Politics

Ministerial reshuffle

In a long expected, possibly too long delayed move, the Prime Minister, Rishi Sunak MP, sacked the Home Secretary, Suella Braverman KC MP, appointing in her place James Cleverly MP, and appointing in his place as Foreign Secretary the former Prime Minister David Cameron, making him a Lord in the process (Lord Cameron of Chipping Norton, no less). It was quite a comeback for the man who gave us Brexit, but apparently that’s all sewage under the bridge now, as the former environment secretary, Thérèse Coffey MP, might put it. She was replaced by Steve Barclay MP in the same reshuffle.

The event that seems to have prompted this flushing out was Braverman’s refusal or failure at No 10’s behest to tone down her criticism, in an article in The Times, of the Metropolitan Police Force’s approach to the policing of protest marches, which she alleged was biased in favour of left-wing and Islamist causes and too indulgent towards hate speech. For commentary on the article, see: David Allen Green, Law and Police Blog, The extraordinary newspaper column of the Home Secretary — and its implications. He concluded:

“If the Home Secretary keeps their job after this, their intervention should not be forgotten. It was a crass and illiberal assault on the constitutional (and operational) independence of the police, against freedom of expression, and based in part on a mangled and limited understanding of Irish history.”

Well, she didn’t keep her job. And at the subsequent march, which was allowed to take place on 11 November, Remembrance Day, there were clashes with police and a number of arrests made for hate crimes and public order offences involving pro-Palestinian marchers and what the police described as “counter-protesters” (far right anti-immigration agitators for the most part). There was speculation that all the talk of banning it had only made the march more contentious and liable to misconduct. See The Guardian, Hundreds of thousands rally for Gaza in London as police arrest far-right protesters.

Legislation

Prior to the reshuffle, Parliament returned from its long recess with that glorious constitutional jamboree, the State Opening of Parliament, on 7 November 2023, the high point of which is the King’s Speech outlining his government’s legislative plans for the coming session. It was the first King’s Speech for 70 years.

King Charles III intoned the catalogue of proposed new statutes with aplomb, if not enthusiasm. They included:

  • A bill to support the future licensing of new oil and gas fields, “helping the country to transition to net zero by 2050 without adding undue burdens on households”.
  • A bill to promote trade and investment with economies in the fastest growing region in the world.
  • A bill to reform the housing market by making it cheaper and easier for leaseholders to purchase their freehold and tackling the exploitation of millions of homeowners through punitive service charges.
  • A bill to progress the construction of a national Holocaust Memorial and Learning Centre in Victoria Tower Gardens.
  • A bill to ensure tougher sentences for the most serious offenders and increase the confidence of victims.
  • And last but surely not least, a bill to deal with “the scourge of unlicensed pedicabs in London”. (Who knew?)

Other legislative ambitions included plans to abolish section 40 of the Crime and Courts Act 2013 which was designed to encourage newspapers to be properly regulated (but roundly opposed by nearly all of them, and never brought into effect) and to reintroduce the Data Protection and Digital Information Bill (№2) to reform the effect of GDPR in the UK.

For more on all this, see Pinsent Masons’ Out-Law blog, King’s speech outlines UK’s pre-election legislative agenda

Immigration

A lost cause

One of the former Home Secretary’s most cherished policies was that of deporting asylum seekers and other migrants arriving unofficially by small boat on our shores to the landlocked African republic of Rwanda, for consideration of their cases and, if successful, accommodation in a new home. This was intended to “stop the boats” arriving in the first place. There remained the awkward question of what happened if their claims were not processed properly in Rwanda or resulted in their forcible return (refoulement) to countries where they might be at risk of persecution.

The plan faced a number of legal challenges, for these and other reasons, and two days after she had been sacked, Braverman KC learned that the UK Supreme Court had rejected the government’s case for them, concluding that the plans were unlawful and in breach of various international treaty obligations (not just the ECHR). For reports and legal commentary on the case, see R (AAA (Syria)) v Secretary of State for the Home Department [2023] UKSC 42, SC(E).

See also: David Allen Green, On yesterday’s Supreme Court judgment on the Rwanda policy

Within hours of the Supreme Court’s decision, the Prime Minister announced that the government was determined to press ahead with its Rwanda policy, and proposed emergency legislation to make the inconvenient facts not be so inconvenient, and thereby get round the courts’ objections. But it’s unlikely any actual flights can take place before the next general election, and in the meantime it would probably make more sense to actually process the claims of the migrants arriving by small boat.

But it all costs money. According to a recent Departmental Overview by the National Audit Office,

“In 2022–23, the Home Office spent a net £1.6 billion more than the previous year. Its total spend increased by £2.5 billon (12%) and total income increased by £0.9 billion (20%). The Public Safety Group spend includes the main police grant of £9.2 billion. The largest increases in spend and income were: • the Asylum and Protection Group spent £4.6 billion, an increase of £2 billion (78%) due to the rising costs of supporting people seeking asylum (page 23); and income from ‘Customer Services’ of £4.5 billion, an increase of £1 billion (35%) relating to fees from visas (page 20) and passport applications (page 21).” (Our bold.)

That’s two billion pounds the government could be spending on other things. It’s hard to see how a doomed attempt to export the problem was ever going to solve it.

See also: Institute for Government, The Supreme Court’s Rwanda verdict and Rishi Sunak’s response: what happens next?

Judiciary

Lord Judge remembered

It is with great sadness that ICLR joins the many others in marking the death on 7 November of Lord Judge, who had been Lord Chief Justice of England and Wales between 2008 and 2013.

Tributes were paid by his current successor, Baroness Carr of Walton-on-the-Hill, via the Judiciary website, by a number of his fellow members of the House of Lords, by legal commentators such as Joshua Rozenberg, on A Lawyer Writes, and by the school of law at King’s College, London where he had been a visiting professor.

Lord Judge was a great friend to ICLR and a great promoter of The Law Reports. During his time as Lord Chief Justice he attended and spoke at the launch of both our Educational DVD, at Lincoln’s Inn in October 2009, and at the launch of ICLR Online, at Middle Temple in October 2011.

At the first of these he confessed a love of reading historical law reports for their social history, and admitted

“I suspect that I am not the only judge whose judgments have been improved by the law reporters. Howlers respectfully highlighted, my non sequiturs logified, which is ancient English cobbled together in 2009 for being made logical and given clarity, split infinitives unsplit, and full stops or commas, or colons or semicolons as grammatically correct, supplied. I am, grateful, and no doubt many practitioners as well as my brother and sister judges are deeply grateful too for the improvements effected by the law reporters.”

At the second event, he reiterated a point he’d also made at the first, to complain about the over-citation of authorities. If it is not necessary to cite a case or including it in the bundle of authorities, then it is necessary not to include it. The competent advocate, he said, is the one who directs the court only to those cases that really matter.

That, too, is the purpose of The Law Reports. Lord Judge CJ was also responsible for the Practice Direction (Citation of Authorities) [2012] 1 WLR 780, paras 5 to 8 of which requires their citation in preference for any other version of a reported case:

“5 When authority is cited, whether in written or oral submissions, the following practice should be followed.

6 Where a judgment is reported in the official Law Reports (AC, QB, Ch, Fam) published by the Incorporated Council of Law Reporting for England and Wales, that report must be cited. These are the most authoritative reports; they contain a summary of the argument. Other series of reports and official transcripts of judgment may only be used when a case is not reported in the official Law Reports.

7 If a judgment is not (or not yet) reported in the official Law Reports but it is reported in the Weekly Law Reports (WLR) or the All England Law Reports (All ER) that report should be cited. If the case is reported in both the WLR and the All ER either report may properly be cited.

8 If a judgment is not reported in the official Law Reports, the WLR or the All ER, but it is reported in any of the authoritative specialist series of reports which contain a headnote and are made by individuals holding a Senior Courts qualification (for the purposes of section 115 of the Courts and Legal Services Act 1990), the specialist report should be cited.”

Recent case summaries from ICLR

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

COMPETITION — Competition Appeal Tribunal — Collective proceedings order: Michael O’Higgins FX Class Representative Ltd v Barclays Bank plc (Practice Note) (Evans v Barclays Bank plc), 09 Nov 2023 [2023] EWCA Civ 876, CA

COSTS — Order for costs — Qualified one-way costs shifting: Amjad v UK Insurance Ltd, 10 Nov 2023 [2023] EWHC 2832 (KB); [2023] WLR(D) 473, KBD

CRIME — Sentence — Reduction and review: R v Royle (Adam) (R v AJC, R v BCQ), 13 Nov 2023 [2023] EWCA Crim 1311; [2023] WLR(D) 482, CA

ENVIRONMENT — Protection — Conservation of water: R (Pickering Fishery Association) v Secretary of State for Environment, Food and Rural Affairs, 15 Nov 2023 [2023] EWHC 2918 (Admin); [2023] WLR(D) 478, KBD

LANDLORD AND TENANT — Disposal — Notices: FSV Freeholders Ltd v SGL 1 Ltd, 14 Nov 2023 [2023] EWCA Civ 1318; [2023] WLR(D) 471, CA

NATIONALITY — British citizenship — Acquisition: Rex (Murugason) v Secretary of State for the Home Department, 16 Nov 2023 [2023] EWCA Civ 1336; [2023] WLR(D) 475, CA

NEGLIGENCE — Duty of care — Public authority: FXJ v Secretary of State for the Home Department, 20 Nov 2023 [2023] EWCA Civ 1357; [2023] WLR(D) 477, CA

PENSIONS — Pension scheme — Construction: Campbell v NHS Business Services Authority, 16 Nov 2023 [2023] EWCA Civ 1351; [2023] WLR(D) 476, CA

PRACTICE — Documents — Subsequent use of disclosed documents: Baroness Lawrence of Clarendon v Associated Newspapers Ltd, 10 Nov 2023 [2023] EWHC 2789 (KB); [2023] WLR(D) 474, KBD

SALE OF GOODS — Implied term — Exclusion clause: Last Bus Ltd (trading as Dublin Coach) v Dawsongroup Bus and Coach Ltd, 10 Nov 2023 [2023] EWCA Civ 1297; [2023] WLR(D) 468, CA

Recent case comments on ICLR

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

UK Supreme Court Blog: Unanimous Supreme Court: Rwanda removals are unlawful: R (AAA (Syria)) v Secretary of State for the Home Department [2023] UKSC 42, SC(E)

Free Movement: Court of Appeal dismisses government appeal on access to benefits for people with pre settled status: Secretary of State for Work and Pensions v AT [2023] EWCA Civ 1307, CA

Free Movement: Permission granted in challenge to rejection of Albanian asylum claim: R (H) v Secretary of State for the Home Department [2023] EWHC 2758 (Admin), KBD

Free Movement: Returning a refugee to persecution must be a last resort: D8 ( Exclusion : Substantive) [2023] UKSIAC 1

Nearly Legal: Tales from the County Courts — housing conditions quantum, proof of notice of defects, and section 21 and gas safety certificates again: Blagg v Gharbi & Gharbi (unreported); PDF transcript, County Ct

Park Square Barristers: BNE [2023]: Disclosure and the use of child decoy profiles in sexual communication cases: R v BNE [2023] EWCA Crim 1242; [2023] WLR(D) 444, CA

Inforrm’s Blog: Case Law, Strasbourg: Bild GmbH & Co v Germany, Police officer’s “pixelation” injunction violated Article 10: Bild GmbH & Co KG v Germany (Application no. 9602/18); [2023] ECHR 851, ECtHR

Inforrm’s Blog: High Court dismisses Daily Mail’s summary judgment application in unlawful information gathering case: Baroness Lawrence of Clarendon v Associated Newspapers Ltd [2023] EWHC 2789 (KB); [2023] WLR(D) 474, KBD

UK Human Rights Blog: Doctor’s suspension after questioning the severity of Covid 19 did not breach his Article 10 rights: Adil v General Medical Council [2023] EWCA Civ 1261, CA

Law & Religion UK: St. Michael le Belfrey, York (I), (ii) and (III): In re St Michael le Belfrey, York [2023] ECC Yor 2, Const Ct

Gatehouse Chambers: Default judgment granted in part in long-running hacking and fraud claim: Ras Al Khaimah Investment Authority v Azima [2023] EWHC 2108 (Ch), Ch D

Doughty Street Chambers: Suspended quashing orders and rolling judicial review as a means of monitoring compliance: R (Every Child Protected Against Trafficking UK) v Kent County Council [2023] EWHC 2199 (Admin), KBD

Panopticon: Art.10 rights attenuated by contract: R (Craighead) v Secretary of State for Defence [2023] EWHC 2413 (Admin), KBD

Guildhall Chambers: R v Clark [2023] EWCA Crim 309: a mere administrative error or an invalid committal? R v Clark (Christopher) [2023] EWCA Crim 309; [2023] 4 WLR 31; [2023] 2 Cr App R 4; [2023] WLR(D) 161, CA

Hailsham Chambers: Are there any circumstances in which professional indemnity insurers will indemnify insured persons in respect of a loss of fees? Royal & Sun Alliance Insurance Ltd v Tughans [2023] EWCA Civ 999, CA

Local Government Lawyer: Court of Protection case law update: NK v RK [2023] EWCOP 37, Ct of Protection

Dates and Deadlines

Family Justice Council — 16th Annual Debate

Thursday, 7 December 2023, from 5.30pm to 7.30pm at a venue to be determined

The subject of this year’s debate, which will also be live streamed, is: “Should cohabiting couples have the same financial rights and responsibilities as those who are married/in a Civil Partnership?”

The event will be chaired by Sir Andrew McFarlane, President of the Family Division and Chair of the Family Justice Council. The panel speakers will be announced shortly. As spaces at the venue are limited, we will inform those applicants who have requested to attend in person whether they have been successful by 30 November 2023. For more information, see the Judiciary website.

And finally…

Tweet of the week

is a tribute from one mouse to others

That’s it for now. Thanks for all your tweets and toots and threads. May your blue sky remain unclouded.

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.