Shamima Begum ~ A submission by JUSTICE to the Supreme Court

Let us step back a moment to the early days of the Queen's reign. Her Majesty became Queen on 6 February 1952 upon the death of her father - King George VI (1895-1952). The Coronation service was held at Westminster Abbey on 2 June 1953 and Her Majesty swore the Coronation Oath to govern her territories "according to their respective laws and customs?” 

One part of the ceremony was subjected to a great deal of comment at the time. This was the solemn moment when HRH The Duke of Edinburgh knelt before the Queen and swore to be her "liege man of life and limb and earthly worship". 

Here was a distinct reference

The Labour Party and antisemitism

The Equality and Human Rights Commission (EHRC) was created by the Equality Act 2006 and has extensive powers to conduct investigations relating to equality and diversity and also human rights - Equality Act 2006 s.16. The framework for an investigation is set out in section 20 and Schedule 2 of the 2006 Act. The Commission is empowered to issue Unlawful Act Notices - section 21.

On Thursday 29 October, the Commission issued a report - Investigation into antisemitism in the Labour Party - finding unlawful acts of discrimination and harassment. The Commission's website stated -

"The Labour Party has been served with an unlawful act notice after an investigation into antisemitism by the Equality and Human Rights Commission found it responsible for unlawful acts of harassment and discrimination.

Following

Government by decree

'Government by decree - Covid-19 and the Constitution' was the Cambridge Freshfields lecture delivered on 27 October 2020 by Lord Sumption who was a Justice of the Supreme Court of the UK from 2012 to 2018.

When advertising the lecture, the University of Cambridge Law Faculty said - "The disputes over Brexit last year saw an attempt to make the executive, not Parliament, the prime source of authority in the Constitution. The coronavirus crisis has provoked another attempt to marginalise Parliament, this time with the willing acquiescence of the House of Commons. Is this to be our future?"

The text of Lord Sumption's lecture is now available - Government by decree: Covid-19 and the Constitution.

The lecture began -

Victim Personal Statements and sentencing

Victim Personal Statements "provide a practical way of ensuring that the sentencing court will, consider, in accordance with s.143 of the Criminal Justice Act 2003, "any harm which the offence caused", reflecting on the evidence of the victim about the specific and personal impact of the offence or offences, or in the cases of homicide, on the family of the deceased" - per Lord Judge LCJ in Perkins [2013] EWCA Crim 323.

A number of cases have reached the Court of Appeal (Criminal Division) in which Victim Personal Statements resulted in an offence being placed into a higher category of seriousness. The result of that is of course a longer sentence. Sentencing requires up to date information about the offender at the time of sentencing and a VPS can assist with this but fairness demands that such statements are not only accurate but that the correct procedure is followed when bringing the statements into evidence.

Consider R v Reece Dylan Jones [2020] EWCA 1139.

On 25 October 2019, the appellant

Joesph Karumba Wangige ~ a second prosecution oppressive

The criminal law has a principle that, in the absence of special cirumstancess, a later prosecution cannot be based on substantially the same facts as resulted in a prior conviction - Beedie [1998] QB 356. 

This arose in the case of Joesph Karumba Wangige [2020] EWCA Crime 1319 - Davis LJ, Lavender and Pepperall JJ. 

On the night of 26 November 2016, Mr Wangige was driving his Vauxhall Astra and he ran into Mr Russell Lee (32) who was crossing the road. Wangige did not stop. Mr Lee suffered serious injuries from he died on 30 November 2016.

A Collision report was prepared

Coronavirus: some areas move to greater restrictions

NOTE: The law referred to in this post was replaced from 5 November 2020. The post is retained here for record purposes. 

Amendment Regulations were made by the Secretary of State for Health and Social Care on 22 October and are mostly in force from Friday 23 October 2020. The Regulations move a number of areas into a higher coronavirus alert level. For example, Greater Manchester moved from Level 2 (High) to Level 3 (Very High).

The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium, High and Very High) (England) (Amendment) Regulations 2020 - SI 2020/1154.

Legislation for the 3 levels of alert:

• Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020
• Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) Regulations 2020
• Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020

and see previous post of 13 October 2020.

A very helpful website is Kings Chambers - Living in Tier 3: Useful links and guidance for individuals and families and Useful links for business and The Latest Covid Regulations Practical Guidance

Financial support and political rancour:

UK Internal Market Bill ~ House of Lords Second Reading

The government's UK Internal Market Bill is before the House of Lords and its second reading commenced on Monday 19 October (Hansard) and continued on 20 October (Hansard).  The Bill contains a number of clauses seeking to enable Ministers to breach international law (i.e. the Withdrawal Agreement).  Specifically, the repugnant clauses are 44 (Power to disapply or modify export declarations or other exit procedures), 45 (Regulations about Article 10 of the Northern Ireland Protocol), and 46 (Further provision relating to sections 44 and 45 etc.  Clause 46 seeks to prevent legal challenge on any ground whatseoever.

Lord Judge, a former Lord Chief Justice of England and Wales, moved a motion of regret that - "this House regrets that Part 5 of the bill contains provisions which, if enacted, would undermine the rule of law and damage the reputation of the United Kingdom.”​ The Bill was read a second time (395 votes to 169) with Lord Judge's motion approved. Lord Judge's speech,

Brexit: "High hearts and complete confidence" - if only !

With UPDATES 19, 20 and 22 October

 On 16 October, the Prime Minister issued a statement on the UK-EU negotiations and poured cold water on any remaining optimism about the future UK-EU relationship even though, strictly-speaking, a possibility of a trade deal may still exist. 

This followed the outcome of the 15 October EU Council meeting held in Brussels - see previous post of 16 October.

It is worth recalling the 2019 withdrawal agreement and the political declaration. 

The Withdrawal Agreement recognised the need for both the UK and the EU to take all necessary steps to negotiate 'one or several agreements' governing their future relationship with a view to ensuring that, to the extent possible, those agreements apply from the end of the transition period.'  

In what seems like the now largely forgotten political declaration

UK-EU future negotiations / Constitution Committee Report on Internal Market Bill

The European Council met in Brussels on 15 October and has published its Conclusions regarding the future EU-UK relationship. 

Difficulties remain over the ‘level playing field', governance, and fisheries.(Please see the end of this post for links relating to these topics).

Council noted that the transition period will end on 31 October and expressed concern that progress on "key issues of interest to the Union is still not sufficient for an agreement to be reached."

Nonetheless, Council reaffirmed the EU's determination to have a "close as possible" partnership with the UK on the basis of negotiating directives of 25 February 2020. The Chief Negotiator (Mr Michel Barnier) wil, continue negotiations "in the coming weeks" and Council called on the UK to "make the necessary moves to make an agreement possible."

As regards the Internal Market Bill

Three tier system for Coronavirus restrictions ~ Regulations approved and in force

NOTE: The law referred to in this post was replaced from 5 November 2020. The post is retained here for record purposes.

On 12 October, the Prime Minister announced a new "three tier" system of Regulations aimed at preventing further spread of coronavirus which, according to government data, has already claimed 42,875 lives in the UK. On 12 October there were 13,972 new cases. See Hansard 12 October 2020. The rise in infection (in most areas) from late August has been considerable and it is reported that the government was urged by SAGE to impose a short "lockdown" a few weeks ago - BBC News 13 October.

The new Regulations were "made" by the Minister (Mr Hancock MP) on 12 October 2020 and are - 

• Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020
• Health Protection (Coronavirus, Local COVID-19 Alert Level) (High) (England) Regulations 2020
• Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020

The Medium Regulations - (Tier 1 restrictions) - apply

Troubling times

Following the December 2019 general election, Boris Johnson became Prime Minister of the United Kingdom. He is a man who is noted for ill-judged comments - Business Insider 9 June 2020 - of which the latest is his attack on "lefty" lawyers and other "do-gooders" - The Guardian October 2020.

In an online speech to the Conservative Party Conference, Johnson said - "We’re ..... protecting the public by changing the law to stop the early release of serious sexual and violent offenders and stopping the whole criminal justice system from being hamstrung by what the home secretary would doubtless – and rightly – call the lefty human rights lawyers, and other do-gooders.”

Johnson's reference to the Home Secretary

Coronavirus restrictions ~ possibility of a new restrictions regime as cases rise

Coronavirus is "getting out of control" in the north of England, a minister has said, as she defended government plans to bring in new restrictions.

Gillian Keegan, minister for skills and apprenticeships, said the country was in an "unbelievably serious situation".

That report was published by the BBC on 9 October 2020. The background to the report is government data showing a significant increase in infections - 17540 new cases on 8 October - and rising numbers requiring hospital treatment.

The BBC further reports that a 3-tier system

The Covert Human Intelligence Sources (Criminal Conduct) Bill

On 5 October, the Covert Human Intelligence Sources (Criminal Conduct) Bill passed its Second Reading in the House of Commons by 182 votes to 20.  Very briefly, the Bill aims to empower various bodies to authorise undercover operatives to commit criminal offences.

The Labour Party's position was to abstain because the party supports putting undercover activities on a statutory footing but 20 Labour MPs voted against the Bill. Labour is calling for additional safeguards in the Bill.  The Guardian 6 October and Labour List 5 October.

Opening the Second Reading debate, the Minister (Mr James Brokenshire MP) set out the purpose of the Bill - "... the Bill deals with participation in criminal conduct by covert human intelligence sources - so-called CHIS. These are agents, or undercover officers, who help to secure prosecutions and disruptions by infiltrating criminal and terrorist groups."

In reality, it is not merely

Overseas Operations (Service Personnel and Veterans) Bill

This post considers the controversial Overseas Operations (Service Personnel and Veterans) Bill but first a note about the Independent Review of Administrative Law (IRAL).

The Independent Review of Administrative Law (IRAL) - post 4 August 2020 - issued a call for evidence “on how well or effectively judicial review balances the legitimate interest in citizens being able to challenge the lawfulness of executive action with the role of the executive in carrying on the business of government, both locally and centrally”.

The IRAL panel is chaired by former minister Lord Faulks QC and includes academics and leading administrative law barristers.

The call for evidence, which can be viewed here, commenced on 7 September and is running until midday on 19 October 2020.

 The IRAL was enivisaged by the 2019 Conservative Party manifesto  (Page 48) which also contained this statement (page 52) -

UK - EU Negotiations on the Future Relationship ~ Round 9

Round 9 of the UK-EU Future Relationship negotiations ended on 2 October with statements by the Chief Negotiators:

Lord Frost - Statement 2 October 2020

Michel Barnier - Statement 2 October 2020

Prime Minister and EU Commission president Ursula von der Leyen will speak in a video call later  - BBC News 3 October 2020

It remains to be seen whether agreement can be reached. Only 89 days now remain to the end of the transition period which, let it be remembered, could have been extended had the UK government so requested.

The United Kingdom Internal Market Bill passed the House of Commons and received first reading in the House of Lords on 30 September. The Bill continues

The Coronavirus Act 2020 continues

 

A Guardian headline of 29 September 2020 stated - "The Coronavirus Act is an attack on our liberties. MPs must seize this chance to scrap it." The author, Martha Sprurrier, (Barrister and Director of Liberty) wrote -

"As for democratic process, this Act has done untold damage. Its very existence normalises the concentration of extraordinary power in the hands of the government and the police. It sends a signal to authoritarian regimes the world over – when people think extraordinary times call for extraordinary measures, take full advantage. This week’s vote could not have more riding on it."

There is no doubt that some provisions of the Coronavirus Act 2020 give rise to major libertarian concerns. A notable example is Schedule 21 - Powers relating to potentially infectious persons. (For more detail on Schedule 21 see this previous post of 2 April 2020).

The Coronavirus Bill