make and amend primary legislation by means of secondary legislation unscrutinised by Parliament. (But then so much primary legislation is not particularly well scrutinised by Parliament either, as evidenced by the many reported cases in which courts puzzle over its interpretation, and by the number of subsequent corrective amendments which need to be made, and so it goes on.)

Read the bill as introduced.

Read debates.

Commons library briefing

House of Lords Delegated Powers and Regulatory Reform Committee report

Explainer from FullFact

Commentary:

Dominic Grieve MP, in the Evening Standard: Only a watertight withdrawal bill can put Brexit into effect – the present one, he says, “seeks to confer powers on the Government  to carry out Brexit in breach of our constitutional principles, in a manner that no sovereign Parliament should allow”. He concludes:  “The electorate did not vote to “take back control” to see our domestic constitution and liberties vandalised.” 

On the UK Constitutional Law Association blog:

Mark Elliott and Stephen Tierney,: House of Lords Constitution Committee Issues Interim Report on the EU (Withdrawal) Bill

Merris Amos: Red Herrings and Reductions: Human Rights and the EU (Withdrawal) Bill

Gordon Downie: Brexit: What to Make of Directives?

Dispute resolution after Brexit

The Institute for Government think tank has published a paper on dispute resolution after Brexit in which it argues that

 “The Government must either back the European Free Trade Association (EFTA) Court model or bring forward proposals for an inventive and untested new dispute resolution system for the withdrawal agreement.”

 It discusses the various options which both the UK and the EU should be able to accept as compatible with their ‘red lines’ with warnings as to the difficulties they might face in practice. The EFTA court would be the most sensible option, except that its close relationship with the ECJ may cross the PM’s red lines. There’s also a handy little infographic.

More commentary on dispute resolution:

Carl Gardner focuses on enforcement in his Head of Legal blog post, Will Brexit rights have direct effect? The Human Rights Act may show us the answer

David Green of 12 King’s Bench Walk, on the International and Travel Law Blog, comments on the Brexit department’s own position statements

EU ref JR claim

 The Good Law Project founded by Jo Maugham QC is inviting support for a claim against the Electoral Commission seeking judicial review of its failure to investigate apparent breaches of referendum spending limits by Vote Leave in conjunction with associated organisations. The GLP has assembled a high class legal team. It will be led by Jessica Simor QC of Matrix Chambers; she will be supported by Tom Cleaver of Blackstone Chambers. They will be instructed by Polly Glynn of Deighton Pierce Glynn. 

 We believe our prospects of succeeding in the judicial review are very good.

If you care about our democracy, we invite you to participate in funding what we hope will be a landmark case to protect it.”

You can read more about it, and support the claim, on CrowdJustice 

Court of Protection

Huge increase in often costly welfare cases 

A report funded by the Nuffield Foundation and carried out by researchers at Cardiff University’s School of Law and Politics, Welfare cases in the Court of Protection: a statistical overview, points out that the work of the court, which was established in 2007 under the Mental Capacity Act 2005 (MCA) to adjudicate on questions relating to mental capacity and best interests, is mainly being used for social welfare and deprivation of liberty cases, rather than the serious medical treatment issues of its predecessor jurisdiction. Moreover, the costs of typical welfare cases could be much higher than expected and, suggest the authors, “is likely to have a significant chilling effect on bringing disputes and serious issues before the CoP”.

The report was written by Lucy Series, Phill Fennell, Julie Doughty and Adam Mercer. Its key findings are: 

  • Unlike its predecessor jurisdiction in the Family Division of the High Court, the work of the CoP leans more strongly towards social welfare questions such as where a person lives and how they are cared for than medical treatment. Local authorities are now the main users of the CoP’s welfare jurisdiction – they are involved more frequently in CoP litigation than NHS organisations.
  • Cases about relationships – who a person has contact with, and whether they have the mental capacity to consent to sex or marriage – are among the most complex in the CoP’s jurisdiction.  They typically involve more parties and hearings, take longer and cost more than other kinds of case.
  • We estimate that a typical welfare case in the CoP can cost local authorities around £13,000, but found examples of cases costing considerably more than this. The cost to public authorities of welfare litigation in the CoP may have a chilling effect on their willingness to refer disputes to court where appropriate. For P and families who do not qualify for legal aid, the cost of litigation may be a major barrier to accessing justice.
  • We found little evidence that P or families were using the CoP’s main personal welfare jurisdiction to challenge decisions made under the MCA; in our sample it served primarily as a vehicle for public bodies to seek authorisation for best interests decisions. However, the procedure for asking the court to review a deprivation of liberty safeguards authorisation provided a vehicle for P and others to challenge assessments that they lacked mental capacity, or best interests decisions, about a wide range of matters including: disputes about serious medical treatment, contact with friends or family, and consent to sex or marriage. We raise concerns that recent rulings by the Court of Appeal may close down the only realistically available route into the CoP’s welfare jurisdiction for these fundamental human rights matters.
  • We found few indications that P was routinely participating in CoP welfare proceedings. We hope that following the introduction of new rules on participation this picture has changed since our research took place.

See also:  writeup in Local Government Lawyer, Cost of welfare litigation in Court of Protection “may have chilling effect”

Lack of transparency over pilot

The study described above relates to the year 2014-15, which was before the Court of Protection transparency pilot. It notes that:

“Our study, conducted before the current transparency pilot enhanced media access to the court, found little evidence of active media efforts to attend or report on hearings, and only a small number of examples of reporting restriction orders imposed on the media.”

The CoP transparency pilot began in 2016 and provided that the majority of what would otherwise have been private hearings dealing with welfare and deprivation of liberty cases should instead be heard in open court, subject to reporting restrictions. The pilot was originally designed to run for a few months, but has since been extended, twice, and is now due to expire at the end of December.

Members of the Transparency Project, including myself, have attended hearings under the pilot and reported on its operation. We understood that the pilot, as its purpose indicated, would be reviewed at some point, but were dismayed not to have been formally involved in its review, especially given our significantly greater engagement with the pilot than, it would seem, either the media or the public generally. We filed a Freedom of Information request to the Ministry of Justice to see if we could find out more about any internal review that had been conducted.

It transpired, as Julie Doughty writes up in a post on the Transparency Project blog (The Court of Protection pilot – taking off before a flying test?), that there was a  series of meetings early on in the scheme, in April 2016, to review it (but too early for such a review to be useful); but that since then no further attempt has been made to gather views of users or what one might call spectators. It does seem clear that many practitioners find the additional work of anonymising paperwork to comply with the pilot practice directions and orders to be a burden, which they regard as intrusive and unnecessary; but little effort has been made to discover the views of the people whom the cases are about, usually known as “P”, or their families. 

The key question, which remains unanswered, is whether the transparency offered by the pilot scheme, whilst admirably compliant with the principles of open justice and judicial accountability, is actually helping promote public understanding of the work of the court. (And who better to ask, one might think, but the members of the Transparency Project whose aims are to promote that public understanding.) 

 

Crime

Sentencing inflation: are judges to blame?

Last week saw some adversarial tweetery over the suggestion, raised by Lord Adonis (former Head of Policy at Number 10 Downing Street), that judges should take some responsibility for the huge increase of the prison population in recent years.

He was taken to task by, among others, the Secret Barrister, who pointed out that sentencing policy was largely dictated by legislation created by politicians to satisfy popular demand goaded by the media. Senior politicians on both sides also took to Twitter to dispute the Adonis line.

But Penelope Gibbs points out in her Transform Justice blog that the position may not be so clear cut. The sentencing guidelines are produced by the Sentencing Council, an independent (arms length) body populated by judges and lawyers, which is not particularly accountable to, let alone controlled by, the government. She cites commentary, also on Twitter, by Blair Gibbs, a former policy adviser to Michael Gove (last Lord Chancellor but one, if you recall). Therefore it may be “too simplistic to lay the blame for the rise in the prison population solely at the door of successive governments”.

She also points to a good discussion on sentencing law by Clive Anderson and guests, including the Attorney General and a senior judge, on the BBC radio 4 programme, Unreliable Evidence  

Over the weekend, the Secret Barrister returned to the subject, with a blog post entitled A reply to Lord Adonis on sentencing, prisons and judges

 

Legal publishing

A v B [2017] Crim 101 

The subscription renewal season is now upon us, and the cheese-parers who control next year’s budgets in the books and legal materials procurement game are looking at the comparative virtues, in cost-benefit terms, of rival publications. As a legal publisher ICLR is not immune to this process as it seeks to ensure the continued supply of law reports to the courts, chambers, firms and colleges who need to read them, on line or in print.

But the bitterest battle of all seems to be that between those rival criminal practitioner textbooks, Archbold and Blackstone’s, as to which of them shall be the Crown Court bible approved by the judicial executive board.

For years and years, Archbold: Criminal Pleading, Evidence and Practice rested comfortably on its laurels, growing fatter and fatter, dearer and dearer, complacent in the knowledge that it had long been the judges’ favourite. And not just the judges’. When that most famous criminal hack in fiction, Rumpole of the Bailey, needed a heavy tome to drop in court as a distraction during this opponent’s cross-examination of a shaky defence witness, it was his trusty old Archbold that toppled from counsel’s pew. 

But while Archbold has been going since 1822, Blackstone’s Criminal Practice, which only began publication in 1991, has rapidly grown in both stature and reputation, while remaining somewhat leaner in volume and cost. Last year the JEB decided to favour the young contender as the official reference work for the criminal courts in 2017.

This year, reports the Law Society Gazette, both the Criminal Bar Association and the London Criminal Courts Solicitors’ Association are seeking views of their members as to which bible they think should be preferred. Chair of the CBA Angela Rafferty said:

 “Many of our members have expressed concern that the change of official text was brought in quite suddenly and with little thought for those who use these books every day…  There appears to be inconsistency and uncertainty. This is having a real impact.”

Now The Times has come out with a story (“Game of Tomes”)  about Sir Brian Leveson, one of the senior judges on the JEB, failing to declare the fact — apparent to anyone who looked at the book — that he was a member (unremunerated as such) of the editorial advisory board for Blackstones.

“The Judicial Office said last night that the judge, 68, did not formally declare his interest or recuse himself because his link with Blackstone’s was “a matter of public record and known” to his fellow judges.”

 The report in the Times also got a quote from James Richardson, QC, editor of Archbold, who said:

“I don’t for one moment think that they chose Blackstone’s just because Leveson is on the title page. But it doesn’t look good.”

The JEB choice relates to the books supplied to and used in courts, and does not preclude judges using their individual book allowance to purchase Archbold if, like many practitioners, they prefer it. But it costs more and is designed to be used in conjunction with the Criminal Appeal Reports, both products being published by Sweet & Maxwell and only available online from Westlaw. Blackstone’s, on the other hand, favours ICLR citations and the electronic version links directly to cases in The Law Reports and Weekly Law Reports on ICLR.3. For obvious (and I hope transparent) reasons, therefore, we support the JEB’s preference.

I fear not everyone is taking this as seriously as they should: 

That’s it for now. Our thanks to all who flagged up stories, via Twitter or their blogs. 

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter.