Weekly Notes: legal news from ICLR, 11 November 2024
This week’s roundup of legal news includes elections, speeches, child abuse, inquiries, assisted dying, and the legal professions. Plus recent case law and commentary.… Continue reading
Recent legal news
Elections
The Conservative Party in their wisdom, has elected as leader of the party, and therefore also of His Majesty’s Opposition, Kemi Badenoch MP. She defeated her closest rival, Robert Jenrick. According to The Guardian,
“Badenoch took just over 56% of the 95,000 votes, in a poll that had a 73% turnout of eligible members. This amounts to the narrowest win of the four since the party changed its rules to allow party members the final say in contested leadership elections.”
A more detailed analysis of their relative support and where it came from appears in The Conversation.
Shortly afterwards, Badenoch, who has a busy agenda restoring her party to electability after one of its worst defeats in the last general election, began appointing her shadow cabinet. Among the new appointees was her closest rival Jenrick, to whom she allotted the booby prize of Justice. Jenrick grinned and bore it, and launched himself in his new role with a couple of (he thought) well targeted parliamentary questions about the government’s law-n-order policies, such as letting lots of dangerous prisoners out early and why haven’t we built lots more prisons yet please. They were answered by junior justice minister Alex Davies-Jones MP. It didn’t go well for Jenrick, as Joshua Rozenberg: A Lawyer Writes, with a rather tasty little clip of the parliamentary live stream, in Justice for Jenrick.
Meanwhile, across the pond, the US Presidential Election held on 5 November 2024 resulted in a confident victory — a landmark if not a landslide — for once and future President Donald Trump. He was 45 and will now be 47, although he is actually 78 (and some say his face looks even older, as though it was borrowed from a mummy in the British Museum. One of their many lost artefacts, perhaps.) Trump will not accede to the Capitol throne until 20 January, under the terms of the US Constitution, four years after his supporters tried to take it for him by force. Now that he has won by its processes, it may be hoped that he will look more favourably on democracy and its hallowed institutions. In the meantime he has been making plans for government. He has vowed, among other extravagant promises, to remove up to 20m illegal immigrants, and to impose stringent trade barriers to protect domestic jobs, though it’s not clear who would do them if they’ve all had to leave the country.
Reuters: Inside Trump’s plan for mass deportations — and who wants to stop him
BBC: What Trump could do on day one in the White House
Law and Policy Blog: The shapes of things to come — some thoughts and speculations on the possibilities of what can happen next
Byline Supplement: The Psycho-Social-Techno Politics of ‘MAGA’ Trumps Democracy — And The Liberal Left Needs an Answer
Safeguarding
… or lack of it, is the subject of the Independent Learning Lessons Review by the Church of England’s National Safeguarding Team (NST), which last week published its report into the church’s handling of allegations of serious abuse by the late John Smyth. Keith Makin, the independent reviewer, described the abuse as “prolific and abhorrent.”
The Lead Safeguarding Bishop, Joanne Grenfell, and the National Director of Safeguarding, Alexander Kubeyinje, said:
“The review concludes that Smyth is arguably the most prolific serial abuser to be associated with the Church of England. We know that no words can undo the damage done to people’s lives both by him and by the failure of individuals in the Church and other institutions to respond well. We are also aware that the time the review has taken, which the reviewer addresses, as well as the details now in the public domain have been retraumatising for survivors.”
Expressions of regret from church leaders have been welcomed with the observation that more could have been done far sooner to investigate and deal with this particular perpetrator’s abuses, which went on for decades and which Channel 4 News investigated and exposed in 2017. According to the Makin report the Archbishop of Canterbury, Justin Welby, was informed of the abuse in 2013 but failed to act, wrongly assuming the matter could be dealt with by the police. Following the report, and sundry calls for him to do so, Welby, having initially given a personal statement on the matter, has now resigned.
Smyth himself died in 2018. The independent review led by Keith Makin was first announced on 13 August 2019. Its timeline has since been extensively covered by the Law & Religion UK blog.
BBC: Archbishop of Canterbury resigns over Church abuse scandal
Inquiries
The Post Office Horizon IT inquiry continues to hear evidence, in phase 7, from senior management and government witnesses. This week the newly elected leader of the Opposition, Kemi Badenoch MP, appeared in her former capacity as Business Secretary — a senior minister with responsibility for the Post Office whilst the public inquiry was already up and running. Nick Wallis reports on her evidence on his Post Office Scandal blog, under the title Kemi Badenoch: I’m Great. She claims not to have known much about the scandal before she was appointed to the role, in whose performance she is probably best remembered, if at all, for sacking Henry Staunton, the chair of the Post Office, amid a flurry of pass-the-blame gaming.
The end of Nick’s blog is rather a gem:
At the end of his appointed time, Beer had a little dig.
“Ms Badenoch, those are my questions…” he started.
“Thank you!” she replied, quickly.
“… thank you very much for answering some of them,” he finished, leaving her looking a little foolish.I’m sure she will cope.
Assisted dying
Since our last commentary on this topic (see Weekly Notes, 21 October 2024), Kim Leadbeater’s private member’s bill has now been published, under the title: Terminally Ill Adults (End of Life) Bill. Its second reading is due on 29 November 2024. In the meantime there have been questions raised about how exactly the process of approval will work, including in particular the role of judges, as well as wider questions of whether it is a good idea in the first place.
Mental Capacity Law and Policy: Kim Leadbeater’s Terminally Ill Adults (End of Life) Bill — some questions
Transparency Project: Assisted dying: what role for the judge? (by Sir James Munby, former President of the Family Division, now retired, who points out that serving judges are, by constitutional convention, limited in what they can say in public about proposed legislation.)
UK Constitutional Law Association (UKCLA): Philip Murray: Looking down the slippery slope: Can assisted suicide be restricted to the terminally ill?
UKCLA: Stevie Martin: The Decriminalisation and Regulation of Assisted Suicide in England and Wales: Acknowledging and Addressing the Slippery Slope Argument
Society for the Protection of Unborn Children: SPUC slams “inherently dangerous” assisted suicide bill, now published in full detail
Campaign for Dignity in Dying: Kim Leadbeater MP’s assisted dying bill “strongest MPs have ever considered”, as historic proposal published in full
Crime
“I remember when this room was jammed with wigs. Old timers would greet each other, new recruits would seek advice. It used to be standing room only. Now, it is quiet.”
Where have all the criminal barristers gone? asks Joanna Hardy-Susskind, in Counsel magazine this month. She investigates the massive recent exodus of both young and more experienced barristers from the independent criminal bar in recent years. Last year, she says, now fewer than 1,436 criminal cases could not proceed when originally listed due to the absence of counsel. In 2019 the figure was just 71. The reasons people are leaving include the high stress, gruelling work, low rates of pay, lack of work-life flexibility and the thoughtlessness and unrealistic expectations of some judges.
“We have been conditioned to sacrifice perfectly normal activities like eating, sleeping and caring for children to keep a very poorly paid show on the road.”
Now people have had enough, and they are walking.
“These were not weak people who had buckled. They were some of our toughest advocates, and they had chosen to walk away from something they once loved.”
The result is a show that many participants are no longer prepared to destroy their own lives just to keep on the road.
Family law
Suspected Physical Abuse of Children — Experts in the Family Court
This was the title of an address by the President of the Family Division, Sir Andrew McFarlane, to the British Society of Paediatric Radiologists, last week. His speech aimed to give his audience
“some impression of the road that has been travelled by us all in our developing understanding of the various manifestations of child abuse. I hope that I have also demonstrated that today, just as for me in that courtroom in Birmingham 40 years ago, Roy Astley was the key to unlocking the truth in a case of suspected abuse, so too are you, today, in your work with children and, if it goes there, with the courts.”
As it happens the case he focused on, from early in his career, turned out not to be one of malignant abuse but simple parental ignorance: this child, in the expert’s view, suffered from copper deficiency thereby rendering his bones more brittle than those of a normal infant. Hence the many detected metaphyseal fractures. The mother was advised how better to handle him, avoiding the need for his removal.
Hamlyn Lectures 2024
Professor Richard Moorhead of Exeter University Law School has been giving the Hamlyn Lectures this year, on the theme of Frail Professionalism: Lawyer’s ethics after the Post Office and other cases.
The first was given at Exeter on 30 October under the title Unreliable gods and their fearless logics: what drives ethical error?
The second lecture was delivered in Leeds on 6 November under the title Extraordinary Orthodoxies and Legality Illusions: How legal logics can pollute institutions.
The third will be at UCL on 13 November, under the title Lucidity, morality and accountabilities: the routes back to proper professionalism?
Video recordings of all three are now available. See also: Lawyer Watch: Lawyers Ethics: A call for action
The Hamlyn Trust was created by Miss Emma Hamlyn in memory of her father, a solicitor and Justice of the Peace in Torquay, Devon, England. The object of the Trust is to further knowledge and understanding of the law, and this is achieved through an annual series of public lectures by distinguished judges, legal practitioners, academic lawyers and other eminent speakers. The first of the lectures was given by Lord Denning in 1949.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4
CHILDREN — Custody rights — Abduction: In re R (Children), 30 Oct 2024 [2024] EWCA Civ 1296; [2024] WLR(D) 474, CA
CHILDREN — Orders with respect to children — Prohibited steps order: AS v Waltham Forest London Borough Council, 05 Nov 2024 [2024] EWHC 2808 (Fam); [2024] WLR(D) 471, Fam D
CONTRACT — Termination — Allocation of liabilities and entitlements: Topalsson GmbH v Rolls-Royce Motor Cars Ltd, 05 Nov 2024 [2024] EWCA Civ 1330; [2024] WLR(D) 473, CA
CRIME — Evidence — Admissibility: R v AEB, 01 Nov 2024 [2024] EWCA Crim 1320; [2024] WLR(D) 481, CA
CRIME — Evidence — Character: R v BVY, 07 Nov 2024 [2024] EWCA Crim 1355; [2024] WLR(D) 479, CA
EMPLOYMENT — Redundancy — Consultation: De Bank Haycocks v ADP RPO UK Ltd, 29 Oct 2024 [2024] EWCA Civ 1291; [2024] WLR(D) 468, CA
LAND REGISTRATION — Registration — Adverse possession: Clapham v Narga, 11 Nov 2024 [2024] EWCA Civ 1388; [2024] WLR(D) 482, CA
PRACTICE — Security for costs — Payment into court: Parsdome Holdings Ltd v Plastic Energy Global SL, 29 Oct 2024 [2024] EWCA Civ 1293; [2024] WLR(D) 463, CA
PRISONS — Prisoners’ rights — Parole Board recommendation: R (Sneddon) v Secretary of State for Justice (R (Oakley) v Secretary of State for Justice), 28 Oct 2024 [2024] EWCA Civ 1258; [2024] WLR(D) 459, CA
TRIBUNAL — First-tier Tribunal — Practice: R (Chowdhury) v First-tier Tribunal (Immigration and Asylum Chamber), 08 Nov 2024 [2024] EWCA Civ 1380; [2024] WLR(D) 475, CA
TRIBUNAL — Tribunal of inquiry — Power to suspend: In re JR222, 30 Oct 2024 [2024] UKSC 35; [2024] 1 WLR 4877; [2024] WLR(D) 465, SC(NI)
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Nearly Legal: What’s another day? Moh & Ors v Rimal Properties Ltd [2024] UKUT 324 (LC), UT
QMLRA: case-study in witness credibility: Deakin-Stephenson v Behar [2024] EWHC 2338 (KB), KBD
Local Government Lawyer: Developer wins High Court challenge after inspector misinterpreted policy in neighbourhood plan: Cora Homes Ltd v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 2617 (Admin), KBD
Mental Capacity Law and Policy: Anticipatory declarations and supporting P in her wish to protect herself: Leicestershire County Council v P & Anor (Capacity: Anticipatory declaration) [2024] EWCOP 53 (T3), Ct of Protection
Global Freedom of Expression: Dianova v. Russia: expands expression Dianova v Russia (Application nos. 21286/15, 13140/16, 13162/16, 20802/16 and 24703/16), ECtHR
Free Movement: Care home operator’s sponsor licence revoked for supplying sponsored workers to third parties: R (Tendercare Management Ltd) v Secretary of State for the Home Department [2024] EWHC 2154 (Admin), KBD
Free Movement: Supreme Court says that statutory duty regarding children does not apply to the First-tier Tribunal: CAO v Secretary of State for the Home Department [2024] UKSC 32; [2024] WLR(D) 454, SC(NI)
Free Movement: Court of Appeal apologises and grants four year extension of time after administrative failings: Rana v First-Tier Tribunal [2024] EWCA Civ 1211, CA
Financial Remedies Journal: GH v GH — FDRs Are Not to Be Dispensed With: GH v GH [2024] EWHC 2547 (Fam); [2024] WLR(D) 422, Fam D
Legal Futures: Court of Appeal ruling opens door to motor finance mis-selling claims: Johnson v FirstRand Bank Ltd (London Branch) (t/a MotoNovo Finance) [2024] EWCA Civ 1282, CA
Local Government Lawyer: High Court orders council to treat asylum seeker in accordance with claimed age until further assessment carried out: R (MS) v Kent County Council [2024] EWHC 2661 (Admin), KBD
UK Constitutional Law Association: The Judicial Approach to the Judicial Discretion under s.4 HRA in Mercer v Alternative Future Group Ltd [2024] UKSC 12; [2024] ICR 814; [2024] 4 All ER 1; [2024] WLR(D) 165; The Times, 3 June 2024, SC(E)
Local Government Lawyer: Upper Tribunal remits rent repayment order case for fresh hearing amid claims of misinformation on council website about HMOs: Daisy Ojukwu v Chukwunyere Peter Onuoha [2024] UKUT 313 (LC), UT
Becket Chambers: Practice Direction 12J, fact find hearings and child arrangements: E, F And G (Interim Child Arrangements) [2024] EWCA Civ 874, CA
Global Freedom of Expression: National Youth Council of Moldova v. Republic of Moldova: expands expression: National Youth Council of Moldova v Republic of Moldova (Application no 15379/13); Press release in English, ECtHR
Global Freedom of Expression: Zöldi v. Hungary: expands expression: Zöldi v Hungary (Application no. 49049/18), ECtHR
Nearly Legal: Yes, you are the landlord — Rent Repayment Orders and undisclosed principals: Cabo v Dezotti [2024] EWCA Civ 1358, CA
Nearly Legal: Notes in passing. Big issues in Wales, and “Probably one can obtain the like on Amazon”: Coastal Housing Group Ltd v Mitchell & Anor [2024] EWHC 2831 (Ch), Ch D
Law & Religion UK: Jehovah’s Witnesses and the right to refuse medical treatment: Lindholm and the estate after Leif Lindholm v Denmark (Application no. 25636/22); [2024] ECHR 835, ECtHR
Inforrm’s Blog: Associated Newspapers partly successful Human Rights claim concerning CFAs: Associated Newspapers v United Kingdom (Application no. 37398/21), ECtHR
Local Government Lawyer: Orders protecting against risk of FGM should be “focused, targeted and proportionate” to specific risks established, says High Court judge: AS v Waltham Forest London Borough Council [2024] EWHC 2808 (Fam); [2024] WLR(D) 471, Fam D
UK Human Rights Blog: Police not liable for failing to protect someone from injury: Supreme Court Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33; [2024] 3 WLR 822, SC
Law Society Gazette: High Court throws out complaint over solicitor’s ‘settle’ advice: Blower v GH Canfields LLP [2024] EWHC 2763 (Ch), Ch D
Local Government Lawyer: Hopeless but not the same? Evans v Bridgend County Borough Council [2024] EWHC 2607 (Admin), KBD
AND FINALLY…
Preventing sexual harassment in the workplace — how to prepare for the party season
Or how not to let your festive season parties lead to claims by litigating parties. Solicitors firm Kingsley Napley gets their advice in early, the day before Halloween, but it’ll be good to go until Lunar New Year. According to senior associate Francesca Lopez,
Unfortunately, for employment lawyers, we are likely to see an uplift in our workload as December approaches and Christmas party merriment crosses the line into misconduct. I don’t mean to be a killjoy, but it happens every year. Without fail.
Don’t worry. As soon as the festive season is over, we’ll be hearing from the family lawyers about Divorce D-day, which comes round every New Year, after couples have spent the festive season bickering.
That’s enough holiday business development. Thanks for reading, and make sure you’re signed up for our email alerts.
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.