Freedom of movement

Lockdown travel restrictions

Anyone who watched the first episode of Deutschland 89 as it aired last week would have seen how bungled (or were they?) attempts to relax cross-border travel restrictions in the German Democratic Republic (aka East Germany) led initially to the fall of the Berlin Wall (amidst scenes of jubilation) and (more ominously) the collapse of the secret power structures propping up the sub-sovient regime. Now, however, the UK government is introducing its own travel restrictions — roughly a year too late for them to make any significant difference to national levels of covid morbidity, and on top of existing restrictions imposed by way of Brexit isolationism — in the form of a Mandatory form for international travel. But if this historical perspective (admittedly a desperate bid to include a TV favourite in this week’s roundup) is too absurd, there is always a redundant World War II analogy: those posters that challenged our ancestors, “Is Your Journey Really Necessary?”

The GDR travel restrictions were, it would appear, intended to protect the people from being infected with capitalism. Those imposed by our current government should perhaps be welcomed as an attempt to prevent the people from being infected by “variants” — which sounds like a cute bit of terminology for zombie cyborgs in a dystopian Sci-Fi. Seriously though, shouldn’t this have all been done a year ago? The Department of Transport and Home Office announcement says “The government has already put in place a range of tough measures to minimise the risk of COVID-19 transmission at the border” but that word “already” is working hard as a sleight-of-speech for “only just and somewhat reluctantly”. Still, the rest of the message has all the calm deliberation of a traditional panic measure:

“Passengers travelling internationally from Monday 8 March 2021 will need to carry a new form that sets out their trip is permitted under the stay at home restrictions.

The simple form must be downloaded, signed before travel, and carried or downloaded onto a mobile phone.

Carriers will be checking the forms have been completed before boarding, either at check-in (online or at the check-in desk) or the departure gate. Passengers who do not have a valid form may be denied access to their booked service. Carriers will also be legally obliged to set out on their website that the form must be completed before travelling.

Police have been stepping up their presence at ports and airports in recent weeks. Officers will be conducting spot checks and have the power to ask travellers to produce a completed form. It will be an offence to fail to produce a completed form and individuals could face a £200 fine.

Stay-at-home rules are still in place, which means it is illegal to travel abroad without a permitted reason, such as for education or work.”

Clampdown on migrant smuggling

The travel restriction announcement rounds off with the usual warning of maximum penalties for breaching the rules, very much in keeping with the current fad for “sending a message” rather than spending resources on enforcement. Much the same could be said for the Home Secretary, Priti Patel’s latest soundbite on the embarrassing topic of migrant smuggling. (Just as no defendant is guilty unless convicted, a migrant is not “illegal” unless and until proved to have committed an immigration offence.)

Patel is reported to have expressed concern that some convicted people-smugglers were only being given sentences of about three years of imprisonment, even though the current maximum is 14 years. She wants to increase the maximum to life, or rather “life” imprisonment (release under licence being regarded by the press as not amounting to much of a penalty, in the same way as a suspended prison sentence is basically just “walking free”). According to The Guardian,

“The Home Office said ministers would set out further details ‘in the coming weeks’. A spokesman said: ‘Whilst criminal gangs continue to put lives at risk it is right we consider every option to stop their exploitation of people’.”

Or as the Daily Mail with calm objectivity put it: People smugglers could be jailed for LIFE if caught in English Channel under crack down by Priti Patel

According to The Times’ report of the proposal:

“A Home Office source said the move would ‘send a clear message’ that the government considered smuggling people in small boats in the Channel to be on a par with attempted murder.”

We’ve seen this sort of tough talk before, most recently in the Health Secretary’s proposal that air travellers lying about where they’ve been on a form they fill in upon entering the country could face up to ten years imprisonment (see BBC, Covid-19: 10-year jail term for travel lies defended). The idea that tough sounding sentences send anyone a message is, most criminal practitioners will tell you, ludicrous. Criminals do not generally think that far ahead: without the police resources, the courts, the legal aid lawyers, the CPS staff, the computer systems actually working, the courts actually sitting, and judges and jurors being available, there won’t be a conviction under any of these proposals this side of another general election. (You can’t rush a ten year sentence offence through the mags in a fortnight, or use police-issued PCNs on the day.) And who knows how many prison places might then be available?

All in all it just sounds like, well, just sounds: sound and fury, signifying nothing by way of enforcement action. As Dominic Lawson opined, also in The Times, Tough-guy politicians are cowards at heart: “Ministers brag about imposing life sentences but rarely deliver”. He’s right.

See also: InfoMigrants, UK: People smugglers could face life in prison

Judiciary

Long in tooth and law

There was time when judges could sit for ever, or so it seemed, even if they sometimes appeared to have outlived their marbles, or to be applying the cultural precedents of a bygone era; then it was reduced to 75 and then to only 70. Now, it seems, it is being raised again to 75.

In its response to a public consultation on the Judicial Mandatory Retirement Age, published on 8 March 2021, the government says:

As well as reflecting improvements in life expectancy, the retention of older experienced judicial office holders as a result of a higher MRA will have significant benefits to the supply of judicial resource and will provide a positive benefit for those who wish to continue sitting up to the age of 75, rather than having to retire at 70. In addition, our view is that a higher MRA could have a positive impact by attracting and promoting opportunities for individuals considering a judicial career later in life, such as those who may have had non-linear careers or taken career breaks to balance professional and family responsibilities.

But there is also a recognition in the very next paragraph that judges sitting for longer will block the advance of a possibly more diversified younger generation of judicial appointees. That might be of more concern if all the seats on the Bench were already fully occupied, but there has been for some years a worrying shortage and this is impacting adversely on the administration of justice. Sitting for longer will also enable judges to accumulate better pensions and thereby make the position more financially attractive, or at any rate less unattractive.

Parliamentary time will apparently be found to enact the necessary changes to legislation. A similar change will no doubt be made respecting the Supreme Court judiciary, whose position is covered by different legislation. Commenting on the proposals, Joshua Rozenberg pointed out:

“Today’s announcement will be widely welcomed. There is always a risk that some judges will hang on too long. Others currently choose to retire before they hit 70. But many good people have been lost to the full-time judiciary in the quarter-century or so since the retirement age was lowered from 75.”

Politics

Budget millions

Sounds a lot, but the extra £450m promised “to support the justice system in England and Wales”, which was the only mention of justice in Chancellor of the Exchequer Rishi Sunak’s budget last week, will not go far (unlike Sunak himself it seems).

The Law Society Gazette had a piece expressing the disappointment of the legal professions’ leaders: Budget 2021: Sunak ‘turning a blind eye’ to law and order

Brexit lawbreaking

Not for the first time, the government is threatening to break international law in order to smooth the path of trade disrupted in consequence of the hurriedly concluded post-Brexit trading deals reached with the European Union. This time, says David Allen Green on his Law and Policy Blog, “it is the announcement of a unilateral move in respect of a grace period for for temporary agrifood movements to Northern Ireland.”

For more on this, see: The United Kingdom government says yet again it will break international law — and why this is daft, dangerous, and dishonest

Maternity shuffle

Thanks to the Ministerial and other Maternity Allowances Act 2021, a government minister can now take maternity leave and the Attorney General Suella Braverman QC MP, having been designated as a Minister on Leave under the terms of the Act, has duly done so.

Interim appointments have accordingly been made in her department: Michael Ellis QC MP (previously Solicitor General) as Attorney General and Lucy Frazer QC MP (who previously occupied the role for a short time in 2019) as Solicitor General.

The Attorney General is chief legal adviser to the Crown and has a number of independent public interest functions, as well as overseeing the Law Officers’ departments. It will be interesting to see if the advice given to the government (eg in relation to the item above) changes in the months to come, or rather if the government chooses to take that advice or, as one assume it must on some occasions, ignore it.

Courts

Cause lists : bungled migration

If there was a convenient place on an old website to find all the daily cause lists for the various divisions and subdivisions of the High Court sitting in one or more geographical locations, would it not make sense when moving them to a new website to somehow keep them together and enable users to find them all in the same place on the new site? Especially when the new site is the vast, warehouse-like and almost impossible to navigate Gov.uk supersite?

But no. The migration of cause lists from the Judiciary website to Gov.uk has for some reason separated some courts from the rest, notably the Court of Protection (for no very apparent reason). Most of the court lists from the Royal Courts of Justice and the Rolls Building are on this page of Gov.uk, including the Family Division. But while the Family Division page includes information about the Court of Protection (for logical reasons — they share a President and many of the same judges) the list itself is not to be found there. You have to find, somehow, this other page that deals specifically with the Court of Protection, which you can navigate to via another page called, tantalisingly, “Justice system transparency”, and then click on a links that says See more transparency and freedom of information releases in this topic.

Meanwhile anyone looking for the Patents Court Diary or the Intellectual Property Enterprise Court (formerly Patents County Court) Diary will find a link on the main cause lists page, but no actual content when they try to open the list itself. Just the mysterious legend “To be published”. It all seems very wanting in transparency and helpfulness, as an attempt to make public legal information more accessible.

International Human Rights

Interim measures ordered in Navalny case

The European Court of Human Rights in Strasbourg has ordered the Russian state to release opposition political leader Alexei Navalny from prison. The court granted Navalny’s application for the order because the Russian government “could not provide sufficient safeguards for his life and health”. According to The Guardian,

“Russia has said it will ignore the ruling despite a requirement to comply as a member of the Council of Europe, calling the court’s decision ‘blatant and gross interference in the judicial affairs of a sovereign state’. …

Russia adopted new constitutional amendments last year that said Moscow had the right to ignore international legal decisions that violate its sovereignty.”

The UK Human Rights Blog points out that

“This is not the first time that the Court has granted Navalny’s request for interim measures against Russia. In August 2020, Navalny was the victim of a chemical poisoning whilst on a domestic flight, and the Court ordered Russia to deliver up information about his medical treatment in Russia and to grant access to the patient to assess his fitness for transport… Navalny was subsequently transferred to hospital in Germany, where he recovered, and where the poison was confirmed to be the Russian nerve agent Novichok.”

Navalny himself obtained evidence from a telephone call in which, pretending to be someone else, he managed to fool a senior FSB operative into confessing details of the plot. Most people, once poisoned, would be twice shy. But he, having recovered from the attack, duly returned to Russia in furtherance of his destiny, only to be locked up on the Kafkaesque basis that he had breached his bail terms. Is he safe inside? The Court has power under Rule 39 of the Rules of Court to grant interim measures, but will only do so where there is an imminent risk of irreparable harm. Evidently that threshold was reached in this case.

See: press release from HUDOC

Other recent publications

The Criminalisation of Drill Music and Article 10 of the European Convention on Human Rights

Colette Allen on Inforrm’s blog questions why a particular form of expression is being treated as deserving of legal restriction on the basis of a questionable association with violent criminal behaviour, and the discriminatory double standards this appears to involve.

There was an interesting Tortoise podcast on the same topic last September: Beat police, The law against music in London

The Law

Barrister Gareth Weetman of 7 Bedford Row Chambers, London, provides, for the benefit of six year olds, a brief introduction to the legal system. It’s brilliant. He should be given a TV series.

Facebook’s free speech myth is dead: and regulators should take notice

Carolina Are on Inforrm’s blog discusses the notorious decision of Facebook in Australia to block all news content in response to the country’s government seeking to impose an obligation to pay for news content republished, and monetised through advertising, on the social media platform. The row, says Are, has

“exposed the fragility of Facebook’s founding myth: that Mark Zuckerberg’s brainchild is a force for good, providing a public space for people to connect, converse and cooperate.”

As Are points out, Facebook’s action “provoked a worldwide backlash and accusations of hubris and bullying” and prompted decisions in other countries to start making social media platforms pay for content republished from other sources. Google has agreed to pay for media content in Australia, and presumably will do so elsewhere too, though previous conflicts over this issue in some European countries who wished to impose a fee structure proved less conclusive: Australia seems to have taken a more robust and emphatic approach, and this has paid dividends (for the media, at any rate).

Banking industry-funded police unit cracks down on Covid-19 scams, preventing £20m of fraud in 2020

A specialist police unit funded by the banking and finance industry prevented almost £20 million of fraud and arrested over 100 suspected criminals in 2020, including several involved in scams exploiting the Covid-19 pandemic, according to this report from UK Finance, the collective voice for the banking and finance industry.

However, the sums involved pale into insignificance when one considers the billions frittered away on failed test-and-trace projects over the last year and some of the unscrutinised contractual arrangements rushed into in a vain attempt to obtain personal protective equipment (PPE) for health workers and others in the early months of the pandemic.

Financial regulation is key to understanding the future of the City

Professor Sarah Hall, Dr John Paul Salter and Martin Heneghan on the UK in a Changing Europe website point out that while “a number of high-profile shifts in financial services activity have recently taken place from London to European financial centres, following the end of the Brexit transition period on 31 December 2020”, any more long-term effects on London’s dominance vis-à-vis its European counterparts “has more to do with changes in financial regulation, the trajectory of which is only just beginning to emerge”. Moreover,

“there is a strong likelihood that these departing firms will be replaced, to some extent at least, by new activity with the US and Asia — meaning that London will likely remain Europe’s dominant financial centre for some time.”

UK Sanctions Policy: A Progress Report

With Brexit and the transition period over, the UK has formally embarked on its independent sanctions regime rather than simply implementing that of the EU. Research fellow Emil Dall on the Royal United Services Institute website considers what work has been completed so far and what remains to be done:

“A 2019 report by the House of Commons Foreign Affairs Committee (FAC) labelled the government’s preparations for a post-Brexit sanctions strategy ‘fragmented and incoherent’, with MPs calling on the government to ‘seize the opportunity to become a global leader in sanctions policy’. Since that report was released, both a British general election and the formal separation from the EU have occurred, so has the government arrived at a more coherent sanctions strategy?”

How can a 5-year prison sentence ever reflect the intentional taking of a life?

The Secret Barrister attempts to explain the case of 70-year-old Anthony Williams, who was imprisoned for 5 years for the manslaughter of his wife, Ruth. He had on been acquitted by a jury of murder, having admitted manslaughter by reason of diminished responsibility at an earlier stage of proceedings. The sentence “has struck many as not merely insufficient but insulting; a bitter, grim reminder of the internalised misogyny of a legal system built by men, for men.”

Mischief Wrought

Review by retired Lord Justice of Appeal Stephen Sedley of The Secret Barrister’s latest book, Fake Law, and the myths (such as that of Britain’s litigious “compensation culture”) that it seeks to bust. Sedley is a regular contributor to the London Review of Books, in which this appears.

The Case for the Citizen

Review by former Attorney General Dominic Grieve of a new book by Lord Sumption, Law in a Time of Crisis, which is a collection of the retired Supreme Court Justice’s speeches and essays. Grieve confesses to sharing a love of medieval history with the recently retired justice, whose sometimes challenging scrutiny of the government’s lockdown regime we might have been spared had a recent change in the retirement age of judges been made sooner. (Serving judges are generally more reticent.)

Grieve says he “detects in these essays a sense of release from the constraints of judicial office and a desire to engage with pressing political and moral questions.” However, one may think Grieve is himself being unduly reticent, or slyly mischievous, when he suggests that: “The subtlety of his arguments and the academic rigour that underpins them can leave them open to misinterpretation.”

And finally…

Tweet of the week

offers another reminder of the hazards of remote hearings — and perhaps also of the value of social media to judges in some US states, such as Texas, in making themselves known to the public they serve:

Meanwhile, back in Blighty…

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: Smoke and mirrors: HVA agents Martin Rauch (Jonas Nay) and Fritz Hartmann (Niels Bormann) in the television drama series Deutschland 89.