Immigration protest in Westminster 2023 (Shutterstock)

Immigration

Stop the votes

They got there in the end. They stopped the endless votes on House of Lords amendments and finally called it a night. The government got the so-called Rwanda Bill (full title Safety of Rwanda (Asylum and Immigration) Bill) through its final tournament of parliamentary ping-pong and passed the legislation that will allow asylum seekers arriving illegally on Britain’s shores to be airlifted to Kigali for assessment and accommodation in the landlocked African country. All it needs now is the Royal Assent, the giving of which one hopes will not adversely affect the recovery from recent cancer treatment of His Royal Majesty King Charles. (Before his accession, Prince Charles made known his objection to the Rwanda plan, branding it “appalling” according to Reuters. Senior members of the church of which he is head have also voiced their objections. It cannot have been easy assenting, however formally, to the legislation.)

The Prime Minister, Rishi Sunak said in a statement “nothing will stand in our way” now of getting flights off the ground. Ahead of the bill passing, he had said flights to Rwanda would take off “within 10 to 12 weeks”, missing his original spring target but now aiming for early summer (possibly in anticipation of a summer general election, some have said). But, added the BBC in its report of Monday night’s vote, the scheme could still be held up by challenges in the courts. We shall see.

Law & Religion UK blog: After Rwanda: Statement from church leaders

Law reform

Crime and justice

The Times is running what it calls a Crime and Justice Commission, which it describes as a year-long inquiry into the most urgent issues facing the police, prisons, courts and victims of crime.

It has been set up to consider the future of policing and the criminal justice system, in the light of the knife crime crisis, a shoplifting epidemic, the growing threat of cybercrime, concerns about the culture of the police, court backlogs, problems with legal aid and overflowing prisons. All of these woes are, of course, regularly reported in the newspaper and its rivals, and will no doubt inform the choice of voters in upcoming local, and eventually general, elections.

The commission plans to hold fortnightly evidence sessions, with witnesses including police officers, victims, judges, lawyers, prison officers, scientists, business leaders and academics.

As it happens, the Lady Chief Justice in a speech last month giving the Kalisher Lecture, To Know The Law And Observe It Well — Magna Carta And Criminal Justice, mentioned the Royal Commission on the criminal justice process which had been promised in the Conservative Party manifesto for the 2019 election. Since then: Covid and a lot else besides. Neverthless, the idea remained a good one, and could make a real difference. In the past, reform of the justice system had too often been based on anecdote and not evidence:

“If, however, we are to ensure that we nurture our justice systems, and particularly the jewel that is our criminal justice system, we need to go much further. We need more studies. More testing. More scrutiny. We need different approaches. More methodologies. More research and a wider range of researchers testing and challenging our systems. This will, of course, depend on the availability of access to more and better data, and access for researchers to that data.”

The last word

One question the commission might like to consider is whether the Court of Appeal, Criminal Division should continue to have the last word on criminal appeals, subject to its discretion to certify the existence of a general point of law of public importance. The issue has arisen with particular force in the wake of the dismissal, by the CACD, of a reference by the Criminal Cases Review Commission (“CCRC”) in the cases of Tom Hayes and Carlo Palombo in the so-called LIBOR rigging case: [2024] EWCA Crim 304. For an explanation, see Joshua Rozenberg, Who has the last word?

A sorry state of affairs

Should it be easier to say sorry? That is the fundamental question at the heart of a new consultation by the Ministry of Justice into the effect, in civil litigation, of an apology.

The current law is set out in section 2 of the Compensation Act 2006 (the Compensation Act) and aims to encourage those defending claims not to be deterred from offering apologies by a perception that doing so would constitute an admission of liability. But does it work? The consultation considers in particular whether the existing legislation is adequate, or whether legislation along the lines of the Apologies (Scotland) Act 2016 (the Scotland Apologies Act) would represent a helpful expansion and clarification of the law. It also considers and seeks views on a recommendation by the Independent Inquiry on Child Sexual Abuse on the role of apologies in civil proceedings relating to child sexual abuse.

The consultation will close on 3 June.

See also: Joshua Rozenberg, Why ‘sorry’ is the hardest word

Courts

Recordings and transcripts

There is currently a little publicised campaign to record all criminal magistrates’ court hearings, which is not currently done, unlike in most other courts. There is a petition to Parliament, which will need to reach 10,000 to get a response from the Government, and 100,000 to get a debate in Parliament. But it’s a start.

The lack of recordings means it is impossible to order a transcript of what happened at a hearing, for the purposes of an appeal or just for victims or defendants to have a record afterwards of what happened. Even where there is a recording, the cost of transcription is often so high as to be prohibitive. There is now another campaign, by APPEAL and others, for such transcripts to be provided at public expense. It has the support of a number of MPs:

The Guardian: Stop crime victims in England and Wales paying thousands for court transcripts, say MPs

Civil courts

Are county courts still delivering local justice? Or is it all a bit of a myth? David Allen Green on his Law and Policy Blog discusses Law and lore, and state failure — the quiet collapse of the county court system in England and Wales. State failure has led to civil justice deserts in England and Wales, he says. The post expands on an article in Prospect: The quiet collapse of the county court system

Overseas appeals

The Judicial Committee of the Privy Council hears appeals from UK overseas territories and a number of Commonwealth jurisdictions. (It is sometimes abbreviated to JCPC, or JC, but in modern ICLR reports we use the court abbreviation PC.) Its work is discussed in a recent lecture by Lady Rose of Colmworth JSC, An Evolving Institution: The work of the Judicial Committee of the Privy Council.

Now it has launched a consultation on the proposed revision of the Judicial Committee of the Privy Council Rules. The JCPC rules have remained largely the same since 2009, with an amendment in 2013 to reflect a revised fee structure. Changes have been proposed in part to reflect and accommodate its transition to a new digital case management portal, designed to deliver an end-to-end service to all JCPC users. The portal is now subject to extensive user testing to help to refine and enhance its features. Further functionality to support users will continue to be designed, built and tested in the coming months until roll out, which is expected to be in October 2024. The consultation seeks the views of users (including those of litigants in person).

AI regulation

UN resolution welcomed

The United Nations General Assembly last month adopted Resolution 78/265 on Seizing the opportunities of safe, secure and trustworthy artificial intelligence systems for sustainable development. It reminds members states that human rights and fundamental freedoms must be respected, protected and promoted throughout the life cycle of artificial intelligence systems, and exhorts all stakeholders to

“refrain from or cease the use of artificial intelligence systems that are impossible to operate in compliance with international human rights law or that pose undue risks to the enjoyment of human rights, especially of those who are in vulnerable situations, and reaffirms that the same rights that people have offline must also be protected online, including throughout the life cycle of artificial intelligence systems.”

The resolution was welcomed in a joint statement by nine civil society organizations including Access Now, who viewed it as “a positive step in the right direction”, adding:

“The challenge of future negotiations on AI governance will be to advance sustainable development together with rights-respecting digital transformation, while remaining diligent in asserting the centrality of human rights and security.”

Climate change litigation

Swiss ladies win

Earlier this month the Grand Chamber of the European Court of Human Rights in Strasbourg handed down three judgments in cases alleging states of breaching human rights over failing to prevent climate change. Two of the applications were rejected on admissibility grounds. But the third, rather surprisingly, succeeded. This was a representative action by a Swiss NGO representing the interests of its members, the majority of whom are over the age of 70, against the Swiss government: Verein KlimaSeniorinnen Schweiz and Others v Switzerland (Application no. 53600/20); [2024] ECHR 304, ECtHR (GC).

The Strasbourg Court found that Switzerland had breached Article 8 of the ECHR, a provision which was drafted to protect the right to private and family life. The 17 member panel concluded by a majority that Article 8 encompasses a right to effective protection by the state authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life, and that the NGO — but not the individual claimant members — had locus standi to bring such a claim. The single dissenting judgment came from the British member of the court, Judge Eicke, and accused his judicial colleagues of going beyond what was legitimate and permissible for them to do.

Recent case summaries from ICLR

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

CHILDREN — Orders with respect to children — Financial provision: ZU v LT (In re A and B (Schedule 1: Arbitral Award: Appeal)), 10 Apr 2024 [2024] EWHC 778 (Fam); [2024] WLR(D) 161, Fam D

COMPETITION — Investigatory powers — Market investigations: Cérélia Group Holdings SAS v Competition and Markets Authority, 11 Apr 2024 [2024] EWCA Civ 352; [2024] WLR(D) 168, CA

CRIME — Court of Appeal (Criminal Division) — Jurisdiction: R v Hughes (Ronan), 12 Apr 2024 [2024] EWCA Crim 357; [2024] WLR(D) 172, CA

INDUSTRIAL RELATIONS — Trade union activities — Industrial action: Mercer v Alternative Future Group Ltd (Secretary of State for Business and Trade v Mercer), 17 Apr 2024 [2024] UKSC 12; [2024] WLR(D) 165, SC(E)

MAGISTRATES’ COURT — Case stated — Jurisdiction: Cuciurean v Crown Prosecution Service, 17 Apr 2024 [2024] EWHC 848 (Admin); [2024] WLR(D) 173, DC

PENSIONS — Public service pension schemes — Transfer to new schemes: R (Fire Brigades Union) v HM Treasury (R (British Medical Association) v HM Treasury), 17 Apr 2024 [2024] EWCA Civ 355; [2024] WLR(D) 166, CA

PRACTICE — Claim — Fundamental dishonesty: Williams-Henry v Associated British Ports Holdings Ltd, 10 Apr 2024 [2024] EWHC 806 (KB); [2024] WLR(D) 167, KBD

PRACTICE — Pleadings — Claim form: Morris v Williams & Co Solicitors, 18 Apr 2024 [2024] EWCA Civ 376; [2024] WLR(D) 174, CA

REVENUE — Corporation tax — Loan relationships: Blackrock Holdco 5 LLC v Revenue and Customs Comrs, 11 Apr 2024 [2024] EWCA Civ 330; [2024] WLR(D) 159, CA

TRUSTS — Declaration of trust — Land: Crescent Gas Corpn Ltd v National Iranian Oil Co, 15 Apr 2024 [2024] EWHC 835 (Comm); [2024] WLR(D) 179, KBD

Recent case comments on ICLR

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

Pink Tape: Please don’t confuse your ‘usual practice’ with my actual reading of the actual rules: In re T (A Child) [2024] EWCA Civ 189; [2024] WLR(D) 127, CA

Out-Law: Court considers redevelopment ground for opposing business lease renewals: Sainsbury’s Supermarkets Ltd v Medley Assets Ltd, Judgment PDF, County Ct

Legal Futures: Barrister jailed for drug offences fails in appeal against sentence: R v Henry Hendron [2024] EWCA Crim 338, CA

2DRJ Barristers: A Review of Hate Crime Laws in the Wake of Brianna Ghey’s Murder — Part 1, Part 2: R v Jenkinson (Scarlett) and Ratcliffe (Eddie), Sentencing remarks, Crown Ct

Law Society Gazette: Conditions on permission to appeal: Palladian Partners LP v Republic of Argentina [2024] EWCA Civ 139, CA

Electronic Immigration Network: Woman resident in the UK for 39 years loses deportation battle: Akhtar v Secretary of State for the Home Department [2024] EWCA Civ 354, CA

Mental Capacity Law and Policy: Residence, care, sex and marriage: an (unusual) successful appeal on capacity: ZZ (Capacity), Re [2024] EWCOP 21, Ct of Protection

City Law Forum: The Curious Case of Computer-Generated Works (CGW) in THJ Systems Ltd v Sheridan [2023] EWCA Civ 1354, CA

Mental Capacity Law and Policy: Serious medical treatment — the importance of the public record: King’s College Hospital NHS Foundation Trust v South London and Maudsley NHS Foundation Trust & Anor [2024] EWCOP 20, Ct of Protection

Law & Religion UK: Sanctions imposed for illegal boiler installation: Re St Mary Stalbridge [2024] EC Sal 1, Const Ct

Local Government Lawyer: Judges allow appeal over flawed reasoning in fact-finding judgment: A (A Child) (Fact-Finding: Head Injury) [2024] EWCA Civ 327, CA

A Lawyer Writes: Who has the last word? R v Hayes (Tom) [2024] EWCA Crim 304; [2024] WLR(D) 151, CA

And finally…

Trial of the week

Is in New York. (Hush hush, stay if you choose, Donald Trump is having a snooze…)

Report by Will Pavia in The Times (£):

That’s it for now. Thanks for reading, and thanks for all your toots, tweets, posts and links. Work hard, be kind, take care.

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.

UPDATE: this post has been updated to clarify remarks about the King’s attitude to the Rwanda scheme.