Northern Ireland - new (controversial) legislation

On Monday 18 September, several Acts received Royal Assent (here).  Included in the list was the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023.

The Secretary of State for Northern Ireland argues that - 'The legislation contains finely balanced political and moral choices. It presents us all with a real opportunity to deliver greater information, accountability and acknowledgement to victims and families, moving away from established mechanisms that have left far too many empty-handed' - NI Troubles (Legacy & Reconciliation) Act receives Royal Assent - GOV.UK (www.gov.uk).

The government has published further explanation of the legislation - Explainers relating to the Northern Ireland Troubles (Legacy and Reconciliation) Bill - GOV.UK (www.gov.uk).

The Bill establishes a new body, the Independent Commission for Reconciliation and Information Recovery (ICRIR). It is argued that investigations conducted by the ICRIR will be capable of fulfilling the State's obligations under the European Convention on Human Rights - Arts 2 and 3.

There are reports of unhappiness with the arrangements to be made by the Act.

One possibility is an inter-State case brought by Ireland against the UK - Varadkar restates Ireland will consider taking interstate case if UK Legacy Bill is passed | UTV | ITV News.

A view has been expressed that Ireland would be advised to hesitate and consider these legal points before suing the UK over its legacy act (msn.com). A number of points are made by barrister Dr Austen Morgan.

Another possibility is legal challenges in the UK courts - Troubles legacy: Controversial bill facing more legal challenges - BBC News. Some of those challenges may, in time, find their way to the European Court of Human Rights.

Reading:

Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 - Parliamentary Bills - UK Parliament

Northern Ireland Troubles (Legacy and Reconciliation) Bill 2022-2023 - House of Commons Library (parliament.uk)

Joint Committee on Human Rights 2022 - Northern Ireland Troubles (Legacy and Reconciliation) Bill (parliament.uk)

Joint Committee on Human Rights 2015 - Human Rights Judgments - Human Rights Joint Committee (parliament.uk)

Independent Commission for Reconciliation & Information Recovery (icrir.independent-inquiry.uk)

UPDATE 23 September 2023

Council of Europe voices 'serious concern' over the British government failure to address legacy bill shortcomings - The Irish News

Supreme Court - Rwanda Appeal - October 2023

The Supreme Court of the UK resumes hearing cases at the start of Michaelmas Term which commences on 2 October 2023 - Judicial Sittings 2023 Michaelmas Term - The Supreme Court.

Of the appeals to be heard, it will be the government's appeal relating to the Rwanda policy that come to political and public attention. The appeal will be heard from 9 to 11 October.

The Court of Appeal (Civil Division) judgment was handed down in April 2023 - Law and Lawyers: A note on AAA v Secretary of State for the Home Department ~ removals to Rwanda (obiterj.blogspot.com)

The legal questions to be decided by the Supreme Court are set out at R (on the application of AAA and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent) - The Supreme Court

The court's constitution is to be Lord Reed (President), Lord Hodge (Deputy President), Lord Lloyd-Jones, Lord Briggs and Lord Sales. By October, those will be the five most senior Justices.

Currently the court has only one female member - Lady Rose. As Joshua Rozenberg notes - Justices named for Rwanda appeal - by Joshua Rozenberg (substack.com) - that is likely to change in the near future.

Biographies of the Justices - The Supreme Court

Illegal Immigration Act received Royal Assent on 20 July 2023 - (Explanatory Notes).

8 September 2022 - the death of HM Queen Elizabeth II

Looking back at the events following the death of HM Queen Elzabeth II -

Law and Lawyers: HM Queen Elizabeth II - Events of 8 to 19 September 2022 (obiterj.blogspot.com)

and my look at Royal Finances (obiterj.blogspot.com)

The Coronation of HM King Charles III was held on 6 May 2023.

Westminster Abbey published information about previous coronations, the ceremony, and the regalia - Coronations at the Abbey  and see the House of Commons publication - The Coronation: history and ceremonial.

A good survey of the Crown and the Constitution is by David Torrance and may be seen at The Crown and the constitution - House of Commons Library (parliament.uk)

Lady Justice Thirlwall to chair "Letby" inquiry

On 18 August 2023, the government announced a non-statutory independent inquiry to examine the circumstances behind the murders and attempted murders of babies at Countess of Chester Hospital. The inquiry will look at the circumstances surrounding the deaths and incidents, including how concerns raised by clinicians were dealt with.

Government orders independent inquiry following Lucy Letby verdict - 18 August 20203 - GOV.UK (www.gov.uk)

In a statement to the House of Commons (4 September 2023) the Secretary of State for Health and Social Care said that  Lady Justice Thirlwall has been appointed to chair the statutory inquiry.

Secretary of State oral statement on Lucy Letby statutory inquiry - GOV.UK (www.gov.uk)

Lady Justice Thirlwall - Courts and Tribunals Judiciary

Lady Justice Thirlwall appointed to lead the Statutory Public Inquiry | Switalskis Solicitors

Terms of Reference for the inquiry have yet to be agreed.

Ryan's Rule in Queensland, Australia:

Ryan’s Rule | Clinical Excellence Queensland | Queensland Health

Martha's rule: Government to explore bringing in change after tragic teen death - BBC News

Letby ~ Inquiry will have statutory powers

On 18 August 2023, the government announced a non-statutory independent inquiry to examine the circumstances behind the murders and attempted murders of babies at Countess of Chester Hospital. The inquiry will look at the circumstances surrounding the deaths and incidents, including how concerns raised by clinicians were dealt with.

Government orders independent inquiry following Lucy Letby verdict - 18 August 20203 - GOV.UK (www.gov.uk)

There were widespread calls for the inquiry to have statutory powers and, on 30 August 2023, it was announced that the inquiry will have statutory powers and will be chaired by a judge.

UK Government 30 August 2023 - Legal powers given to Lucy Letby inquiry - 30 August 2023 - GOV.UK (www.gov.uk)

The government announcement states that the Secretary of State took this decision after listening to the views of families of the victims. The move give the inquiry legal powers which include compelling witnesses to give evidence under oath. 

The Inquiry chair has yet to be appointed and Terms of Reference will have to be agreed and published.

Letby sentenced to Whole Life Term

Update 16 September 2023 - Lucy Letby to appeal against conviction over babies’ murders | Lucy Letby | The Guardian

It is in the nature of criminal law that the worst of human actions come before the Crown Courts. The same courts also bear witness to human dignity at its best. So it was at the sentencing hearing of Lucy Letby at the Crown Court in Manchester. 

Letby was sentenced on 21 August 2023 to life imprisonment with an entirely appropriate and expected whole life order having been convicted on 7 counts of murder. Her victims were babies placed under her care as a hospital nurse at the Countess of Chester Hospital. Letby was also convicted on 6 counts of attempted murder.

Prior to the judge handing down sentence, the court heard personal statements from the parents who displayed remarkable courage and dignity. 

A redacted version of the sentencing remarks of Mr Justice Goss are available at R -v- Letby - Courts and Tribunals Judiciary

ULEZ - expands 29 August 2023

 

The image shows the boundary of the Ultra Low Emission Zone (ULEZ) that will apply in Greater London from 29 August 2023.

Details of the scheme are at ULEZ Expansion 2023 - Transport for London (tfl.gov.uk) with more useful information at ULEZ Map - London ULEZ Map 2023

Ulez: What is it and why is its expansion controversial? - BBC News

Legal power:

The power to implement the scheme is in the Greater London Authority Act 1999 - in particular Part IV (Transport).

"Just Stop Oil" protesters - lengthy sentences not manifestly excessive

October 2022 saw two "Just Stop Oil" protesters climb the Queen Elizabeth II bridge which carries the A282 road over the River Thames. It is the only way, by road, to cross the river to the east of London.

The bridge had to be closed until the protest ended and numerous vehicles endured long delays - Just Stop Oil protesters removed from Dartford Crossing bridge and arrested | Just Stop Oil | The Guardian 18 October 2022.

One of the protester's demands was for the government to halt all new oil and gas licences but it appears that such demands have fallen on deaf ears - Sunak announces major expansion to North Sea oil drilling - here's why it's so controversial (inews.co.uk)

The two protesters - Morgan Trowland (now aged 40) and Marcus Decker (now age 34) - stood trial in the Crown Court at Basildon before HHJ Collery KC and a jury. They were charged with intentionally or recklessly causing a public nuisance - s78 of the Police, Crime, Sentencing and Courts Act 2022.

Both men were convicted on 4 April 2023 and, on 21 April 2023, Trowland was sentenced to 3 years imprisonment and Decker to 2 years 7 months.

The men appealed against their sentences claiming that the sentences were manifestly excessive and otherwise a disproportionate interference with their rights of freedom of expression and assembly under Articles 10 and 11 of the European Convention on Human Rights and so unlawful contrary to s. 6 of the Human Rights Act 1988.

The Court of Appeal (Criminal Division)

A right to a Bank Account?

Life without a bank account would be exceptionally difficult in modern society but is there a right to have a bank account? 

That question has come to the fore because of events involving politician and broadcaster Nigel Farage, Coutts Bank, and Natwest Bank. There is no need here to rehearse those particular events except to note that Mr Farage said that he would be campaigning for a right to have a bank account.

In 2014 when the European Union issued a Directive (here) requiring Member States

Data Subjects ~ Access to Data

The UK's first Data Protection legislation came in 1984  - Data Protection Act 1984 (repealed 1 March 2000). 

The 1984 Act followed the Younger Report on Privacy (1972), the Lindop Report on Data Protection (1978), and the 1981 European Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. (This Convention is the work of the Council of Europe and not the European Union. The UK ratified the Convention on 26 August 1987).

Subsequently, the

Ukraine ~ Sanctions etc.

Russia's so-called "Special Military Operation" in Ukraine commenced 24 February 2022.

Sanctions:

Sanctions have been put in place by the UK as well as several other nations and the European Union.

The following links provide further information -

1) The imposition of sanctions is authorised in law by the Sanctions and Anti-Money Laundering Act 2018 and, in relation to Russia, by the Russia (Sanctions) (EU Exit) Regulations 2019.  

2) UK Government - 

a) UK sanctions regimes - GOV.UK (www.gov.uk)

b) Sanctions List and Asset Freeze List

c) UK Financial sanctions - General Guidance 

Inquiries Round Up

It is almost a year since I last wrote a "round up" about the various on-going inquiries - Law and Lawyers: Covid 19 and other inquiries - 29 July 2022. Frome time-to-time "updates" were added to that post.

An ICLR Roundup:

In their Weekly Notes, the ICLR has included a useful "round up" showing the state of play at those inquiries which are either still on-going or have concluded taking evidence but have yet to issue reports.

Weekly Notes: legal news from ICLR, 14 July 2023 - ICLR

Other reports:

In addition to the ICLR's round up, it is worth noting:

R v Carla Foster ~ Appeal on Sentence

A previous post looked at the tragic case of R v Carla Foster who, in June 2023, was sentenced to 28 months imprisonment for administering poison with intent to procure a miscarriage - (Offences Against the Person Act 1861 section 58). 

Although this was plainly a serious offence, there were a number of exceptional features. Whilst a sentence of imprisonment was inevitable, the question was whether the term could be low enough to enable the imprisonment to be suspended but with requirements aimed at rehabilitation.

The sentencing judge, Mr Justice Pepperall, considered that he was unable to reduce the sentence below 28 months. This could not be suspended because it exceeded 2 years.

On appeal, the sentence was reduced to 14 months imprisonment to be suspended for 18 months from the date when she was first sentenced. There is also a rehabilitation requirement of up to 50 days to give her the opportunity to engage in various interventions designed to assist her, including counselling.

The Court of Appeal's summary judgment was published on 19 July and full reasons for the decision will be handed down in due course.

Earlier post - Law and Lawyers: R v Carla Foster - 28 months imprisonment - abortion (obiterj.blogspot.com)

Appeal - Summary of the court's judgment - R -v Carla Foster (judiciary.uk)

Covid-19 Inquiry ~ Cabinet Office ~ Inquiries Act 2005

A previous post outlined the issue between the Chair of the UK Covid-19 Inquiry and the Cabinet Office - Law and Lawyers: Covid-19 Inquiry and Government ~ Battle lines drawn (obiterj.blogspot.com). 

The Inquiry Chair (Baroness Hallett) had issued a notice, under the Inquiries Act 2005 section 21, for the government to produce certain material which, in her view, related to matters to be investigated (in Module 2) by the inquiry. The government brought judicial review to challenge the notice. The High Court held that the notice was valid.

The court recorded that the Cabinet Office may respond to the notice by making an application pursuant to section 21(4), that it is unreasonable to produce material which does not relate to a matter in question at the inquiry. It will be for the Chair of the Inquiry to rule on that application. 

Therefore, the court's ruling does not mean that everything produced to the Inquiry will necessarily be published in full. Material supplied to the inquiry that is ruled not to relate to a matter in question at the inquiry is to be returned.

The 16 page judgment is at Cabinet Office -v- Chair of the UK Covid-19 Inquiry - Courts and Tribunals Judiciary. The government indicated that it would not appeal.

A note on AAA v Secretary of State for the Home Department ~ removals to Rwanda

On 13 April 2022, the then Home Secretary (Priti Patel MP) signed a "Memorandum of Understanding" (MoU) with the government of Rwanda (represented by Vincent Biruta - Minister for Foreign Affairs and International Co-operation). The document may be read HERE. The MoU (or 'arrangement') expressly states that it is not binding in international law.

Former Attorney-General Suella Braverman KC was appointed Home Secretary on 6 September 2022 and has held the post since apart from a 6 day 'break' in October 2022.

The government wished to start implementing removals to Rwanda but judicial review proceedings were commenced in relation to several cases. The review was decided by the High Court (Lewis LJ and Swift J) in December 2022 -

AAA v Secretary of State for the Home Department (Rwanda) [2022] EWHC 3230 (Admin) (19 December 2022) (bailii.org).

Essentially, the High Court upheld the relocation policy but quashed the Home Secretary's decision in eight cases due to flaws in the implementation of the policy. The Home Secretary was entitled to reconsider the 8 cases in the light of the court's judgment.

Appeals against the High Court upholding the policy were inevitable. The

Mr Farage, PEPs and Banking Due Diligence

On Thursday 29 June 2023, the politician and broadcaster Nigel Farage announced that his bank (not named) had closed his bank accounts. He said that the bank simply stated that it was for 'commercial reasons' but, in his announcement, he went on to suggest that it may have been because he was a "Politically-Exposed Person" (or PEP). He had approached several other banks but had not been able to open new accounts

Farage is a particularly high profile individual and was a leading campaigner for Brexit - (the UK's departure from the EU). He was a Member of the European Parliament (MEP) from 1999 to 2020. In 2021, Farage relinquished his leadership of the political party Reform UK but, at the same time, became its honorary President.

The Financial Conduct Authority (FCA) has a clear explanation of Enhanced Due Diligence for High-risk Customers. This notes that - 'Politically exposed persons (PEPs) are individuals whose prominent position in public life may make them vulnerable to corruption. The definition extends to immediate family members and known close associates.'

The full definition of a PEP

Committee on Privileges - Special Report on Intimidation

The House of Commons Committee on Privileges has issued a further report -

Matter referred on 21 April 2022: Co-ordinated campaign of interference in the work of the Privileges Committee (parliament.uk)

This follows on from the committee's earlier report into whether former Prime Minister Boris was in contempt of Parliament. (For earlier report see Committee of Privileges and Boris Johnson). The House itself approved the committee's report and thus held that Johnson was in contempt.

A number of notable individuals are named in this special report and there is a recommendation (at para 20).

Para 22 notes that - 'It will be for the House to consider what further action, if any, to take in respect of Members of the House referred to in this special report.'

Constituency boundaries

No later than 28 January 2025, a new House of Commons must be elected at a general election. The political likelihood is that the election will be held much sooner - e.g. May or June 2024.

Subject to approval by the House of Commons, new constituencies will apply.as a result of proposals put forward by the four Boundary Commission within the UK. 

England:

The Boundary Commission for England has put forward its proposals -

Boundary Commission for England publishes final recommendations for new Parliamentary constituencies | Boundary Commission for England (independent.gov.uk)

Scotland:

Bill of Rights Bill will not proceed

The Secretary of State for Justice (Mr Alex Chalk KC MP) informed MPs that the Bill of Rights Bill will not proceed further. Here is the extract from Hansard. Chalk's response speaks for itself  .....

Bill of Rights Bill - Parliamentary Bills - UK Parliament 

Hansard 27 June 2023 - Oral Questions - Justice - Topical Questions 

Committee of Privileges and Boris Johnson - 2

Updated 20 June 2023.

Former Prime Minister Boris Johnson resigned as MP before the Committee on Privileges report was published. The committee was, he declared, a Kangaroo Court and his numerous supporters leapt into action on Twitter and elsewhere to back him up.

The fair-minded observer would know that the Committee on Privileges acts only when a matter is referred to it by the House of Commons. 

Johnson was referred in April 2022 - Referral of Prime Minister to Committee of Privileges - Hansard - UK Parliament. 

The observer would also know that the committee may only investigate the referred matter and report its findings back to the House. The decision about what to do as a result of the report rests entirely with the House. The committee's final report was issued 15 June 2023 - Matter referred on 21 April 2022 (conduct of Rt Hon Boris Johnson): Final Report (parliament.uk).

Between April 2022 and June 2023 the committee received advice