Parliament

Restoring the fabric of democracy

Last week the National Audit Office published its Progress Update on the Restoration and Renewal of the Palace of Westminster. The programme was set up by Parliament to undertake critical works to preserve the crumbling fabric of the Palace of Westminster (the Victorian building complex in which Parliament operates) and to improve facilities for the modern age. The state of the building has been a source of concern for a decade or more with differing views over how best to deal with it. MPs have dithered over how to manage the works and whether to move out of the building altogether, or remain, or sit remotely while repairs (which could take years) are completed.

In 2016, the Joint Parliamentary Committee on the Palace of Westminster reported that, without major works, the Palace would soon become “uninhabitable”. For a number of years Parliament has taken a “make-do-and-mend” approach, spending some £369 million between 2015 and 2019. In January 2018, Parliament approved the Restoration and Renewal Programme to do the significant work needed to repair the Palace, and to meet wider objectives such as improving accessibility and providing educational facilities. The Programme’s vision is to “transform the Houses of Parliament to be fit for the future as the working home for our Parliamentary democracy, welcoming to all, and a celebration of our rich heritage”.

The Parliamentary Buildings (Restoration and Renewal) Act 2019 created the Parliamentary Works Sponsor Body, which is accountable for the restoration programme, and will oversee a Delivery Authority, responsible for managing the Programme. The first formal Programme milestone will be Parliament approving a “business case”, currently planned for by summer 2023. The business case must set out a strategic case for Parliament to understand the Programme’s rationale and assess the costs, benefits and risks of options for what a restored Palace will look like.

Initially, the plan was for a “full decant” of Parliament out of the building while works were done, but in December 2020 the House of Commons Commission agreed to ask the Sponsor Body to consider an alternative approach under which the House of Commons would remain in the building, known as “continued presence”.

Meanwhile the costs have mounted. Since being formally established in spring 2020, the Sponsor Body and Delivery Authority have already spent £145.5 million just to develop themselves and start work on the business case. Moreover a plan for a temporary Commons Chamber in Richmond House, the old Department of Health HQ in Whitehall, required for the “full decant” scenario, has now been dropped with £70.2m spent on the project written off last year by the House of Commons (see BBC, Rumbling concern over Parliament’s buildings).

Now, the NAO reports, “The Sponsor Body assesses as ‘high’ the risk that it may not meet its current plan to present a robust business case to Parliament in early 2023.” Moreover, it “currently has less information than it expected to have at this stage to develop the business case” and “needs clarity on a series of related projects, which are delayed or not fully developed”.

To deliver the Programme, the Sponsor Body “needs effective relationships with various groups across Parliament who have different perspectives and cultures and work together through many forums and committees”. Unfortunately, this hasn’t happened. There have been “tensions” and “challenges”, according to the NAO, and on the recommendation of a Joint Review by the various bodies a Steering Group was created in October 2021. It remains to be seen whether this new body will help get all the other bodies working together in harmony.

Overall, the NAO notes astringently, “A lack of clarity across the Programme increases the risk of restoration work being delayed, which could lead to longer-term costs and risks for Parliament to manage”. In January 2021, the Programme told the Committee of Public Accounts that the Palace was falling apart faster than it could be fixed. Even so, it doesn’t now look as if works will actually begin till 2027. Let’s hope the home of our democracy hasn’t fallen down in the meantime.

See also: House of Commons Library briefing, Restoration and Renewal — developments since October 2019

IP and Media

Lawfare: are some firms SLAPP-happy?

Pressure has been growing for Parliament to do something to curb what is generally described as “lawfare”, ie the abuse of legal proceedings by the rich and powerful to silence critics and opponents, and more specifically “SLAPPs”, which stands for Strategic Litigation Against Public Participation. Last week there was a frank and unusually consensual debate on the matter in the House of Commons: Lawfare and UK Court System. The debate was led by David Davis MP, who did not mince his words:

“London is among the most respected cities from a legal perspective. However, what is attractive to legitimate businessmen is also attractive to those with nefarious intentions: there are those with exceptionally deep pockets and exceptionally questionable ethics. These people use our justice system to threaten, intimidate and put the fear of God into British journalists, citizens, officials and media organisations. … In many cases, our reporters face reputational and financial ruin in defending themselves from these malevolent cases; even if they win, the expense and impact are huge. The chilling effect on a free press is extraordinary. Some newspapers hesitate to cover certain topics, such as the influence of Russian oligarchs, for fear of costly litigation. In at least one case I know, the publication avoids the subject outright.”

The debate benefited from a waiver under the terms of the sub judice resolution to allow reference to certain ongoing cases, which allowed MPs to be more than usually frank about the the abuses under discussion. Since it was a debate in Parliament, they also benefited from parliamentary privilege, ie legal protection from any attempt to use media law to silence or intimidate them (though the cases discussed included at least one in which a serving MP appeared to have been the target of lawfare).

In the course of the debate, it was suggested that certain lawyers were more than ready, for purely commercial reasons, to act for clients who were abusing the legal system by pursuing SLAPPs. It was said that the professional regulators ought to put a stop to it. However, the MP Bob Neill, who chairs the House of Commons Justice Committee and is himself a lawyer, was anxious to remind the House that:

“When we deal with that abuse, we have to be wary of not doing so in such a way as to undermine the ability of the courts of this country to act utterly independently. That will sometimes involve the right of an unattractive litigant to seek access to the courts; that is fundamental too. That is probably why it is right that if action has to be taken, this House and Government must do it. We cannot place the judiciary in the invidious position of having to make judgments as to the political acceptability or otherwise of those who might seek to bring a claim before the courts — provided, of course, that there is at least a prima facie legal basis to bring the claim in the first place.”

He also reminded the House of the Cab Rank Rule under which barristers are obliged to act for any client, however unsavoury, in any matter in which they hold out the relevant expertise and are available to do so for proper remuneration. However, even he would surely admit that there’s a big difference between principled agreement to act for an unsavoury client and the enthusiastic touting of one’s talents for the sort of clients who were more interested in crushing opposition to their dodgy schemes than legitimately protecting their reputation as honest citizens.

The suggestion that it was for Parliament to impose the appropriate restrictions on the abuse of litigation received bipartisan support. Anti-SLAPP laws already exist in other jurisdictions. Such a law, said Neill, “could involve an early strike-out mechanism that would speed up the means of dealing with cases without any substantive merit that have clearly been brought for the purposes of intimidation through a war of attrition”.

The UK (ie London) seems to have become a major forum for the pursuit of lawfare, rather as it became a preferred forum for the not unconnected phenomenon known as “libel tourism”. Something needs to be done. There has already been momentum towards this from journalistic, open society and public interest organisations.

The whole debate as recorded (and privileged) in Hansard is well wroth reading, with some well informed contributions. See also:

Joshua Rozenberg, A Lawyer Writes: Free press crushed by lawfare.
Prof Richard Moorhead, Lawyer Watch: Lawfare: “an industry that hides evil in plain sight”?
Nick Cohen, Observer: Are our courts a playground for bullies? Just ask Catherine Belton and No one is safe from the rich elite’s abuse of British law. Just ask Charlotte Leslie
Legal Futures: Law firms helping oligarchs suppress criticism “a cancer”, says MP
Peter Coe, Inforrm’s blog: Strategic Lawsuits Against Public Participation: a SLAPP in the face for free speech. What are SLAPPs?
UK Anti-SLAPP Coalition, policy paper: Countering legal intimidation and SLAPPs in the UK
Foreign Policy Centre, report: Unsafe for Scrutiny: Examining the pressures faced by journalists uncovering financial crime and corruption around the world
Dirk Voorhoof, Inforrm’s blog: An EU anti-SLAPP Directive: A Proposal

Regulatory consultation

The Information Commissioner’s Office (ICO) has launched a consultation to gather the views of stakeholders and the public on how it regulates the laws it monitors and enforces. The ICO consultation deals with the draft Regulatory Action Policy; statutory guidance on our regulatory action; and statutory guidance on our PECR powers. Taken together, these three documents set out how the ICO aims to carry out its mission to uphold information rights for the UK public in the digital age. The consultation closes on 24 March 2022.

Wills

Appeal over secret hearing

The Guardian has been given leave to appeal (by King LJ on the papers) against the decision of Sir Andrew McFarlane P in In re The Will of His late Royal Highness The Prince Philip, Duke of Edinburgh [2021] EWHC 77 (Fam) to hear an application by the executors of the late Prince Philip for an order sealing his will in private. The President ordered the will be sealed up for 90 years. It joins a number of other royal wills, now listed in an annex to his published judgment, over which he has custodianship in his capacity as Head of Probate.

As noted in a case comment on the Transparency Project blog, “the grounds of appeal apparently relied upon relate to the transparency of the process of hearing the case, not to the substantive question of whether or not the will should, indeed, have been made public”. According to the order shown in a tweet by Daniel the MouseInTheCourt, “there is a real prospect of the applicant succeeding” on that ground.

King LJ has granted permission to appeal vis Prince Phillip's will
"There is a real prospect of the applicant succeeding on the ground that the High Court erred in law in denying
the media an opportunity to make submissions"@JoshuaRozenberg @MarkHannaMedia pic.twitter.com/DwUPisPXSX

— Daniel the MouseInTheCourt (@MouseInTheCourt) January 21, 2022

See also The Guardian’s own report on the grant of PTA: Court of appeal to hear challenge over media ban from Prince Philip’s will court case

Recent case summaries from ICLR

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

CRIME — Terrorism — Sentence: R v John (Ben) (Attorney General’s Reference), 19 Jan 2022 [2022] WLR(D) 34, CA

DISCRIMINATION — Age — Mandatory retirement age: MSR Partners LLP v Parr, 14 Jan 2022 [2022] EWCA Civ 24; [2022] WLR(D) 29, CA

ENVIRONMENT — Pollution — Air quality: R (Richards) v Environment Agency, 17 Jan 2022 [2022] EWCA Civ 26; [2022] WLR(D) 30, CA

IMMIGRATION — Leave to remain — Variation: R (C1) v Secretary of State for the Home Department, 19 Jan 2022 [2022] EWCA Civ 30; [2022] WLR(D) 31, CA

IMMIGRATION — Asylum — Asylum support benefit: R (AXG) v Secretary of State for the Home Department, 14 Jan 2022 [2022] EWHC 56 (Admin); [2022] WLR(D) 28, QBD

INSOLVENCY — Cross-border insolvency — Recognition of foreign proceedings: Kireeva v Bedzhamov (Vneshprombank LLC v Bedzhamov), 21 Jan 2022 [2022] EWCA Civ 35; [2022] WLR(D) 37, CA

PRISONS — Prisoner’s rights — Parole Board decision: R (Austin) v Parole Board, 17 Jan 2022 [2022] EWHC 63 (Admin); [2022] WLR(D) 35, QBD

Recent case comments on ICLR

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

RPC Perspectives: Minstrell Recruitment — HMRC not required to disclose the names of its officers involved in a Gross Payment Status revocation decision: Minstrell Recruitment Ltd v HMRC [2021] UKFTT 0344 (TC), FTT

Law & Religion UK: Failure to protect LGBT demonstrators from mob violence: Women’s Initiatives Supporting Group and Others v Georgia (Application nos. 73204/13 and 74959/13); [2021] ECHR 1097, ECtHR

Free Movement: Ethiopia still not safe for Oromo Liberation Front supporters, country guidance confirms: AAR (OLF and MTA — risk : OLF — MB confirmed) Ethiopia CG [2022] UKUT 1 (IAC), UT (IAC)

Pink Tape: Defining coercive or controlling behaviour: A Child (Application of PD12J : №2 — Findings of Fact) [2022] EWFC 2, Fam Ct

UK Human Rights Blog: Barry Bennell abuse claim falls on limitation and vicarious liability: TVZ v Manchester City Football Club Ltd [2022] EWHC 7 (QB), QBD

Nearly Legal: RROs, company directors and reasonable excuses: Kaszowska & Ors v White [2022] UKUT 11 (LC), UT

Free Movement: British citizenship can be taken away if criminal offending not disclosed: Walile (deprivation: self-incrimination: anonymity) [2022] UKUT 17 (IAC), UT

Transparency Project: Two new Griffiths judgments — what are they about?Griffiths v Griffiths [2021] EWHC 3600 (Fam); [2022] EWHC 113 (Fam), Fam Ct

Other recent publications

In the Shallow End

Professor Conor Gearty of the LSE in the London Review of Books discusses the UK Supreme Court’s approach to cases in the last two years since the current President, Lord Reed took over from Lady Hale in January 2020.

“Reed’s Supreme Court has reached some judgments strongly assertive of traditional civil liberties and others than insist on the importance of access to justice. But in some areas the tone is markedly different from the one taken by the court under Hale’s leadership. This has been clear in a series of decisions that have been very helpful to government on issues of equality, social policy and human rights.”

Dominic Raab’s ‘Operation Red Meat’ Justice Plans Will Backfire

Barrister Gareth Roberts in Byline Times discusses the government’s plans (reported in Weekly Notes, 17 January 2022) to increase the sentencing power of magistrates to a maximum of 12 months’ imprisonment. Theoretically this will release the pressure on the crown courts and reduce the backlog of trials, which currently stands at 60,000. But in practice it will incline more defendants either to elect trial in the Crown Court in these more serious “triable either way” offences, or to appeal to the Crown Court against the more substantial sentence likely to be imposed in the magistrates’ court.

The Independent Human Rights Act Review and the government’s Bill of Rights

Nicola Barker, Professor of Law at the University of Liverpool, on the UK Human Rights Blog discusses how the ambit of government plans for reform of human rights law appears to have expanded beyond the constitutional relationship between domestic courts and the ECtHR and the impact of the HRA on the relationship between the three branches of the state, to a more comprehensive review of the way rights are relied upon in society more generally. “In other words, the focus is back on how to prevent rights from benefitting the ‘undeserving’ and how to forestall further development of rights through the ‘living tree’ doctrine.”

The Police, Crime, Sentencing and Courts Bill: a Look at the Public Order Provisions

David Mead on the UK Labour Law Blog discusses the public order provisions in Part 3 of that PCSC Bill (link to the latest version), and how they might affect workers taking industrial action in support of jobs or conditions. It was written just before the House of Lords voted down a lot of the new measures introduced by the government at a late stage, inter alia, to quell disruptive public protests.

Why the Downing Street parties matter from a law and policy perspective

David Allen Green on his Law and Policy Blog explains why those scandalous Downing Street parties, “which on one level are the most trivial of things, are significant in practical law and policy terms — and not just because of the public interest in the subject”.

The parties are subject of a current inquiry by a senior civil servant, but this just means that “the Prime Minister and other ministers are using a civil servant (who is not even the most senior official in her own department) as the means of avoiding and deflecting accountability to the House of Commons”. In another post he avers that Accountability needs transparency, and both need to be enforceable by legal remedies.

The Weekly Round-Up: Deprivations of citizenship, the state of the union and prison over Pride and Prejudice

This week’s roundup from the UK Human Rights Blog, written by William Craig Cohen, covers important developments in immigration law, particularly the increased use of government powers to deprive people of their UK citizenship, without necessarily letting them know of the fact.

The roundup also mentions an appeal by the Attorney General from a somewhat alternative sentencing decision by a deputy judge requiring a terrorist convicted of possessing a bomb-making manual to try reading some better books, such as Dickens, Shakespeare and Jane Austen. While seeming enlightened (sending him to jail is surely far less likely to cure him of his radicalised mindset), the sentence was apparently outwith the judge’s powers.

Ecclesiastical court judgments 2021

A digest of all the case comments published on The Law & Religion UK blog over the last year. We try to index all the comments on ICLR.4 together with links to the judgments. There is a plan to publish the judgments themselves on our platform in due course: some are fully reported in our WLR or PTSR case reports. Accepting that it is a niche subject area, nevertheless ICLR is the only mainstream law publisher to cover it.

Legal jobs

Law reporter

The ICLR is recruiting candidates to join its dedicated team of legally qualified reporters. The deadline for applications is 31 January 2022. For more information: ICLR Careers

Free Movement

If you can write fluently, you are interested in being read by a wide audience and you are fascinated by immigration law and practice then have a think about joining Free Movement’s small team of contributors. The deadline for applications is 5pm on Monday 7 February 2022. For more information: Free Movement, We’re recruiting!

Advocate

An opportunity exists for a determined, organised and enthusiastic individual to join the casework team at Advocate. This is a national charity which matches volunteer barristers eager to undertake pro bono work with those who need legal assistance but cannot obtain public funding (legal aid) and cannot afford to pay for it. This role is a full-time, permanent position, working 35 hours a week (excluding lunch break) Monday to Friday. For more information: Advocate, Vacancies.

And finally…

Tweet of the week

is from David Allen Green on the long time that is a week in party politics:

Solomon Grundy,
Partied on Monday,
Worried on Tuesday,
Investigated from Wednesday,
Leaked on Thursday,
"Cleared" on Friday,
"Lessons learned" on Saturday,
"Let's move on" on Sunday.
That was the week
Of Solomon Grundy. https://t.co/9Zw3Rphp8Z

— davidallengreen (@davidallengreen) January 14, 2022

That’s it for this week! Thanks for reading, and thanks for all your tweets and links. Keep safe and well.

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: Palace of Westminster, photo by Luke Stackpoole on Unsplash

Weekly Notes: legal news from ICLR, 24 January 2022