Covid-19 Inquiry and Government ~ Battle lines drawn

WhatsApp is an online communications technology offering almost instantaneous contact across the globe and also end-to- end encryption. There are millions of users worldwide.

WhatsApp itself only stores communication for a limited period though messages are stored on the internal memory of individual mobile phones / other devices.

Companies such as WhatsApp have raised concerns that the government's ONLINE SAFETY BILL - (currently at Committee Stage in the House of Lords) - will compromise end-to-end encryption and they have threatened to withdraw the service from the UK if the Bill becomes law.

Encryption plays a critical role in protecting day-to-day digital activities like online banking, shopping, preventing theft of sensitive information in data breaches, and making sure private messages stay private. Of course, encryption also makes the medium attractive to individuals engaged in nefarious activities including online child abuse.

Naturally enough, government Ministers and officials have used WhatsApp extensively.  After all, it is easier to dash off a hasty text message than to write a memo, have a formal conversation, or attend a minuted meeting..

In May 2021, Prime Minister Johnson announced a UK Covid-19 Inquiry. Baroness Heather Hallett, a retired Court of Appeal judge, was appointed as Inquiry Chair. Very wide Terms of reference were agreed and published. The Inquiry came into being on 28 June 2022 and operates under the Inquiries Act 2005.

The terms of reference include examination of 'how decisions were made, communicated, recorded, and implemented; ...'

The Act, section 21, empowers the Chairman to require a person to attend (a) to give evidence; (b) to produce any documents in his custody or under his control that relate to a matter in question at the inquiry; (c) to produce any other thing in his custody or under his control for inspection, examination or testing by or on behalf of the inquiry panel.

Section 35 states that -

Coronavirus Pandemic - Collection of Materials

The UK Covid-19 Inquiry is to begin hearing evidence on 13 June 2023 - Module 1 (Preparedness and Resilience).

The hearings will be available to watch on the Inquiry’s YouTube channel, subject to a three minute delay. A transcript of each hearing will be made available at the end of each day. A recording of the hearing will be published on the Inquiry’s website at a later date. Alternative formats, including a Welsh language translation are available on request.

Update: UK Covid–19 Inquiry to begin hearing evidence in June for its first investigation - UK Covid-19 Inquiry (covid19.public-inquiry.uk)

Inquiry update 30 May: New investigations announced - UK Covid-19 Inquiry (covid19.public-inquiry.uk)

During the pandemic, this blog kept an on-going collection of news items - 

Law Commission - Sexual Offences - Myths

The Law Commission has set out provisional proposals aimed at countering the effects of rape myths and misconceptions on the trial process, treating complainants humanely, and ensuring that defendants receive a fair trial.

This is essential reading for all criminal law practitioners and important for all of us.

Could this lead to the end of jury trial in these cases? This possibility is included as one option in the Commission's report. If juries disappear in these cases then it is surely likely that there will be pressure to dispense with them altogether.

Views sought on proposals to counter effects of rape myths in sexual offence trials - Law Commission.

FULL reading of the consultation paper is really essential for any reader who wishes to respond - Download the consultation paper - pdf 727 pages.

Evidence in Sexual Offence Prosecutions - Law Commission

Download the summary of the consultation paper - - pdf 56 pages

Download an overview of the key proposals - - pdf 3 pages

Comment - 'Rape myths' consultation floats curbs on barristers' conduct | News | Law Gazette

Scotland:

Leading Scottish lawyers have condemned plans for trials to be conducted by a single judge without a jury as part of landmark reforms to the country’s justice system.

The Victims, Witnesses and Justice Reform (Scotland) Bill published on Wednesday unveiled changes including scrapping the not proven verdict, changing the size of criminal juries from 15 to 12 and creating a new specialist sexual offences court.

Scottish law firms criticise rape trial pilot scheme without juries as 'not in the interests of justice' | STV News.

Coronation Day arrests - Public Order law

Updated 9, 13, 14 May 2023:  There was much to admire about the policing of the Coronation Procession of HM King Charles III on 6 May 2023. The Police generally interacted with the public in a friendly manner and their control of the large crowd on The Mall was exemplary. Unfortunately, there were 64 arrests on the day including 32 individuals arrested for conspiracy to cause a public nuisance.

Arrests made during policing operation for the Coronation | Metropolitan Police

The Coronation was of course a massive and historic event with some 7,000 service personnel participating. They had rehearsed meticulously to put on a splendid show. It was attended by thousands who simply wished to see and enjoy the processions. They were perfectly entitled to do so. The event was also televised to millions across the world.

Earlier in the week, the Metropolitan Police issued a statement which included a paragraph stating - 'Our tolerance for any disruption, whether through protest or otherwise, will be low. We will deal robustly with anyone intent on undermining this celebration.'

The Coronation of His Majesty The King and Her Majesty The Queen Consort | Metropolitan Police

Having said that they would adopt a low tolerance approach, there is every appearance that the Police did exactly that. The government has insisted that the Police acted independently and without pressure from Ministers - PM backs Met Police amid criticism of ‘bid to disrupt protest’ during coronation (msn.com).

Some of the arrests were of individuals campaigning for

Topical matters

In the legal (and other) news:

1. The Coronation - to be held on 6 May 2023 - has much of both historical and legal interest. 

The Westminster Abbey website has 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)

The Coronation Cases - cases in contract law arising from the cancelled coronation of Edward VII in 1902.

2. Miscarriage of Justice and Compensation - Readers will recall that, back in 2014, the government secured an amendment to the Criminal Justice Act 1988 which has undoubtedly made it much harder to obtain compensation for 'miscarriage of justice.'

In 2019, the UK Supreme Court dismissed appeals by Victor Nealon and Sam Hallam - see the case note available via the ICLR website - R (Hallam) v Secretary of State for Justice - Viewing document - ICLR

At the end of February 2023 their applications to the European Court of Human Rights were 'relinquished' to the Grand Chamber.

Relinquishment in favour of the Grand Chamber Nealon v. UK and Hallam v. UK (coe.int)

Meanwhile, the High Court in Northern Ireland has held that the Northern Ireland Department of Justice was wrong in law to decide that Gerry Adams (President of Sinn Fein from 1983 to 2018) was not eligible for compensation for his conviction for attempting to escape from detention.

His detention arose from the internment without trial regime created by the Detention of Terrorists (Northern Ireland) Order 1972.. 

The Department must now reconsider the case in accordance with the law.

Adams, Application for Judicial Review [2023] NIKB 53 (28 April 2023) (bailii.org)

Joshua Rozenberg has a full explanation - Why is Gerry Adams owed compensation? - by Joshua Rozenberg (substack.com)

The-Supreme-Court’s-misunderstanding-in-the-Gerry-Adams-case.pdf (policyexchange.org.uk) - where Lord Howell of Guildford argued that the Supreme Court was wrong to quash Adams' conviction for escaping detention - (see the Press Release relating to that judgment).

The Northern Ireland Troubles (Legacy and Reconciliation) Bill - Parliamentary Bills - UK Parliamentis currently passing through the House of Lords. An amendment to the Bill was tabled with a view to preventing the payment of compensation in a case such as that of Gerry Adams.

Internment was considered by the 'Bloody Sunday Inquiry' chaired by Lord Saville - see Volume 1 at para 8.49 - Report of the Bloody Sunday Inquiry - GOV.UK (www.gov.uk)

3. Tort and claims for psychiatric illness - formerly known as "nervous shock." The Supreme Court is set to hear three conjoined appeals on 16 - 18 May 2023.  The three cases involve the appellants  witnessing a death or attending shortly after a death caused by the respondent's negligence.

Here are the details as set out on the court's website -

Purchase (Appellant) v Ahmed (Respondent) - The Supreme Court

Polmear and another (Appellants) v Royal Cornwall Hospitals NHS Trust (Respondent) - The Supreme Court

Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent) - The Supreme Court

The Law Commission - Liability for Psychiatric Illness - Law Commission - ' The Government decided not to proceed with our recommendations.'

The departure of Lord Chancellor Raab

Raab at his swearing in

Cards on the table! I am not an admirer of any political agenda that seeks to reduce the rights of the citizen and I am of the view that the Bill of Rights Bill seeks to do just that. 

The architect of the Bill is the Rt. Hon. Dominic Raab MP who, this week, resigned his offices as Secretary of State for Justice, Lord Chancellor, and Deputy Prime Minister. 

Raab's successor in the first two roles is Alexander Chalk KC MP whilst Oliver Dowden MP becomes Deputy PM.

The Bill has received extensive criticism from many legal sources (e.g. Law Society and see the article by Joshua Rozenberg). It has not made any significant progress in Parliament. Who knows, it may be dropped by Raab's successor? I think he would be wise to do so given both the extensive criticism the Bill has received from notable legal sources and also the parliamentary time the Bill is likely to consume.

I do not know Mr Raab and have not met him. I have no reason to like or dislike him on a personal level. In any event, a golden rule in blogging, and in life generally, should be to play the ball and not the man.

As a Minister he was entitled to pursue government policy for which the political party in power was elected and for which the Cabinet has collective responsibility. I would question whether, based on the Conservative Party 2019 manifesto, there is a mandate to, for example, repeal the Human Rights Act 1998.  Ministers are supposed to operate within the Ministerial Code issued by the Prime Minister. 

The civil service operates by the Civil Service Code and is there to advise Ministers. Advice must be thorough and robust and paint a "warts and all" picture so that the Minister can make fully informed decisions. Once a policy decision has been taken and clearly set out, it is then for civil servants to assist in its implementation no matter what their individual views are about the policy.

Complaints were made by civil servants about Raab's conduct in dealing with some officials. This led to an investigation by Adam Tolley KC. The investigation was instigated, at Raab's request, by Prime Minister Rishi Sunak. Tolley was constrained by Terms of Reference set out by the PM. Essentially, Tolley's brief was to establish facts. What to do about any adverse findings was to be left to the PM.

Tolley's report was published on 21 April 2023 and, in fact, describes Raab in rather glowing terms - Investigation report to the Prime Minister - GOV.UK (www.gov.uk). The report states that Raab is highly intelligent, pays close attention to detail and seeks to make decisions based on evidence. He has strong principles and is guided by them in practice. He works assiduously. He likes to use his working time effectively. 

Those are surely qualities to be admired even if they may not be everyone's cup of tea. In Raab's own words, his style is inquisitorial, direct, impatient and fastidious.  As a "boss" he is certainly not going to be your "best mate" and, clearly, you had best be well prepared for any business meeting with him. That's not at all unlike a lawyer ought to be when meeting clients or presenting cases in court. Of course, it is still possible to be courteous and respectful.

It is clear from Tolley's report that, on a number of occasions, Raab caused distress to some in the civil service but he did not do so intentionally. One example is that,

Braverman's "Illegal Migration Bill"

The "Illegal Migration Bill" was presented to the House of Commons on Tuesday 7 March 2023. It contains this remarkable statement:-

The Bill itself may be read at Illegal Migration Bill - Parliamentary Bills - UK Parliament. 

Parliament is being asked by the Home Secretary to legislate in the clear knowledge that the Bill - (or aspects of the Bill) - cannot be said to be compatible with Convention rights. 

Does Braverman's statement make a legal difference? The generally-accepted answer is that statements under section 19 are neither binding on the courts nor legally persuasive. That was certainly the view of  Lord Hope in A, R v. [2001] UKHL 25 (17 May 2001) (bailii.org). Plainly, if a question of compatibility comes before the courts then the judges will do what they consider the law requires in the circumstances of the case.

Politically, it reveals - (if further revelation were required) - that at least some members of the present government view human rights as an obstacle preventing Ministers from getting their way.  Some of the more "hardline" politicians in the UK would take the nation out of the European Convention on Human Rights. The Home Secretary - Suella Braverman KC MP - is among their number.

At present, withdrawal from the convention is NOT officially Conservative Party policy but here we see the government asking Parliament to pass legislation that may be contrary to the European Convention. 

The government is also distancing the UK from the Refugee Convention which, in international law, grants the right to seek asylum and does not require that to be in the first "safe" country reached by the individual.

The European Convention protects the rights of all in the UK and it underpins other international agreements including the Trade and Cooperation Agreement with the EU and the Northern Ireland Good Friday Agreement.

If the government's so-called Bill of Rights Bill proceeds it will repeal the Human Rights Act 1998 and significantly weaken protections within the UK for human rights even though the UK would still be bound in international law by the convention.

Voters may yet have to decide whether they are prepared to allow UK politicians to go further still and remove altogether the protection for fundamental rights offered by the European Convention.

The Bill is discussed in this House of Commons Library briefing - Illegal Migration Bill 2022-23 - House of Commons Library - Research Briefing (parliament.uk)