Monday 29 January 2024

Ireland v UK ~ challenge by Ireland to UK primary legislation

Ireland has instituted an inter-State action against the United Kingdom - New inter-State application brought by Ireland against the United Kingdom - ECHR - ECHR / CEDH (coe.int)

The application is a challenge to sections of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, which received Royal Assent on 18 September 2023. See also the Explanatory Notes issued by the UK government. 

The European Convention on Human Rights enables Ireland to seek enforcement of human rights no matter who holds power at either Westminster or Belfast. Human rights  underpin much of the 1998 Belfast (“Good Friday”) Agreement. 


This is one to keep an eye on although it is perhaps unlikely that much will happen before the next UK general election.


The European Court of Human Rights Press Release provides fuller details .....


Thursday 11 January 2024

UKSC - Paul and others v Royal Wolverhampton NHS Trust - Tort - Negligence

This post is an early look at the Supreme Court's decision in Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent) - The Supreme Court which considered the question - "Can an individual make a claim for psychiatric injury caused by witnessing the death or other horrifying event of a close relative as a result of earlier clinical negligence?"

Tort:

The law of tort is largely judge-made and is often traceable back for centuries. There have been only occasional interventions by Parliament. Claims for damages in tort frequently arise where a claimant (C) argues that a particular defendant (D) owed C a duty of care and that D negligently breached that duty thereby causing reasonably foreseeable damage (e.g. personal injury) to C.

In some situations the liability of D may be relatively easy to establish but there are particular situations where that is far from being the case. In those particular situations, a claimant

Tuesday 2 January 2024

Happy New Year 2024


HAPPY NEW YEAR 2024 to all who visit this blog and it is good to note that a considerable number still do,

The blog is still alive but posts will not be all that frequent because I now wish to  confine things to issues of major importance or significance. 

The first of those is likely to be the Supreme Court's judgment in Paul and another v Royal Wolverhampton NHS Trust (UKSC News) about whether an individual can make a claim for psychiatric injury caused by witnessing the death or other horrifying event of a close relative as a result of earlier clinical negligence?

Please note that I have left Twitter (or X its is now known since Musk took control of it). Let's just say that it is not the platform I joined back in October 2010. 

Here's to a great New Year and let's hope that various conflicts around the world can be resolved.


Friday 22 December 2023

Murder of Brianna Ghey ~ "excepting direction" regarding anonymity of Defendants

Update 2 February 2024:

Two defendants (under age 18) have been convicted of the murder of Brianna Ghey (age 16). Sentencing is to take place on 2 February 2024.

Due to the age of the defendants, an order has been in place throughout the proceedings under section 45 of the Youth Justice and Criminal Evidence Act 1999 (“the Act”) restricting publication of any information that would be likely to identify them as the defendants in these proceedings.

This Order remains in force but the judge - Mrs Justice Yip - has decided that X and Y will be named but not until the sentencing hearing when the judge will give clarity as to the point at which the restrictions cease to apply.

The reasons for the decision are set out at R-v-X-and-Y-Ruling-on-reporting-restrictions.pdf (judiciary.uk)

Youth Justice and Criminal Evidence Act 1999 (legislation.gov.uk)

For the principles of law involved see the Court of Appeal (Criminal Division) decision in KL v R. [2021] EWCA Crim 200 (19 February 2021) (bailii.org)

2 February 2024 - Sentencing:

R -v- Scarlett Jenkinson and Eddie Ratcliffe - Courts and Tribunals Judiciary

Thursday 21 December 2023

Could the terms of the Covid 19 Inquiry be changed?

The Telegraph reports that MPs and peers fear the Covid Inquiry has already decided lockdowns were not hard enough (msn.com).

According to the article, a group of MPs and Peers have the opinion that the Inquiry seems to have already decided that lockdown was necessary and that the inquiry has been focused on whether  pandemic interventions should have been implemented “harder, sooner and for longer”.

It is reported that - 'The scathing comments come in a letter sent to Mr Sunak on Wednesday and signed by more than 20 MPs, peers and scientific experts, demanding he intervenes to change the official scope of the inquiry.'

Would it be possible to change the official scope of the inquiry? The simplistic answer

Wednesday 20 December 2023

Furore over PPE

Background:

'Shortages of personal protective equipment (PPE) at the front-line in the first wave of the pandemic was one of the biggest concerns in March and April 2020. As well as NHS front line workers there were others front-line workers who required high grade PPE – particularly in social care settings, which were mainly private businesses.

That statement of well-known facts is from the House of Commons Public Accounts Committee 42nd report of Session 2019-21 - COVID-19: Government procurement and supply of personal protective equipment (parliament.uk).

The report continues - 'At each stage the Department for Health and Social Care maintain that no setting actually ran out of PPE. We heard compelling evidence from organisations representing front-line workers that stocks ran perilously low; single use items were reused; some was not fit for purpose and staff were in fear that they would run out. 

Government thought it was well-placed

Tuesday 12 December 2023

Parliamentary Sovereignty ~ legal rule or assumption ~ either way it is unsatisfactory

There has been considerable debate about the government's "Rwanda Bill" - Safety of Rwanda (Asylum and Immigration) Draft Bill - GOV.UK (www.gov.uk). In particular, there is discussion within legal circles about whether the courts could somehow "disapply" this if it were to actually become an Act of Parliament (i.e. pass both Houses of Parliament and receive Royal Assent).

The legal discussion has arisen because of a letter published by the Daily Telegraph - Back the Rwanda Bill or risk the sovereignty of Parliament, say KCs (telegraph.co.uk) - in which former Attorney-General Sir Geoffrey Cox KC and three other leading barristers comment that - "[T]he assumption that Parliament is entirely sovereign is only that — an assumption, which the courts have long indicated could be revisited in the event that Parliament did the unthinkable."

The word "assumption" certainly caused constitutional lawyers to go to their keyboards

Wednesday 6 December 2023

Rwanda ~ Now there is a treaty and a Bill

Updated 18 January 2024 (after House of Commons Third Reading).

Following the judgment of the Supreme Court on 15 November 2023 (previous post), the governments of the UK and Rwanda have acted "at pace" to turn what was a Memorandum of Understanding (MoU) in to what is now described as an "agreement." The text may be seen at -

Agreement between UK and Rwanda for the provision of an asylum partnership to strengthen international commitments on the protection of refugees and migrants (publishing.service.gov.uk)

In international law, the agreement is a treaty and, as such, will be legally binding on both States once it is ratified. The word "treaty" is used in other material published by the government - Treaty signed to strengthen UK-Rwanda migration partnership - GOV.UK (www.gov.uk)

The UK Foreign Secretary (James Cleverley MP) has said that -

Tuesday 28 November 2023

Criminal Justice / Sentencing ~ New Bills

Following the King's Speech on 7 November 2023, the government introduced two Bills touching on criminal justice 

Sentencing Bill - and see UK Government Policy Paper

Criminal Justice Bill - and see UK Government Information + UK Government Factsheets. There is also a House of Commons Library Research Briefing

Sentencing Bill:

This is a relatively short Bill of 11 Clauses and 3 Schedules. It makes provision relating to 

1. Whole life orders 

Sunday 26 November 2023

Bona Vacantia ~ Get a will drawn up !

A legal topic known as BONA VACANTIA has resulted in much comment this week - How royal estates use bona vacantia to collect money from dead people | King Charles III | The Guardian

Let's imagine an elderly man Joe. He is 85, lives in a small house, he has a small "nest egg" and survives on low income. His wife died a couple of years ago but they had no children. There are no known relatives and Joe has not made a will but has often told a few friends that he wants what he owns to pass to a couple of charities supported by his late wife.

When Joe dies, what will happen to his property? His

Friday 24 November 2023

Truss - Her selection as Conservative Party leader

Boris Johnson led the Conservative Party to election victory in December 2019 but resigned as party leader in July 2022. The background to that is in a previous post  -  Johnson announces his departure

His resignation required the party to choose a new leader and a lengthy process took place which  culminated in a ballot of party members with Elizabeth Truss emerging as leader. As I wrote at the time, the effect was that there was a "club" choosing the next Prime Minister?

On 6 September 2022, just two days before her death, Queen Elizabeth II duly appointed Truss as Prime Minister.

The appointment of Prime Minister is

Wednesday 22 November 2023

Lucy Letby - fuller details of the Inquiry announced

In August, Lucy Letby was sentence to a whole life order having been convicted of the the murders of babies at the Countess of Chester Hospital - Law and Lawyers: Letby sentenced to Whole Life Term (obiterj.blogspot.com)

An Inquiry was announced - see earlier post

Law and Lawyers: Lady Justice Thirlwall to chair "Letby" inquiry (obiterj.blogspot.com)

The latest information, including terms of reference, may now be seen at the Inquiry website

The Thirlwall Inquiry


Wednesday 15 November 2023

Rwanda judgment 15 November 2023


The UK Supreme Court has (unanimously) dismissed the Home Secretary’s appeal in the Rwanda cases. The court upheld the Court of Appeal's conclusion that the Rwanda policy is unlawful.

This is because there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement to their country of origin if they were removed to Rwanda. 

Full details are on the court's website -

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

Recation of Prime Minister (Rishi Sunak MP) - Rishi Sunak to bring in emergency law after supreme court’s Rwanda ruling | Immigration and asylum | The Guardian

Reaction of Home Secretary (James Cleverly MP) - Illegal Immigration - Hansard - UK Parliament

Tuesday 14 November 2023

The Foreign Secretary in the House of Lords.

Update 29 November 2023

How 
can a prime minister make someone who isn’t an MP foreign secretary? It's a fair question to ask and the answer is set out in the article that asked the question -

David Cameron returns: how can a prime minister make someone who isn't an MP foreign secretary? And what happens now? (theconversation.com)

The elevation of former Prime Minister David Cameron to a life peerage is perfectly lawful though there are some questions about how and when the House of Lords Appointments Commission (HOLAC) is involved in the process. 

Cameron served

Sunday 12 November 2023

Rwanda judgment to be handed down on 15 November 2023

On Wednesday 15 November the Supreme Court of the United Kingdom will hand down its judgment in what may be referred to as the Rwanda appeals.

The court has published further details of the appeals - 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 judgment appealed is at AAA (Syria) & Ors, R (on the application of) v The Secretary of State for the Home Department (Rev1) [2023] EWCA Civ 745 (29 June 2023) (bailii.org) 

and this was itself an appeal from the High Court - AAA v Secretary of State for the Home Department (Rwanda) [2022] EWHC 3230 (Admin) (19 December 2022) (bailii.org)

The Court of Appeal judgment is discussed on this blog at Law and Lawyers: A note on AAA v Secretary of State for the Home Department ~ removals to Rwanda (obiterj.blogspot.com)

The current Home Secretary (Suella Braverman KC MP) doubtless has a lot of political capital riding on the outcome. 

A government "win" will probably

Thursday 9 November 2023

May Sir Mark Rowley stop a planned Armistice Day protest?

Huge controversy has arisen over plans to hold a "Pro-Palestine" protest in London on Saturday 11 November 2023. The date is significant because it is "Armistice Day." 



The Metropolitan Police Commissioner (Sir Mark Rowley) has clearly decided that the legal conditions required to actually prohibit a procession are not met - Armistice Day demo will go ahead - Met Police (thelondoneconomic.com)

Prime Minister Rishi Sunak has said that the planned marches are "disrespectful" and that his job is to hold the Metropolitan Police Commissioner accountable for his decision - Sunak to hold Met chief ‘accountable’ for decision not to ban pro-Palestine march | Metropolitan police | The Guardian
Precisely what the Prime Minister had in mind when he spoke of "accountable" is not clear. The Commissioner is supposedly independent of the government regarding operational decisions.

Law:

1] The European Convention on Human Rights Articles

Wednesday 11 October 2023

A trip around the Inquiries ~ An Update


Updated 13 October 2023 and 26 October 2023

What do we think when the word Inquiry is mentioned? Is an Inquiry a useful fact-finding exercise leading to the Inquiry Chair (who is usually, but not always, a judge or retired judge) making recommendations which government is then free to accept or reject? Or, are inquiries just a way for politicians to push difficult issues aside albeit at sometimes huge expense to the public purse?

In March 2018, the estimable Institute for Government (IfG) published an analysis of such questions - Public inquiries | Institute for Government.

Whatever stance one takes on Inquiries in general, the fact is that there are several on-going inquiries as well as some that have recently completed their task. Here is a brief round-up.

Afghanistan:

Independent Inquiry relating to Afghanistan – Independent Inquiry relating to Afghanistan (iia.independent-inquiry.uk)

On 15 December 2022 the Secretary of State for Defence

Friday 6 October 2023

R v Jaswant Singh Chail

On Christmas Day 2021, Jaswant Singh Chail (then aged 18) was arrested in a private part of the grounds of Windsor Castle in possession of a loaded crossbow. This part of the castle and grounds is never open to the general public. 

In February 2023, Chail pleaded guilty to three offeices - 

1) - Attempting to injure or alarm the Sovereign on 25th December 2021, contrary to section 2 of the Treason Act 1842. The maximum penalty for this offence is 7 years’ imprisonment. 

2) - Having an offensive weapon, contrary to section 1 of the Prevention of Crime Act 1953. The maximum penalty for this offence is 4 years’ imprisonment. 

3) - Making threats to kill, contrary to section 16 of the Offences Against the Person Act 1861. The maximum penalty for this offence is 10 years’ imprisonment. 

On 5 October 2023, Chail came before Mr Justice Hilliard for sentencing.

On Count 1 - 44 months’ imprisonment. 

On Count 2 - 16 months’ imprisonment. 

On Count 3 - 48 months’ imprisonment, with an extended licence period of 5 years. 

The total sentences amount to 9 years’ custody with a further licence period of 5 years.

Sentencing Remarks have been published - R -v- Chail - Courts and Tribunals Judiciary

These are of particular legal interest because

Monday 2 October 2023

Lady Chief Justice of England and Wales



Monday 2 October 2023 saw the swearing in of Dame Sue Carr as Lady Chief Justice of England and Wales.

Dame Sue Carr sworn in as Lady Chief Justice - Courts and Tribunals Judiciary 

Law and Lawyers: Judiciary ~ The next Lord Chief Justice of England and Wales (obiterj.blogspot.com)

A Lawyer Writes | Joshua Rozenberg | Substack 2 October 2023

This appointment has been welcomed and it is the first time that a female has held this office which, in its modern form, dates from the Judicature Acts 1873-75.. 

The current Lord Chief Justice of Northern Ireland is Dame Siobhan Keegan who was appointed from 2 September 2021.

Scotland's senior judges are the Lord Justice General (Lord Carloway) and Lord Justice Clerk (Lady Dorrian - appointed 2016). (Scotland does not use the title Lord Chief Justice or Chief Justice).

Female Chief Justices have been appointed in The Commonwealth - e.g. Helen Winkelmann is currently Chief Justice of New Zealand.

Sue Carr - Wikipedia

Wednesday 20 September 2023

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