Dominic Raab MP - the Lord Chancellor - on judicial review and human rights

On 15 September 2021, the Prime Minister moved Dominic Raab MP from the Foreign and Commonwealth Office to the Ministry of Justice to replace Robert Buckland QC MP as Secretary of State for Justice and Lord Chancellor. Raab was "sworn in" as Lord Chancellor on 23 September 2021. 

The reasons for moving Raab to Justice were not made entirely clear but we might surmise that Buckland was considered to be not going far enough with his reforms to judicial review which I wrote about earlier.

Raab was at Justice previously. He was Parliamentary

Coronavirus - lessons learned - Parliamentary report

The House of Commons and Science and Technology Committee and Health and Social Care Committee have published their Report, Coronavirus: lessons learned to date, examining the initial UK response to the Covid pandemic.

 Coronavirus: lessons learned to date report published - Committees - UK Parliament

Covid vaccine programme “one of most effective initiatives in UK history” but delay to first lockdown a “serious error” that should have been challenged.

• Read the full report (HTML)
• Read the report's summary (HTML)
• Read the report's conclusions and recommendations (HTML)
• Read the full report (PDF)
• Find all publications related to this inquiry, including oral and written evidence

The 150-page Report contains

Arrest - some basic notes on a difficult topic

"You have eroded the confidence that the public are entitled to have in the police forces of England and Wales. It is critical that every subject in this country can trust police officers when they encounter them and submit to their authority, which they are entitled to believe is being exercised in good faith" - Sentencing remarks - Lord Justice Fulford - 30 September 2021 - R v Couzens. 

Powers of arrest are a difficult legal topic but they have come to greater public prominence due to the actions of Wayne Couzens who kidnapped, raped and murdered Sarah Everard. Couzens was a serving Police Officer who purported to arrest Sarah as she was walking home having visited a friend. 

What does the law say about arrest and use of force?

Arrest with a warrant

An arrest may be authorised by the warrant of a Justice of the Peace - Magistrates' Courts Act 1980 section 1 which enables a JP to issue either a summons or issue a warrant to arrest an individual and bring him before a Magistrates' Court.. 

Arrest without warrant:

The Police

Wayne Couzens - Whole Life order for the murder of Sarah Everard

Sarah Everard (33) was murdered by Wayne Couzens who, at the time, was a serving Police Officer. He was sentenced on 30 September 2021 to a Whole Life Order.

The sentencing remarks are published on the Judiciary website. The remarks are essential reading for anyone who wishes to find the facts and understand the sentencing process.

Last Post and Cheerio

This blog commenced over 11 years ago on 14 January 2010 - (A new blog).  The aim was that the blog would throw at least a little light on the laws which govern us and the lawyers who implement those laws. I hope that, at least in some way, that objective has been achieved and that I have spoken for fairness (Pro Aequitate Dicere). As I write, the blog has published 2234 posts and has received 2,877,077 pageviews. I think those are reasonably respectable figures for an individual blog and I am grateful to the many who have shown interest and offered comment.

There is much to be done in the legal world and

A Codified Constitution?

It is frequently argued that the United Kingdom ought to have a codified ("written-down") constitution. For example, here is an earlier look at this question (post 28 November 2019).

The UK's constitutional arrangements are a product of history and the arrangements have to be divined from a complex mixture of common law, legislation, and practices (or conventions) generally accepted by those who exercise powers within the system. There is no single starting-point document labelled "The Constitution".

In Cherry / Miller 2 [2019] UKSC 41, Lady Hale said (para 39) - "Although the United Kingdom does not have a single document entitled "The Constitution", it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice."

That is all very well but, for the majority of citizens, the arrangements are shrouded in mystery rather like the arcane learnings and rituals of some ancient religion.

A codified

UK constitutional arrangements - the legislative power of Parliament

Parliament is the UK's supreme legal authority. Parliament's website sets out the principle -  

"Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK which can create or end any law ....."

The word "sovereignty" has different meanings - (discussed at Watching the Law October 2020).  The term "Parliamentary Sovereignty" refers to the point that Parliament has legislative supremacy - that is, the power to make any law whatever. Further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.

The law textbooks

UK constitutional arrangements ~ House of Lords

"For Parliament to have legitimacy, it must be elected. The House of Lords should be a fully elected second chamber" - Unlock democracy

During the Brexit campaign there was a common complaint that the European Union had a democratic deficit - see, for example, EU facts behind claims: democracy and Civitas - Democracy in the EU (pdf). 

Such concerns are usually levelled at either the "unelected" Commission in Brussels or at the European Parliament which is elected by the voters in the Member States but only has the powers given to it by the European Treaties. 

Critics of the EU

A villain in the constitution

103 years ago, Parliament enacted the Representation of the People Act 1918.  The Act extended the franchise in Parliamentary elections to men over age 21, whether or not they owned property, and to women aged over 30 who resided in the constituency or occupied land or premises with rateable value of £5 or above, or whose husbands did.

The Act (section 20) also contained provision for Commissioners to prepare a scheme under which "as nearly as possible one hundred members shall be elected to the House of Commons at a general election on the principle of proportional representation ..."  A single transferable vote system was envisaged. In the event, the scheme was never set up and, ever since, the UK has continued with "first past the post" (FPTP) elections for the House of Commons.

First past the post undoubtedly has its supporters

The Mark Duggan case ~ a recent report by Forensic Architecture

Questions continue to be raised about the August 2011 shooting in London of Mark Duggan. On 26 May 2021, the Independent Office for Police Conduct (IOPC), refused a request by "Forensic Architecture" to reopen the investigation by its predecessor (the Independent Police Complaints Commission - IPCC) into the shooting of Mark Duggan on 4 August 2011 - see IOPC letter to Forensic Architecture.

Brief facts:

On the evening of 4 August 2011,

On-going Inquiries ~ catch up

Here is a "catch-up" on a number of ongoing inquiries - 

Independent Inquiry Child Sexual Abuse - website - set up 7 July 2014 but reconstituted in February 2015 as a statutory inquiry under the Inquiries Act 2005 - Since 11 August 2016, chaired by Professor Alexis Jay. The inquiry has issued several investigation reports as well as an Interim Report to Parliament (April 2018).  The Inquiry website states 'although our programme of public hearings is now complete, work is ongoing and all information gathered with inform the Chair and Panel's recommendations in the Inquiry's Final Report.'

Undercover Policing - website - set up 12 March 2015 - first Chairman

Recent articles: Dissolution of Parliament ~ Judicial Review ~ Constitutional failings

A number of interesting articles have been published recently about the Dissolution and Calling of Parliament Bill and the Judicial Review and Courts Bill. 

Dissolution and Calling of Parliament Bill:

This is a government bill introduced to repeal the Fixed-term Parliaments Act 2011 and to "revive" the former prerogative power to dissolve Parliament so that a Prime Minister will be able to "call" a general election at any time. It appears that the revived power will exist in law only because of the new Act. The power will not be justiciable in the courts.  See the House of Commons Library briefing 

Two earlier posts

Justice Committee - Report on the Future of Legal Aid

The House of Commons Justice Committee has published a report - "The Future of Legal Aid" - 3rd Report of Session 2021-22.The Committee noted that - "... , on the evidence submitted to this inquiry, we are concerned that there are not enough legal aid providers in certain areas, and without urgent action, that situation is certain to worsen over the next decade."

After a decade

Judicial Review and Courts Bill ~ Criminal Courts and Coroners

Crown Court Exeter

The Judicial Review and Courts Bill was published on Wednesday 21 July 2021.  The House of Commons is in summer recess from 22 July to 6 September. A further recess will take place for party conferences - 23 September to 18 October.

This post highlights some of the features of the Bill in so far as criminal justice and Coroners are concerned.

Judicial Review and Courts Bill - GOV.UK (www.gov.uk)

Explanatory Notes

: Criminal Justice :

Judicial Review and Courts Bill ~ proposed changes to judicial review

The Judicial Review and Courts Bill was published on Wednesday 21 July 2021.  The House of Commons is in summer recess from 22 July to 6 September. A further recess will take place for party conferences - 23 September to 18 October.

Judicial Review and Courts Bill - GOV.UK (www.gov.uk)

Explanatory Notes

Overview of the Bill:

The Bill divides

Coronavirus Log ~ Part 11 ~ from 19 July 2021

This post is a continuation of the Coronavirus Log.  See Coronavirus Log Part 1 - (December 2019 to 28 April 2020) - Part 2 (29 April 2020 to 24 May 2020) - Part 3 (25 May to 21 June 2020) - Part 4 (22 June to 26 July 2020) - Part 5 (27 July to 1 November - Part 6 (2 November 2020 to 13 February 2021) - Part 7 (13 February 2021 to 11 April 2021). - Part 8 (12 April 2021 to 16 May 2021) - Part 9 (17 May 2021 to 20 June 2021) - Part 10 (21 June 2021 to 18 July 2021)

Law and Lawyers - Coronavirus Restrictions England - Changes from 19 July 2021

International comparisons may be seen via the website of the European Centre for Disease Prevention and Control. 

(Monday) 19 July 2021 -

Northern Ireland ~ important developments

This post notes two significant developments relating to criminal justice and legal process in Northern Ireland. 

Extension of non-jury trial:

An Order extending the possibility of non-jury trial in Northern Ireland to 31 July 2023 was approved. Non-jury trial is available in situations provided for in The Justice and Security (Northern Ireland) Act 2007 and the power to extend the 'effective period' is in section 9.

The Justice and Security (Northern Ireland) Act 2007 (Extension of Duration of Non-jury Trial Provisions) Order 2021 (legislation.gov.uk)

Legacy of Northern Ireland's past:

A statement was made in the House of Commons on 14 July by the Secretary of State for Northern Ireland (Brandon Lewis MP).

Coronavirus Restrictions ~ Changes from 19 July

On 14 and 15 July, with a stroke of his Ministerial pen, the Secretary of State for Health and Social Care (Mr Sajid Javid MP) "made" two important Statutory Instruments. The changes apply only to England. The law is different in Wales, Scotland, and in Northern Ireland.

The Health Protection (Coronavirus, Restrictions) (Steps etc.) (England) (Revocation and Amendment) Regulations 2021 - [SI: 2021/848] - in force 11.55 pm on 18 July 2021. 

The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) Regulations 2021 - [SI: 2021/851] - in force partly on 19 July 2021 but fully in force from 16 August 2021. 

For both sets of new Regulations, the government has

Overseas Development Assistance (ODA)

Has the statutory duty on Ministers to apply 0.7% of Gross National Income (GNI) to Overseas Development Aid (ODA) been superseded by a vote in the House of Commons? This may appear to be the case but this post argues that under the statutory scheme it is lawful even if, politically, a reduction in ODA is considered to be undesirable.

The statutory scheme:

The International Development (Official Development Assistance Target) Act 2015 places a duty on the Secretary of State to "ensure that the target for official development assistance ... to amount to 0.7% of gross national income ... is met by the UK in the year 2015 and each subsequent calendar year" - section 1.

The Secretary of State has to report to Parliament if the target is not met - section 2 - and to explain why the target has not been met. 

The Act plainly envisages that it may not be met if, for example, economic circumstances reduce gross national income.

Section 3 provides

Challenge to Northern Ireland Protocol dismissed by the High Court of Northern Ireland

" ... comparing Northern Ireland to a colony or the Vichy government in France under the Nazi regime during the Second World War are wide of the mark and unhelpful" - Mr Justice Colton.

The Brexit negotiations were a long and tortuous road but resulted in the UK leaving the EU on 31 January 2020. A transition period followed up to 31 December 2020. The UK left under the terms of a Withdrawal Agreement (WA) dated 17 October 2019.  

Article 182 of the WA provides that an integral part of the Agreement is the Ireland / Northern Ireland Protocol. (NIP). 

In March 2021, an application for judicial review