Weekly Notes: legal news from ICLR, 14 July 2023
This week’s roundup of legal news includes a roundup of current inquiries and their problems; the international promotion of the rule of law; plus recent case law and commentary.… Continue reading
Inquiries: so many questions (image via Shutterstock)
Public Inquiries
Recently we included an item here about retired judges, what they do, and how it might be regulated. But of course one of the main things senior retired judges (as well as serving judges) can do is chair public inquiries. A number of them are doing just that. Here is a roundup of some of those ongoing inquiries and the problems they currently face.
Covid-19 Inquiry
The independent public inquiry set up to examine the UK’s response to and impact of the Covid-19 pandemic, and learn lessons for the future, should now be allowed to see unredacted documents from the heart of the government at the time, including former prime minister Boris Johnson’s WhatsApp messages with advisers, diaries and notebooks. This follows the rejection, by the High Court, of a claim by the Cabinet Office of the decision of the inquiry chair, retired Court of Appeal judge Baroness Heather Hallett, to request the documents.
In R (Cabinet Office) v Chair of the UK COVID-19 Inquiry [2023] EWHC 1702 (Admin); [2023] WLR(D) 302, the Divisional Court held that the notice issued by the inquiry chair under section 21 of the Inquiries Act 2005 was valid, because it had been served to require the production of documents that “relate to a matter in question at the inquiry”. The fact that the section 21 notice might yield some irrelevant documents did not invalidate the notice or mean that the section 21(2)(b) power could not be lawfully exercised. Nor did it make the request irrational, in judicial review terms.
The court added that if the Cabinet Office were concerned about producing particular material they could always make an application pursuant to section 21(4) that it would be unreasonable to produce material which did not relate to a matter in question at the inquiry.
The Attorney General, Victoria Prentice KC MP, defended the decision of the government to challenge a request from an inquiry which the government had itself set up. It was important, she said, to make sure the law was clear: see Law Society Gazette, AG defends judicial review over Covid-19 inquiry messages
However, there remains a problem with the evidence on Boris Johnson’s own phone. Having stopped using it in 2021, on the basis of security advice lest it be hacked, he claims not to remember the passcode. This could be almost as unfortunate as accidentally dropping the phone in the North Sea, which was the excuse given for the absence of critical evidence in a recent libel case.
Post Office Horizon IT scandal
Perhaps not surprisingly, the company whose conduct in prosecuting its own people for errors caused by an IT system it knew to be faulty has, in the course of a public inquiry into the resulting miscarriages of justice, failed to conduct itself in a fit and proper manner. In particular, among a catalogue of cockups, conspiracies and coverups, it was found last week to have failed to disclose relevant evidence to the inquiry. That company is, of course, Post Office Limited.
The public inquiry into the Post Office Horizon IT scandal announced last week that hearings scheduled for 6 and 7 July were being postponed because the Post Office had failed to disclose potentially important evidence. The inquiry chair, retired High Court judge Sir Wyn Williams, had been due to hear evidence from former Fujitsu engineer, Gareth Jenkins. The documents were relevant to his evidence. Jenkins will now have be called to a hearing later in the year.
Counsel to the Inquiry, Jason Beer KC, set out a number of failings of the Post Office, including only disclosing 95 documents to the Inquiry last week that related to Mr Jenkins in some way and should previously have been disclosed to the Inquiry. The Post Office has apologised to the Inquiry for sending these documents so late. Sir Wynn has issued formal Directions to the Post Office, requiring that the company urgently supply documents identified as part of a disclosure “remediation” exercise it is undertaking.
The failure was all the more egregious — yet all the less surprising perhaps — given that the inquiry is looking into conduct a substantial element of which is a tendency by the Post Office not to disclose relevant material at the relevant time in the interests of justice. It is in essence a compound failure, if not worse.
As Joshua Rozenberg explains on A Lawyer Writes: Post Office gets it wrong again
For more on this inquiry, see Prof Richard Moorhead’s Thoughts on the Post Office Scandal and author Nick Wallis’s Post Office Scandal blog. Wallis has also just written an update in The Times, The Post Office: time drags on and the scandal gets bigger and bigger
Undercover Policing probe
At the end of last month the chair of the Undercover Policing Inquiry, former High Court judge Sir John Mitting, published the Inquiry’s Tranche 1 interim report.
The report covers Tranche 1 of the Inquiry’s investigations: “Special Demonstration Squad officers and managers and those affected by deployments (1968–1982)”, across 14 years of undercover policing activity by the Met Police’s Special Operation Squad/Special Demonstration Squad. It sets out the chair’s assessment of the history of the unit and draws conclusions about the purposes for which it was set up, continued to operate and the justification for doing so.
As part of its terms of reference, the Inquiry seeks to identify suspected miscarriages of justice that might have occurred due to an undercover policing operation or an operation not being disclosed when it should have been. An initial batch of suspected miscarriages of justice was referred in June 2021. Last week, the Inquiry referred a second set of suspected miscarriages of justice, identified through its investigations, to a dedicated panel set up by the Home Office. Following the referrals, the panel will consider whether further action is required, which could include referral to the Criminal Cases Review Commission.
For a general background explainer, see The Guardian, ‘Spy cops’ scandal: what is it and why was public inquiry set up?
See also the SpyCops website, which tells the story from the victims’ point of view.
Grenfell Tower limbo
Also at the end of last month the Grenfell Tower Inquiry chaired by retired Court of Appeal judge Sir Martin Moore-Bick, published its latest update on progress. It is currently drafting its report on Phase Two of the inquiry, which covers the refurbishment of the tower, the testing and marketing of cladding panels, the tower’s management, local and central government response to the incident, the response of the Fire Brigade, building regulations and evidence from victims and the bereaved. Five years on from the tragedy, the wait for justice has been agonising.
In a secondary scandal, thousands of homeowners still remain trapped in dwellings they cannot sell and in some cases must spend exorbitant sums protecting because of the risk from insufficiently fire-resistant cladding.
A year ago, the law was changed to require manufacturers of faulty cladding to pay for the refurbishment of affected buildings, rather than owners and residents; but according to a recent report in The Sunday Times, many have failed to do so: Cladding giants chased for millions spent making flats safe.
“Meanwhile a merry-go-round of buck-passing and bureaucracy carries on between manufacturers, developers and freeholders. The government has spent only 17 per cent (£1.5 billion) of the £9.1 billion it pledged in grants to fix buildings. Yet small buy-to-let landlords go bankrupt, trapped children become teenagers, and homeowners die without justice.”
Infected Blood inquiry
This month the Infected Blood Inquiry chaired by retired judge Sir Brian Langstaff is taking evidence regarding the Government’s response to the use of infected blood and blood products and the question of compensation. It will hold an additional week of hearings, beginning on Monday 24 July.
The inquiry was set up to examine the circumstances in which people treated by National Health Services in the United Kingdom from the 1970s onward were given infected blood and infected blood products; how many were affected; the diseases to which they might have been exposed; the impact on their lives; the government response, and a number of related matters.
On 12 July it published a short report by the statistics expert group. Members of the statistics expert group gave evidence to the Inquiry on 9 November 2022. During their evidence they were asked questions about overall mortality and their recommendations for data collection. The report provides updated figures for the total number of deaths from 1970 to 2019 that can be attributed to infected blood or blood products. In addition, the report contains recommendations on how the collection of data on blood-borne diseases can be improved.
You can read the full report here.
Afghanistan Inquiry
This inquiry hasn’t begun yet, but already its chair, Lord Justice Haddon-Cave, is being asked by military police to withhold information from public view — a move objected to by the BBC and other media, as Joshua Rozenberg reports: Will Afghan inquiry be public at all? Inquiry chair considers whether to grant sweeping restrictions.
Under the terms of reference, the inquiry is tasked with investigating allegations that between 2010 and 2013 British armed forces engaged in service in Afghanistan were involved in extra-judicial killings, that these were covered up and that investigations by military police were inadequate. The Defence Secretary, Ben Wallace has confirmed in a statement to Parliament that the allegations relate to the conduct of UK Special Forces.
This an independent statutory inquiry under the 2005 Inquiries Act. The full terms of reference can be found on the inquiry’s documents page.
Haddon-Cave will give his ruling on the restrictions on public information later.
International law
Rule of law
On 10 July, Attorney General Victoria Prentis KC MP delivered a speech to the Institute for Government titled ‘The Rule of Law and Effective Government’. As she made clear in her introductory remarks, while most people agree on the broad ingredients of the Rule of Law, within the domestic sphere, there are differences over the extent to which it covers or may conflict with certain external obligations, particularly at state or international level.
“The rule of law is the principle that the law applies equally to everyone, that no one is above the law, and, in particular, that the Government must comply with the law and that power is not exercised arbitrarily. It requires that all persons have access to courts that are independent. These courts must resolve disputes objectively in accordance with legal principles. Laws should be accessible, intelligible, clear, and predictable.
I do think it is important to acknowledge differences in conceptions of the rule of law, particularly where it relates international obligations. Wider conceptions of the rule of law, such as that advanced by Lord Bingham, include compliance by the State with its obligations in international law and the guarantee of basic fundamental rights, such as the right to a fair trial, open justice, and freedom of speech.
Those who prefer a narrower definition do not consider these aspects to be required by the rule of law. While there is a conceptual debate about whether the rule of law includes compliance with international law — and my own view in that debate aligns with Lord Bingham — it is certainly clear that the UK must comply with its international obligations and an important part of my role is to ensure that we do so.”
She went on to discuss the role of difference branches of government and her own particular role as Attorney in the maintenance of the rule of law (which she said, perhaps pointedly in the light of recent events, sometime t involves “making yourself unpopular by telling other Ministers that they cannot pursue certain policies and legislation because these are incompatible with the law”).
The speech as a whole is well worth reading.
International Community to help rebuild Ukrainian legal system and champion rule of law
Meanwhile, in Japan, the justice minister of the G7 nations met last week to discuss the rule of law. According to the government announcement, his is the first time Justice Ministers from the Association of Southeast Asian Nations (ASEAN) would be joining their G7 counterparts at the meeting in Tokyo.
The UK’s Lord Chancellor and Justice Secretary, Alex Chalk, met with his international counterparts to promote the rule of law and help rebuild Ukraine’s justice system. The UK will be supporting G7 initiatives to aid the Ukrainian justice system, including the development of a new Anti-Corruption Taskforce. The Government will also announce plans to fund a study into challenges affecting the Ukrainian justice system currently under pressure due to the impact of the Russian invasion and identify reforms to address these problems.
While at the summit in Tokyo, Chalk and his Japanese counterpart, Justice Minister Ken Saitō, signed the first-ever UK-Japan agreement to share justice expertise and strengthen collaboration between their two justice ministries.
Other recent items
Legal Uncertainty and the Levelling-Up and Regeneration Bill 2023
Post by Rhiannon Ogden-Jones on the UK Constitutional Law Association blog explaining why, despite its far-reaching ambitions for reform, the Bill known as LURB actually “creates legal uncertainty, painting broad brushstrokes over many of the complex legal issues it engages with”. She addresses in turn the four types of legal uncertainty — of definition, of amendments, of discretion, and of regulation — identifiable in the LURB.
Issues in Crypto Currency Fraud Claims — An Update
Speech by Judge Mark Pelling KC, Judge in Charge, London Circuit Commercial Court, at the ThoughtLeaders4 Annual Crypto in Disputes Conference. He flags up in particular (1) the relationship between the current value of crypto currencies or “coins” and the number of claims being pursued; and (2) the increasing number of claims involving institutional claimants as well as individuals “seduced into investing in schemes usually by internet presentations”, which he says suggests a more sophisticated approach by fraudsters.
(What we notice, by the way, is the number of cases involving crypto assets which are pursued agains P.O. or Persons Unknown. Truly, this is a cryptic world of shady dealings. For once those stock images of hooded individuals in faux-Fawkes masks seem apt.)
Independence and the public interest: the role of a legal services regulator
Talk by Mark Neale, Director General, Bar Standards Board on 3 July 2023, explaining how he sees the role of a regulator, primarily in championing the public interest while remaining independent both of the profession and of other regulators.
Independent review of the Investigatory Powers Act 2016
Having been appointed in January to conduct an independent review of the IPA 2016, Lord David Anderson KBE KC has now published his report, outlining his findings and recommendations. His review focused on the effectiveness of the bulk personal dataset regime; the criteria for obtaining internet connection records; the suitability of certain definitions within the act; and the resilience and agility of warranty processes and the oversight regime. It also addresses specific areas for change identified as a priority in a Home Office Report, following its post-legislative review, with a view to informing proposals for future legislation.
The Neidle and the damage done
Post by Prof Richard Moorhead on his Lawyer Watch blog about a report by tax transparency campaigner Dan Neidle naming and shaming a tax KC for advice on a fraudulent tax scheme. Although the conduct described by Neidle raises ethical issues, Moorhead’s concern in his post is directed to the question of naming the lawyer concerned. “As I have often thought about when to name individuals associated with ethics problems, sometimes doing so, sometimes not, I I thought I would add my two pennyworth.”
(Of course one reason for naming a particular person, in the light of this week’s events, might be to avoid suspicion falling on others of the same description. If Neidle had merely alluded to an unnamed “tax silk” there’s no knowing whom the twitters and socials might have speculated on, as they did with “top BBC presenter”.)
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
ARBITRATION — Arbitrator — Jurisdiction: National Iranian Oil Co v v Crescent Petroleum Co International Ltd, 13 Jul 2023 [2023] EWCA Civ 826; [2023] WLR(D) 306, CA
BANKING — Duty of care — Execution of customer’s orders: Philipp v Barclays Bank UK plc, 12 Jul 2023 [2023] UKSC 25; [2023] WLR(D) 305, SC(E)
CHILDREN — Care order — Application to discharge: In re G and H (Leave to Revoke Placement Order), 06 Jul 2023 [2023] EWCA Civ 768; [2023] WLR(D) 296, CA
CONTEMPT OF COURT — Committal application — Court of Protection proceedings: Esper v NHS North West London Integrated Care Board, 10 Jul 2023 [2023] EWCOP 29; [2023] WLR(D) 300, Ct of Protection
CRIME — Sentence — Special custodial sentence: R v WJ, 06 Jul 2023 [2023] EWCA Crim 789; [2023] WLR(D) 303, CA
EDUCATION — School — Exclusion: R (TZA) v A Secondary School, 11 Jul 2023 [2023] EWHC 1722 (Admin); [2023] WLR(D) 304, KBD
JUDICIAL REVIEW — Legitimate expectation — Consultation: R (Eveleigh) v Secretary of State for Work and Pensions (Binder v Secretary of State for Work and Pensions), 11 Jul 2023 [2023] EWCA Civ 810; [2023] WLR(D) 301, CA
JUDICIAL REVIEW — Public authority — Legitimate expectation: R (Kanu) v Secretary of State for Foreign, Commonwealth and Development Affairs, 07 Jul 2023 [2023] EWCA Civ 796; [2023] WLR(D) 297, CA
PRACTICE — Parties — Litigation friend: Kirishana v Major, 30 Jun 2023 [2023] EWHC 1593 (KB); [2023] WLR(D) 292, KBD
TORT — Cause of action — Defective premises: BDW Trading Ltd v URS Corpn Ltd, 03 Jul 2023 [2023] EWCA Civ 772; [2023] WLR(D) 299, CA
TRIBUNAL — Statutory — Tribunal of inquiry: R (Cabinet Office) v Chair of the UK Covid-19 Inquiry, 06 Jul 2023 [2023] EWHC 1702 (Admin); [2023] WLR(D) 302, DC
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Local Government Lawyer: Appeals against Housing Act 2004 decisions as a “rehearing”: Hussain (Nasim) v Waltham Forest London Borough Council [2023] EWCA Civ 733; [2023] WLR(D) 278, CA
Local Government Lawyer: Selective licensing offences and the level of civil penalties: London Borough of Waltham Forest v Adil Rahman [2023] UKUT 139 (LC), UT
UK Supreme Court Blog: New Judgment: R (Turani) v Secretary of State for the Home Department [2023] UKSC 23, SC(E)
Inforrm’s Blog: The Court of Appeal decision in Banks v Cadwalladr. Inference of serious harm in the context of online publications past their peak and after the public interest defence falls away: Banks v Cadwalladr [2023] EWCA Civ 219; [2023] WLR(D) 105, CA
Out-Law: Landmark Sizewell C ruling instructive for projects of all shapes and sizes: R (Together Against Sizewell C Ltd) v Secretary of State for Energy Security and Net Zero [2023] EWHC 1526 (Admin), KBD
UK Constitutional Law Assn: Reconsidering Ouster Clauses: The High Court’s Decision in Oceana: R (Oceana) v Upper Tribunal (Immigration and Asylum Chamber) [2023] EWHC 791 (Admin), KBD
Law Society Gazette: Supreme Court backs civil law test for police disciplinary proceedings: R (Officer W80) v Director General of the Independent Office for Police Conduct [2023] UKSC 24, SC(E)
Law Society Gazette: Appeal allowed despite ‘disastrously handled’ litigation: Li v Simons [2023] EWHC 1626 (Fam), Fam D
Free Movement: Tribunal must consider Home Office decisions in full even when not explicitly relied on by representative: Shyti v Secretary of State for the Home Department [2023] EWCA Civ 770, CA
Free Movement: High Court rejects challenge to EU Settlement Scheme dependency rules for children: R (Ali) v Secretary of State for the Home Department [2023] EWHC 1615 (Admin), KBD
Free Movement: No visa for Afghan interpreter accused of leaking sensitive information: R (FMA) v Secretary of State for the Home Department [2023] EWHC 1579 (Admin); [2023] WLR(D) 281, KBD
Free Movement: Reflections on the Court of Appeal’s Rwanda decision: R (AAA (Syria)) v Secretary of State for the Home Department [2023] EWCA Civ 745; [2023] WLR(D) 289, CA
2 Hare Court: Case Note on the Supreme Court case of R (Maguire) v Blackpool and Fylde Senior Coroner [2023] UKSC 20; [2023] 3 WLR 103, SC(E)
Nearly Legal: Contractual costs in the Tribunal & County Court, with a guest appearance: Crescent Trustees Limited v Behjat (unreported); Transcript PDF, County Ct
And finally…
Thread reckoning
Instead of a tweet, but without a link (we don’t know how to), here is this week’s top post on the new Threads app:
That’s it for now. Thanks for all your tweets and toots and linkedy-links. (Threads too, soon. Let’s see how it goes. Or doesn’t.) Go safely 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.