Our last roundup of legal news and commentary for the term and for the year includes the latest Brexit deal, plans for the MoJ and the courts, and some notorious recent cases.

Brexit

EU leaders approve last week’s deal

On 15 December the European Council (the Heads of Government of EU member states) signalled its agreement with the position arrived at in the Brexit negotiations in last week’s last minute deal (see Weekly Notes, 11 December 2017).  A joint proposal from the UK and the European commission to move the talks on has been accepted. The talks can now begin to discuss a possible future trading relationship between post-Brexit UK and the rest of the EU, though such a deal may take longer to reach than the time remaining under the article 50 two-year notice period. This means some sort of transition period is almost certainly going to be needed, during which the UK will continue to be fully bound by EU law and regulations.

Reports in the press suggest that the EU leaders were relieved to have arrived at this position, and that the British prime minister, Theresa May, received a round of applause for her effort and endurance in getting this far, despite the bungling of her ministers. (See The Guardian, EU leaders agree Brexit talks can move on to phase two.)

Sir Jeremy Heywood, Cabinet Secretary and Head of the Civil Service, wrote a blog post, EU exit negotiations – moving on to the next phase, in which he praised the work of the many civil servants who have helped to make this happen: “I want to offer a sincere and heartfelt thank you to everyone in HMG who has contributed to this outcome.”

The European Council has now issued its guidelines for the next phase, which Obiter J discusses in a post on Law and Lawyers entitled Brexit ~ Guidelines for Withdrawal negotiations Phase 2 (with targeted link to the guidelines themselves).

Government defeated in Commons

The EU leaders seem to have been less concerned by the government’s defeat in last Wednesday’s vote on an amendment to clause 9 of the Withdrawal Bill than, say, the Daily Telegraph, which trotted out its line about “mutineers” and the Daily Mail, which had a petulant headline about “self-consumed malcontents”.

The amendment, known as “amendment 7”, was to give Parliament what the press have been calling a “meaningful vote’ on any exit deal agreed with the rest of the EU. But does it really do that? Some commentators have suggested there is less to it than meets the eye.

The amendment adds the words in italics to the original wording of clause 9(1) of the EU Withdrawl Bill:

(1) A Minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union.

But clause 9 can only apply if there is a withdrawal agreement; and even then, Parliament cannot change what the agreement says, it can only approve or not approve the deal. If there isn’t a deal, the UK will still crash out of the EU, by virtue of the article 50 two-year notice period (unless extended), on 29 March 2017. There just won’t be anything for Parliament to approve. That’s not to say it might not have, or insist upon having, a vote of some sort, regardless of clause 9(1) as amended. It could refuse to implement the deal, which would be awkward. Or, if the tide of opinion had changed by then, there could even be a vote of no confidence, bringing down the government and redrawing the political landscape. So the significance of Wednesday’s vote is, on this view, more political than legal. It lets the government know that it cannot afford to ignore the interests of the remainers, in the house and in the country, and that it’s not just the DUP’s confidence it needs to cultivate.

Writing in the Guardian, Schona Jolly pointed out that Most of the Brexit rebels are lawyers. Maybe experts are useful after all :

Grieve’s amendment was about legal process and proper order. Put another way, it was about the strength and stability of our laws, and our constitutional arrangements. It was about parliament having some say – even if not dramatic sway – while reducing the government’s power to do almost as it pleases.

David Allen Green writing in the FT thought the vote itself was “probably more “meaningful” than the eventual vote it created”. It was a sign that “Parliament is taking back control”. And, by making explicit the need for a vote by the UK Parliament as well as that of the EU, it made it more likely that there would eventually be soft Brexit.

“ No other final position sits comfortably within the three points of an EU27-UK agreed text, the European Parliament and the UK parliament.”

See also:

Obiter J, Law and Lawyers: The EU (Withdrawal) Bill amendment ~ don’t get too excited

Prof Mark Elliott, Public Law for Everyone, Does the Government defeat on clause 9 of the EU (Withdrawal) Bill mean Parliament has ‘taken back control’?

Brexit Time: Parliament Takes Back Control … or Does It?

UPDATE: Dominic Grieve, the so-called “Tory rebel” who proposed amendment 7, explains with legal clarity his reasons for doing so in an article in The Guardian (whose title reflects the personal consequences of doing so in the current toxic atmosphere) : I have received death threats, and I blame the vitriol of the pro-Brexit media 

Ministry of Justice

Single departmental plan

On 14 December the MoJ published its Single Departmental Plan setting out its objectives and how it would achieve them. The main objectives are

  1. A prison and probation service that reforms offenders
  2. A modern courts and justice system
  3. A Global Britain that promotes the rule of law
  4. A transformed department

The report sets out various targets and aspirations. To improve the prison service, it aims to recruit an extra 2,500 prison officers, provide speedier response to prison problems, and use more tailored interventions for certain types of offenders, and so forth. To improve the courts, it mentions some of the things being developed under the HMCTS Reform programme (discussed further below) but also to “Introduce legislation to modernise the courts system” – presumably to replace the bill that was lost in the wash-up before the snap election earlier this year. To “Protect vulnerable victims, witnesses and children” it proposes to increase the use of pre-recorded cross-examination in criminal courts, as well as to provide an “overarching strategy for victims of crime” and to develop “legislative proposals to tackle domestic violence and abuse” with the Home Office. To “Support the independent judiciary and their ability to attract the best and widest range of talent” it promises to “Conduct a major review of judicial pay through the Senior Salaries Review Body”. To help promote the legal service sector abroad, it promises to “Work to secure an effective post-exit framework with the EU for resolving cross-border commercial, civil and family disputes”. Finally, in relation to the department itself, there is a place to “Reduce our reliance on expensive properties in Whitehall by being a smarter, decentralised national organisation”. (So is it goodbye to Petty France, and hello to Salford or Cardiff perhaps?)

The report includes various statistics, which candidly show how things like self-harm in prisons and assaults on prison staff have dramatically increased in the last few years, while outstanding caseloads in the criminal courts have reduced of late, but disposal times in the family courts have started to creep up again.

Courts

Reform Roadshow at RCJ

The HM Courts and Tribunals Service held a roadshow at the Royal Courts of Justice last Monday to demonstrate some of the new online court functions developed as part of its massive Reform programme, and to get feedback from court users on some of the more challenging projects being undertaken.

There were working demos of

It was a cold evening, and the main hall of the RCJ is not the cosiest of venues, so most of the delegates sat round their tables still huddled in their coats, fortified with tea and coffee, as they listened to Susan Ackland-Hood, CEO of HMCTS, give a presentation with slides about the project so far and the three matters of discussion for this evening.

The three main topics of discussion were (1) Virtual Hearings; (2) Flexible Operating Hours; (3) Scheduling and Listing. Each table had between six and eight delegates (mainly solicitor, barrister and clerks) and one representative of HMCTS to record the feedback from the discussion. Key points were then fed back via the mic in short plenary discussions at the end of each of the three sessions.

We will write this up in more detail in a separate post.

Human Rights

Daily mail human rights reporting fiasco

Most readers of this blog will be familiar with the sadly predictable way the tabloid press twist the facts of human rights stories to fit their prejudicial agenda, so the Daily Mail’s screaming headline about an Iraqi detainee’s award of damages for breach of human rights will be greeted with weary unsurprise.

Nevertheless, as Shoaib Khan points out, the headlines give a seriously misrepresentative view of the case, Alseran v Ministry of Defence [2017] EWHC 3289 (QB), which is reported with rather more accuracy and less hysteria by the BBC:  Iraqis win damages for ‘ill-treatment’ by British soldiers. In respect of the case headlined by the Mail, it explained:

One of the men was awarded more than £30,000 by the court in London.

Abd Al-Waheed, who was arrested when British soldiers raided a house in the city of Basra, in February 2007, was given £15,000 in “respect of the beating” he suffered.

He was awarded another £15,000 for what the judge described as “the further inhuman and degrading treatment which he suffered, encompassing harsh interrogation, being deprived of sleep and being deprived of sight and hearing”.

And he was also compensated £3,300 for 33 days of unlawful detention.

According to the claimants’ lawyers, the ill-treatment included “soldiers taking turns running over the detainees’ backs and hooding them for periods of time”, the BBC added.

Adam Wagner also commented on Twitter, with a thread worth reading in full:

He concludes:

There has been controversy over some claims brought against the armed forces, after they were found to be spurious, as Adam notes. One prominent lawyer, Phil Shiner, founder of Birmingham law firm Public Interest Lawyers (PIL) and named human rights lawyer of the year in 2004, was struck off earlier this year after being found guilty of multiple professional misconduct charges. But that doesn’t mean they’re all spurious, and where they aren’t, the proper compensation needs to be paid.

Crime

Rape case disclosure failure

https://twitter.com/pjm1kbw/status/941595181920538624

Serious failings in the criminal justice system were revealed last week when a rape trial collapsed after it emerged that the police had failed to disclose evidence in their possession of messages on the complainant’s mobile phone – evidence which appeared to exonerate the defendant, which had been asked for by the defence, and which should have been listed by the CPS and wasn’t. The omission appears to have been picked up by the prosecuting counsel, Jerry Hayes on the opening day of the trial, after which the material was obtained and handed over to defence counsel, Julia Smart, who then spent hours going through it, before discovering hundreds of messages that supported her client’s claim that the admitted sex had been consensual.

According to The Times, the defendant, Liam Allan,

a criminology undergraduate at Greenwich University, had been warned that he would be jailed for at least ten years if found guilty after being charged with six rapes and six sexual assaults against a woman who told police that she does not enjoy sex. Mr Allan said the sex was consensual and that the woman was acting maliciously because he would not see her again after he started university. His lawyers had repeatedly been refused access to records from the woman’s telephone because police insisted that there was nothing of interest for the prosecution or defence, the court was told.

Hayes wrote about the matter himself, in The Times, saying it showed how “Treasury cuts have crippled justice system“. In this case, when told by the police officer that the evidence wasn’t relevant,

My alarm bells began to ring, as I hadn’t reviewed the material personally. I am of the old school and take the view that if the defence want to see evidence they should have it unless it’s just a fishing expedition. All 2,400 pages and 50,000 messages were handed over. It blew the prosecution case out of the water. Clearly the officer hadn’t reviewed it in any detail. He had failed in his duty of disclosure.

According to the Guardian, Scotland Yard [is] carrying out ‘urgent review’ after rape trial collapses.

For more detailed analysis, see:

Nicholas Diable, Defence Brief Disclosure: Liam Allan cleared of rape

Robin Murray, Minted Law blog: Disclosure Scandal and Near Miscarriage of Justice. We Warned You. You Didn’t Listen and Failed to Act.

Matthew Scott, Barrister Blogger, Liam Allan’s case shows why our criminal justice system is becoming a matter of national shame

Also tweet thread from Max Hardy:

Immigration

Rough sleepers from EU wrongly deported

A Home Office policy of deporting people from other EU member states who have been found sleeping rough on the streets of Britain, on the ground that they were abusing EU freedom of movement rights, has been held to be unlawful. Mrs Justice Lang, giving judgment in R (Gureckis) v Secretary of State for the Home Department [2017] EWHC 3298 (Admin) upheld a judicial review challenge by three EEA nationals to their removal under the Immigration (European Economic Area) Regulations 2016. The claims were brought by the Public Interest Law Unit at Lambeth Law Centre.

There is an excellent case comment on the Free Movement blog: NGO victory: Home Office policy on EU rough sleepers found unlawful

See also: Rights Info, Government Must Stop Deporting Homeless EU Citizens Says High Court

BBC: Deporting EU rough sleepers from UK unlawful, High Court rules

 

Inquiries

Grenfell tower: update

We reported on recent developments with the Grenfell Tower Inquiry in Weekly Notes – 4 December 2017. Since then, the most significant development has been the intervention of the Equality and Human Rights Commission, launching its own inquiry to examine whether the government and the Royal Borough of Kensington and Chelsea failed in their duties to protect life and provide safe housing.

The Guardian reports that the EHRC, “whose application to become a core participant in the official inquiry was rejected”,  “could foreshadow the official inquiry” being conducted by Sir Martin Moore-Bick, and beset with complaints that it is too technical and doesn’t have a panel representing the feelings and experience of the victims and their families. It seems a shame, though, that the EHRC could not work with, rather than in (apparent) competition against, the official inquiry. (On the other hand, there is already a criminal investigation under foot, so perhaps multiple approaches can work after all.)

There has also been a good piece in GQ magazine, by Tom Lamont, Trapped: The Grenfell Tower Story, “the untold story of what it felt like to fight that fire and to flee it”, which captures the views and experience of some of the victims and firefighters involved.

 

Law (and injustice) from around the world

America

Trump judicial nominee stumbles over basics

As the Atlantic subsequently explained,

on Thursday, Senator Sheldon Whitehouse, a Democrat from Rhode Island, shared a clip from a Judiciary Committee hearing on Wednesday. In the video, which went viral, Senator John Kennedy, a Louisiana Republican, dismantled Matthew Petersen, [a] district-court nominee.

In the same week as this humiliation, two other judicial nominations had to be withdrawn: one of them had publicly defended the KKK in a comment online and the other had a history of anti-LGBT comments, including speeches in which he said same-sex marriage would lead to bestiality and called transgender children evidence of “Satan’s plan.”  Having started well with his judicial nominations, notably in the appointment of Neil Gorsuch to the US Supreme Court, President Trump’s Formidable Judicial-Appointment Machine Starts to Sputter, commented the Atlantic.

These horror stories always seem symptomatic of the way many judicial posts in America are either elected or political appointed, as Spinning Hugo commented last month, in relation to another poorly qualified nominee.

Norway

Vote to decriminalise drugs

Norway has become the first Scandinavian country to decriminalise cannabis and other unlawful drugs following an historic vote by the Storting, Norway’s parliament, with a majority supported by the Conservatives (Hoyre), Liberals (Venstre), the Labor Party (Ap) and the Socialist Left (SV), reported the Independent last week.

This does not mean the drugs will be legalised (which would permit their open sale, as happens for some drugs in some countries); merely that their possession and use would be decriminalised, with the emphasis being on treatment for addiction rather than punitive measures, as the article, quoting a Norwegian publication, explains.

Sveinung Stensland, deputy chairman of the Storting Health Committee, told Norwegian publication VG: “It is important to emphasise that we do not legalise cannabis and other drugs, but we decriminalise. The change will take some time, but that means a changed vision: those who have a substance abuse problem should be treated as ill, and not as criminals with classical sanctions such as fines and imprisonment.”

And finally … Tweet of the week

comes from one of the latest batch of successful applicants for silk: Congratulations to him and all the new QCs.

 

That’s it for now, and for the year. Thanks for all your tweets and retweets, blog posts and comments, and have a great break. Weekly Notes will resume with the new term in January 2018.

In the meantime check out the other posts on this blog and, if you haven’t already done so, try out our fast new case search facilities by clicking on Home or ICLR.3 at the top of the page.

This post was written by Paul Magrath, ICLR blog editor, and does not necessarily represent the views of ICLR as an organisation.