Judicial speeches

Lord Carnwath on Human Rights

Constitutional Law Matters held an online webinar on 8 February 2022 with Lord Carnwath of Notting Hill discussing the Government’s consultation paper on reforming the Human Rights Act 1998 and The Independent Human Rights Act Review (IHRAR) chaired by Sir Peter Gross.

In his speech, Is it time for a new British Bill of Rights? Lord Carnwath, criticised what he described as:

“a proposal to replace, in substantially the same language, a code which has been part of our law for more than 20 years requires strong justification. Either it means the same thing, in which case what is the point? Or it does not, in which case we can expect a long learning process through the courts to find out what it does mean. … The challenge for those promoting a new Bill of Rights is not just to point to problems with the existing case-law, but to show why matters would be improved by recasting the same rights in a new Bill.”

He questioned how it would advance the government’s objectives to replace section 2 of the Human Rights Act 1998 with a provision that “the courts are not required to follow or apply any judgment or decision of the European Court of Human Rights”, that the meaning of a right in the Bill of Rights “is not necessarily the same as the meaning of a corresponding right in the European Convention on Human Rights”, and that the courts “may have regard to relevant judgments from other countries and international courts outside the UK”.

“The court is invited in effect to set aside the jurisprudence developed over the years since the HRA came into effect as to the meaning of the various rights, and to start again. In doing so it is not required to give particular weight to decisions of the Strasbourg court, or even of the UK courts, on the meaning of the Convention rights, but can draw as it thinks fit from the case law of countries round the world and from international law. The court is given no assistance as to which if any it should prefer, or by what criterion. I confess that, as a judge trying to interpret the will of Parliament, I would come close to despair. Nor can I see how offering that degree of choice to the courts is expected to curb the judicial activism of which the paper complains, still less to advance the stated objective of promoting greater certainty. That particular proposal must surely not be allowed to get off the ground.”

The government’s consultation paper also criticised a number of decision in which the UK Supreme Court appeared to have given an over-generous interpretation of rights under the Convention. For example, in Cheshire West and Chester Council v P [2014] UKSC 19; [2014] AC 896, the concept of “deprivation of liberty” in article 5 of the Convention. But, Lord Carnwath pointed out,

“We are told by the CP that all the Convention rights, including presumably article 5 or its equivalent, would be retained in the Bill. If so, why would the reasoning of those judges, or their interpretation of the critical words, have been any different if those same words had appeared in a British Bill of Rights, rather than in the HRA?”

But his main criticism seemed to be for the failure to include in the terms of reference of the Gross review many of the concerns addressed in the consultation paper. In consequence, there is

“a serious mismatch between the two exercises. They are almost like ships that pass in the night. The Gross panel were not asked to consider the possibility of a new Bill of Rights, which is central to the CP. Nor were they asked to consider the problems said by the CP to be created by the extensive interpretation of the Convention by the Strasbourg court, which are central to the justification for the CP proposals.”

See also: Joshua Rozenberg, A Lawyer Writes: Bill of rights under fire

Lord Burnett on the Rule of Law

Giving the Blackstone Lecture 2021 at Pembroke College, Oxford on 11 February 2022, Lord Burnett of Maldon, Lord Chief Justice spoke on The Hidden Value of the Rule of Law and English Law. Although he began with a brief discussion of what is meant by “the rule of law”, the lecture was basically a marketing exercise aimed at promoting English law and the English courts as a forum for the resolution of commercial disputes, and a plea to the government to ensure that they were adequately provided for.

“The rule of law underpins all economic and social activity in this country and, independently, English law and the Common Law bring substantial economic benefits. Both are taken for granted and their contributions undervalued by many.”

He said little about non-commercial or non-civil areas of law. He said nothing about criminal law. In relation to family law, however, he made a plea to litigants to avoid clogging up the courts with disputes that could less contentiously be settled through mediation. But he made a more general point that the availability of the courts and their application of a law whose consistency and predictability were underpinned by the doctrine of precedent brought a more general benefit to society:

“The very existence of an effective court system acts as a brake on inappropriate behaviour in all areas of activity and helps prevent disputes arising in the first place. The courts are not a service only for those who find themselves needing them.”

One of the benefits of the common law was, he pointed out, its agility in adapting to change:

“It is critical that our laws remain up to date and capable of responding quickly and nimbly to new developments. The work of the Taskforce on blockchain and cryptoassets is a preeminent example. I see an echo in this current work of the astonishing creation of English mercantile law in the late 18th century which helped place the country in such a strong international mercantile position. This is one of the greatest abilities of the common law: to react quickly to the new whilst providing stability and predictability.”

The risk was the all of this might be taken for granted, and while businesses the world over continued to use English law, they might not continue to use English lawyers and English courts. Vigilance (and financial support) was needed:

“Our courts, perhaps most tellingly in the context of this lecture the Commercial Court and the Financial List, must continue to be seen as beacons of excellence the world over. They must be properly funded in a way that leaves behind the notion that they are no more than an ordinary public service; and there must be eternal vigilance to attract the best practitioners to salaried judicial office. … English law is a real asset to the United Kingdom and should be nurtured by Government in the same way that Government seeks to nurture other business sectors and industries that are seen as key to the future prosperity of the nation.”

Nicola Davies LJ on Women in law

Lady Justice Nicola Davies gave a speech at Gray’s Inn on 8 February 2022 to mark the launch of The Inns of Court Alliance for Women. As she explained,

“This is an alliance between the four Inns of Court to encourage and support women in the profession. The word ‘Alliance’ has been chosen to signify the institutional alliance between the Inns of Court and to demonstrate an alliance of purpose.”

Gender equality in the profession, she said, “has a considerable way to go”.

“Challenges and barriers to entry and thereafter progression and retention of women at the Bar require addressing, as do issues of harassment and bullying. A specific area of current concern is that of gender income disparity as between men and women and in particular, women from ethnic minorities.”

She cited a recent report by the Bar Standards Board* revealing sharp disparities in earnings.

“Even when comparing barristers in the same main practice area and seniority, by year of call, female barristers and barristers from minority ethnic backgrounds still earn less on average than their equivalent male and white barristers.”

The Alliance would create a forum where issues such as this, which women continued to encounter within the profession, could be openly and constructively discussed. Its terms of reference would be

  1. Providing a safe forum where issues facing women in the profession can be discussed;
  2. Supporting the Inns commitment to equality, diversity, inclusion and social mobility;
  3. Taking an intersectional approach to talks and events to ensure the voices of women facing inequality are heard;
  4. Promoting initiatives across the four Inns to support access, retention and progression of women in the profession.

*The BSB report is here: Income at the Bar — by Gender and Ethnicity

Police

Metropolitan Police Commissioner resigns

On 10 February 2022 the Commissioner of Police of the Metropolis, Dame Cressida Dick, resigned shortly after telling the BBC she had no intention of doing so. Her original five-year appointment in 2017 had been extended in September 2021 for a further two years. But in a statement issued shortly after a meeting with the Mayor of London, Sadiq Khan, she said “it is clear that the Mayor no longer has sufficient confidence in my leadership to continue”.

Dick was a somewhat controversial appointment in the first place, given her role in the fiasco that led to the shooting of an innocent man, Jean Charles de Menezes, in a bungled anti-terror operation. During her term of office there have been a number of incidents demonstrating a failure to address, or even acknowledge, institutional racism, corruption, and widespread misogyny and homophobia. The latest of these was the subject of a report by the Independent Office for Police Conduct (IOPC) into bullying and harassment in the ranks. Dick’s plan to implement the report’s recommendations apparently failed to win the Mayor’s confidence. There was also public disquiet over the Metropolitan Police’s apparently failure to investigate widely reported breaches of lockdown regulations in Downing Street, after very ruthlessly enforcing the regulations everywhere else in the city, including at a peaceful vigil after the abduction, rape and murder (at the hands of a police officer) of Sarah Everard. (See Weekly Notes, 15 March 2021 and 31 January 2022)

UPDATE: the Metropolitan Police Federation, in a somewhat petulant display of tit-for-tattery, have just announced: The Metropolitan Police Federation has declared it has no faith in London Mayor Sadiq Khan.

Further reading:

Crime

Lockdown enforcement

Meanwhile, Fair Trials and civil liberties campaign group Big Brother Watch have sent a letter to Justice Secretary, Dominic Raab MP, demanding a review of coronavirus fines and prosecutions, backed by 15 rights groups, 40+ parliamentarians and several human rights lawyers.

In the joint letter, the signatories cite the discriminatory, inconsistent and unlawful enforcement of coronavirus laws and regulations. Fair Trials reports that 118,963 fixed penalty notices (FPNs) have been issued by police in England and Wales for breaches under coronavirus regulations. Although a lot were were found to be unlawful upon review by the Crown Prosecution Service, most charges and prosecutions under the Regulations have not even been reviewed by the CPS, as they were charged by the police and brought directly using the Single Justice Procedure (SJP). They are charged by the police and heard ‘on the papers’ by a single magistrate alongside a legal advisor.

Now Tristan Kirk in the Evening Standard reports that the Attorney General’s office raised concerns in May 2020 about the potential for mistakes being made in the SJP process, suggesting that lockdown breakers were “best suited” to be dealt with in open court. Despite concern over the likely “error rate” and around a lack of transparency, the Attorney General Suella Braverman QC MP — under pressure from the CPS and police — was persuaded to add Covid-19 offences to the SJP system on 2 June 2020.

Family law

Children: deprivation of liberty

What do we know about children and young people deprived of their liberty in England and Wales? That is the subject of an evidence review published on 9 February 2022 by the Nuffield Family Justice Observatory.

“Drawing on national administrative data and research from the past 10 years, this report aims to bring together what we know about children deprived of their liberty across welfare, youth justice and mental health settings in England and Wales. It summarises what we know about the number of children held in different settings, who the children are, where they are placed, their experiences of secure care, and what happens to them afterwards.

It follows widespread concern in the child welfare system about a shortage of placements in registered secure children’s homes, the increasing numbers of children being deprived of their liberty in unregistered placements because there is nowhere else for them to go, and the capacity and capability of the system to meet the complex needs of this group of children.”

Download the full report here.

Reporting restrictions

Which Judges can relax reporting restrictions? Lucy Reed, family law barrister and recorder, who also chairs the Transparency Project, addresses a frequently asked question. As she explains:

“It’s not that often that a journalist or legal blogger attends a family court hearing but, when they do, they will often ask for permission to report what has taken place, anonymously. Because lawyers and judges are often unfamiliar with dealing with this sort of request, there can be confusion about the correct approach, and sometimes even about whether an ‘ordinary’ Family Court judge is allowed to deal with such a request.”

The short answer is that any Family Court judge can relax reporting restrictions (such as statutory prohibitions automatically applying to private hearings) but it requires High Court powers to impose them. Reed provides a basic explainer of why that is, and of the law and procedure rules that apply, aimed at reporters and other non-lawyers as well as lawyers and judges who might not be up to speed.

Gaslighting

What is ‘gaslighting’ and what does it mean in family court cases? The terms “gaslighting” and “being gaslit” are widely used, including in family law cases, but not everyone is very precise as to what they mean. It’s often simply used as a synonym for lying. But its true meaning is more complex and subtle — more like manipulating someone to doubt their own grip on reality, as some sort of power game. Dr Julie Doughty, on the Transparency Project blog, looks at the origins of the concept, in the play Gaslight by Patrick Hamilton, and its occurrence in modern case law and policy.

Prisons

Apprenticeships opportunity

The government will legislate to enable prisoners at open prisons to apply for apprenticeship opportunities in industries such as hospitality and construction, providing them with direct routes into jobs with businesses in the community. According to a joint announcement by the Ministry of Justice and Department for Education, timed to coincide with National Apprenticeship Week 2022, the scheme will initially be offered to a 100 prisoners across England before being rolled out across the wider prison estate.

“Prisons like HMP Ford in West Sussex partner with sectors facing staffing concerns — including construction, hospitality and agriculture — with a number of offenders also training up as HGV drivers.

The scheme will see hundreds of prisoners start an apprenticeship by 2025, with pre-apprenticeship training offered to thousands more — preparing them for a full apprenticeship scheme or a higher skilled job on release.”

Post Office Scandal

Public hearings begin

This week the Human Impact hearings of the statutory Post Office Horizon IT Inquiry begin. Given the number of victims affected, this may take some time.

Meanwhile, Nick Wallis on his blog about the scandal has revealed a rather astonishing discovery: the senior “ judicial figure or barrister” who was alluded to by Lord Grabiner QC, leading counsel for the Post Office, as having lent their support to its application for the judge in the group action, Fraser J, to recuse himself over alleged bias, was apparently none other than (gasp), Lord Neuberger, former President of the Supreme Court. Lord Neuberger is in the same chambers as Lord Grabiner, and continues to sit as an occasional judge, most controversially in Hong Kong, but the idea that he would have supported an application by the Post Office to silence a judge who had made damning findings against it — an application which the Court of Appeal described as “misconceived”, “fatally flawed”, “untenable” and “absurd” — is, well, surprising.

One is bound to ask on what basis the advice, if such it was, had been given. Was he in possession of all the evidence? If not, how formally was he tendering his support for what now looks like a bogus attempt to derail legitimate litigation?

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

CONFLICT OF LAWS — Jurisdiction under European Union Regulation — Special jurisdiction: JW v LOT Polish Airlines, 03 Feb 2022 (Case C-20/21); EU:C:2022:71; [2022] WLR(D) 73, ECJ

COSTS — Discretion of court — Costs following event: Deutsche Bank AG London v Comune di Busto Arsizio, 04 Feb 2022 [2022] EWHC 219 (Comm); [2022] WLR(D) 74, QBD

EMPLOYMENT — Working time provisions — Paid annual leave: Smith v Pimlico Plumbers Ltd, 01 Feb 2022 [2022] EWCA Civ 70; [2022] WLR(D) 59, CA

EUROPEAN UNION — Public procurement — Contract awards procedure: Advania Sverige AB v Dustin Sverige AB, 03 Feb 2022 (Case C-461/20); EU:C:2022:72; [2022] WLR(D) 72, ECJ

HUMAN RIGHTS — Discrimination — Similar relevant status: R (CN) v Secretary of State for Health and Social Care, 04 Feb 2022 [2022] EWCA Civ 86; [2022] WLR(D) 68, CA

LANDLORD AND TENANT — Assignment of Lease — Consent: Gabb v Farrokhzad, 03 Feb 2022 [2022] EWHC 212 (Ch); [2022] WLR(D) 77, Ch D

NEGLIGENCE — Duty of care — Dental practice: Hughes v Rattan, 04 Feb 2022 [2022] EWCA Civ 107; [2022] WLR(D) 64, CA

PRACTICE — Court of Appeal (Civil Division) — Non-attendance: Leave EU.Group Ltd v Information Comr, 08 Feb 2022 [2022] EWCA Civ 109; [2022] WLR(D) 76, CA

SOCIAL SECURITY — Child tax credits — Entitlement: R (DK) v Revenue and Customs Comrs, 08 Feb 2022 [2022] EWCA Civ 120; [2022] WLR(D) 75, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

NIPC Law: Damages — Dr Reddy’s Laboratories (UK) Ltd v Warner-Lambert Co LLC [2021] EWHC 2182 (Ch); [2021] Bus LR 1496; [2021] WLR(D) 463, Ch D

The Justice Gap: ‘Under Lord Reed, we’re seeing a Supreme Court that’s increasingly losing its way’: R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3; [2022] WLR(D) 65, SC(E)

Free Movement: “Chen parent” could claim child benefit once daughter had permanent residence: FE v Her Majesty’s Revenue and Customs (CHB) (#)[2022] UKUT 4 (AAC), UT

RPC Perspectives: Game over for hyperlinking sites, following Nintendo’s recent blocking order success: Nintendo Co Ltd v British Telecommunications Plc [2021] EWHC 3511 (Ch), Ch D

UK Human Rights Blog: Supreme Court invited to consider secondary victim claims: Paul v Royal Wolverhampton NHS Trust [2022] EWCA Civ 12; [2022] WLR(D) 47, CA

Other recent publications

The common law and the European Convention on Human Rights: Do we need both?

One of the overall messages to emerge from the consultation paper on changes to the Human Rights Act is that, while the UK should remain a party to the ECHR, greater emphasis should be placed on domestic sources of human rights, including the common law. (See Lord Carnwath’s speech, above.) In another article on Public Law for Everyone, Prof Mark Elliott continues his discussion on the proposal for a British Bill of Rights with a consideration of the “overlapping and complementary systems for protecting human rights” under the common law and the convention.

Climate Change and the Rule of Law(yers)

Lawyers are everywhere when it comes to climate change, whether they realise or not, says Prof Steven Vaughan on Lawyer Watch. While lawyers are acting for their clients they are also professionals with a commitment to the public interest and the rule of law. But do they focus more on the former and less on the latter? Vaughan discusses important issues about how professional independence manifests in the context of climate change.

Is jury trial at risk?

Joshua Rozenberg on A Lawyer Writes wonders why the government believes “there may be scope to recognise trial by jury” in the bill of rights that the justice secretary, Dominic Raab MP, wants to introduce as part of the reform of the Human Rights Act.

The Metaverse: Three Legal Issues we need to address

In an article reposted on Inforrm’s blog, Pin Lean Lau of the Centre for Artificial Intelligence: Social & Digital Innovations, Brunel University London, asks: who or what governs the metaverse? “The way I see it, there are three key areas which, at this stage, are legally murky.” They are, in a nutshell, transactions in a boundless marketplace, using digital currency; data protection; and user interactions.

And finally…

Tweet of the week

is for all those late night legal twitterati who can’t quite drag themselves away from the screen.

Who else feels seen?

Time to call it a day! Thanks for reading, and thanks for all your tweets and links. Keep safe and well.

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 Skitterphoto from Pexels.