Brexit

With superSPAD Cummings finally going, and hints of a reshuffle not just among the admin staff, media sources and string-pullers behind the scenes at No 10 but in the Cabinet as well, we enter the final furlong (or 201.168 metres) of the negotiations for a trade deal with the EU before the end of the transition period. David Frost remains the shuttle at our end of the loom, but the tapestry could still unravel unless the last few threads are finally tied up. According to The Brussels Times:

“The United Kingdom must retain control of its laws, trade and water after its withdrawal from the European Union and will not budge on these issues, London’s Chief Negotiator, David Frost, warned on Sunday ahead of a new cycle of talks in Brussels on the future relationship with the EU.”

The newspaper pointed out that:

“There are at least three sticking points: competition guarantees requested by London, European access to Britain’s rich fishing grounds, and dispute settlement in the future agreement.”

Lord Frost himself, on Twitter, said:

If no deal is done in time for the end of the transition period, the continuation deal that currently exists will expire, and the UK will be left to trade with the EU under basic WTO rules, with a range of quite disadvantageous tariffs. That doesn’t mean there won’t eventually be a deal, just as the UK now has its own deal with Japan and a number of other countries; but it may just take longer to negotiate.

See also: National Audit Office, The UK border: preparedness for the end of the transition period

Meanwhile, in other trade deal news, as reported by the BBC, the massive RCEP 15-nation Asia-Pacific trade deal has just been concluded, involving 10 Southeast Asian countries, as well as South Korea, China, Japan, Australia and New Zealand. The deal excludes the USA, which also withdrew from the Trans-Pacific Partnership (TPP) in 2017, shortly after outgoing President Trump took office. The new free trade bloc will be bigger than both the US-Mexico-Canada Agreement and the European Union.

Now that, ladies and gentlemen, is a deal.

Courts

The latest weekly update from HMCTS contains the following notices:

  • Updated: Professional Court User (PCU) WiFi will no longer be available in our buildings from 15 January 2021. Users will need to register for a GovWiFi account before this date. Simply Text ‘Go’ to 07537417417 to get connected. This is a one time registration only. You will then be able to connect wherever GovWiFi is available. If users have any technical difficulties, they should contact the BT Service Desk on 0845 600 6909.

Both David Allen Green on the Law and Policy Blog, Making sense of the reported proposals of the government for “overhauling” the Supreme Court, and Joshua Rozenberg, on A Lawyer Writes, Who’s running the country? examine proposals for reform of the UK Supreme Court, aired in the Sunday Telegraph over the weekend. The proposals appear to be derived from a paper written in July for the Policy Exchange judicial power project by Professor Derrick Wyatt QC, whom Rozenberg describes as “a distinguished former academic and practitioner”, and says he probably hadn’t intended it to be taken as an “oven-ready reform”. In an earlier comment on that paper (Let’s abolish the Supreme Court), Rozenberg said:

“Wyatt thinks the risk of excessive judicial activism at the final stage of the UK appellate process could be ‘tempered’ by transferring the Supreme Court’s functions to panels of five or more senior judges assigned on a case-by-case basis from judges in the existing appellate courts — the Court of Appeal of England and Wales, the Court of Appeal of Northern Ireland, and the Inner House of the Court of Session.”

The Telegraph article suggested that court’s name might be changed to avoid the mistaken assumption that it shared the same constitutional function as the Supreme Court of the United States (which can strike down legislation). It’s not at all clear that such an assumption is widely shared in this country, and there are plenty of other Supreme Courts around the world that operate in different ways. (This kind of tinkering with branding and signposting is very Nouveau Tory, though, like changing the name of the Human Rights Act, or enacting legislation to restate the bleedin’ obvious.)

The Times covered the Telegraph story with details of a riposte by Lord Sumption, who described the idea as “a cheap act of revenge” for a few lost cases. “Abolishing or downgrading the most prestigious common law court in the world is an extraordinary act of self-laceration which can only reduce our influence and the attraction of London as a dispute resolution centre,” said the former Supreme Court Justice and top commercial silk.

While cautious about what it might portend, David Allen Green is fairly scornful of the article itself and of what appears to be some clumsy political briefing behind it:

“Maybe one should not take a minor example of performative politics in a Sunday newspaper too seriously. The last thing this utter shambles of a government — facing a pandemic and a Brexit when it would not be able to deal properly with either, let alone both — is up to doing is significant constitutional reform. But the noise is still important. And the sound one can hear is that the government as a whole still has an illiberal temper and this indicates that, despite the reported departure of Dominic Cummings, the government still sees it as a priority that it should dismantle any parts of the state that can actually hold it to account.”

Crisis in criminal courts

Reports of a looming / worsening crisis in the criminal justice system have accumulated almost as fast as the backlog of trials (now approaching 50,000 in the Crown Court). Last week the Lord Chief Justice, Lord Burnett of Maldon told the Justice Select Committee that what was needed was must better funding for the entire system:

“I would be disappointed — that is a very mild word — should funding from the Treasury to the MOJ not allow for that because, if it does not allow for that, the danger is that much larger backlogs are baked into the system.

My view for next year in all jurisdictions is, rather than the traditional approach to funding, which is to look at what you have spent this year and nudge it up a bit or, dare I say it, as it is suggested occasionally, to nudge it down a bit, there has to be a realistic assessment in every jurisdiction of the likely expectation of work coming into the system. In addition, there has to be a clear understanding of the additional backlogs that we have to clear.”

He made the same point in his annual review to Parliament, The Lord Chief Justice’s Report 2020, published earlier this month, where he said:

“in determining the funding arrangements for HMCTS for the future, the starting point should be a realistic assessment of the outstanding work which needs to be done together with an evaluation of the likely work coming into the system. To recover from COVID and then make progress in dealing with what were unsustainable backlogs in any event, a concerted effort will be needed to use the court estate and judicial resources, including additional use of fee paid judges, to dispose of cases which are ready for hearing.”

A very stark depiction of the consequences, should such funding not be forthcoming, was provided by a report published at the end of last month by Crest (who describe themselves as “The UK’s only consultancy dedicated to crime and justice”). Their analysis suggests that “criminal court capacity in England and Wales will need to double in order to stop the backlog of cases growing to an unmanageable level over the next four years”.

According to their report, Impact and legacy of Covid-19 on the CJS — Modelling overview:

“The conclusion of our modelling is stark: Covid-19, combined with long-standing legacy issues and the police uplift is leading the criminal justice system to the brink of a ‘tipping point’, beyond which it may cease to function in a meaningful sense”.

Based on official data, Crest’s modelling projects that current trajectories will mean:

  • The backlog in the Crown Court will quadruple from c. 45,500 cases in 2019 to c. 195,500 cases by 2024.
  • The backlog in the magistrates’ courts will rise from c. 58,600 cases in 2019 to 580,300 cases by 2024 — increasing by a factor of ten.

Crime

“Murderers and paedophiles who hold back information on their victims could face longer behind bars”, announced the Ministry of Justice, after the Prisoners (Disclosure of Information About Victims) Act — known commonly as ‘Helen’s Law’ — received Royal Assent on 4 November 2020. That, at any rate, was the intention of campaigners led by Marie McCourt, mother of Helen McCourt who was murdered in 1988 but whose killer has never revealed her body’s location. The Act now places a legal duty on the Parole Board for the first time to consider the anguish caused by murderers who refuse to disclose the location of a victim’s body when considering them for release.

The Parole Board issued a statement saying that it welcomed the introduction of the Act “which puts our guidance and current practice into statute”. That suggests that it was already doing everything the Act now requires it to do, and will make no difference to the way the board decides cases. Moreover, the MoJ admitted in its press release that “Courts can already pass tougher sentences for murderers who deliberately conceal the location of a body”.

It all seems rather pointless, as Joshua Rozenberg observed in his post on A Lawyer Writes, A law that makes no difference — What kind of a tribute is that to Helen McCourt?

“Take the case of Helen McCourt, in whose memory the law was named. In 1988, she was murdered at the age of 22 by Ian Simms. Her body was never found. Simms was released on licence earlier this year.

It’s true he could have been released in 2004 after serving his minimum term of 16 years. It’s true that he spent longer behind bars — in his case, twice as long. But the new legislation would not have required him to serve any longer.

How do we know that? On 1 September, the High Court refused Helen McCourt’s mother permission to bring judicial review proceedings against the Parole Board. The board’s decision to order Simms’s release involved no arguable public law error.”

That’s a reference to the case of R (McCourt) v Parole Board for England And Wales [2020] EWHC 2320 (Admin). In response to an argument that the Board should have waited till what was then a Bill came into force, the Divisional Court said, at para 64:

“it would require only that the panel take into account Simms’ non-disclosure and what they considered were the reasons for it. As the panel said, they had taken these into account anyway, so the enactment of the Bill would not have made any difference.”

Recent publications and broadcasts

Brexit and the Flaws of the Delegated Legislation System

This podcast via LawPod UK offers a very good introduction to delegated legislation as a topic, including the important distinction between negative and affirmative statutory instruments, followed by a timely legal analysis on the lack of proper scrutiny or procedure for amendment of much secondary legislation. Lord Anderson of Ipswich QC joins podcast host Emma-Louise Fenelon in a discussion with Joe Tomlinson and Alexandra Sinclair, authors of the new Public Law Project report:

Plus ça change? Brexit and the flaws of the delegated legislation system

This is the report from the Public Law Project, published last month, and discussed in LawPod UK’s podcast.

Remote Hearings in the Family of Courts of England and Wales: what the research shows

Eve French, via the Transparency Project blog, discusses the impact of the pandemic on the cases, clients and barristers of 4PB chambers, where she has recently completed a mini-pupillage.

Civil law, religion and marriage in the United Kingdom: a long read

What began as a handout for the Cardiff LLM in Canon Law, a post by Frank Cranmer on the Law & Religion UK blog about the law on the formation of marriage — “weddings law” — rather than matrimonial law more generally, including the historical background and jurisdictional variations around the UK.

Book Review: Duncan and Neill on Defamation, 5th Edn, Public interest defence ‘needs flexibility on meaning’

Review by Mike Dodd, co-editor (with Mark Hanna) of McNae’s Essential Law for Journalists, of the libel bible. He points out that the title of this new edition, the fifth, has been changed to become Duncan and Neill on Defamation and other media and communications claims.

“This reflects the increasing tendency of claimants to bring claims over publications about which they are aggrieved in conjunction with other causes of action such as data protection or mis-use of private information, or even in place of defamation.”

That is perhaps also reflected in the creation of the new Media and Communications Law list in the Queen’s Bench Division, currently headed by Warby J, in place of the old Jury List.

Dates and Deadlines

IALS — 19 and 20 November 2020

The Institute of Advanced Legal Studies Information Law and Policy Centre is holding its digital Annual Lecture and Conference ‘AI and the Rule of Law: Regulation and Ethics’ this week. Lord Clement Jones CBE, will be delivering this year’s Annual Lecture entitled: ‘AI. Time to Regulate?’

For more details, see full programme.

Law Society — 25 to 26 November 2020

The Conference was originally scheduled to take place at the Law Society’s Hall, however, due to the ongoing COVID-19 situation, the event has been moved online. This virtual Conference over two days comprises a three-part webinar series covering:

  • Offers to mediate: a new costs weapon?,
  • using technology in litigation; and
  • a session on the disclosure pilot.

Each costs £45 individually but you can subscribe to the whole series for £90, plus VAT. See here for details.

And finally…

… or rather of the day: today being International Tolerance Day:

That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Take care 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.

Featured image: Brussel, The Atomium, photo by Raul Escorihuela on Unsplash