Brexit - another legal challenge

High Court Belfast

The Irish Times 11th August - Belfast rights campaigner begins legal challenge to Brexit

"A campaigner for the rights of victims of the Troubles has launched the first legal challenge in Northern Ireland to the UK leaving the European Union.  Raymond McCord lodged papers at the High Court in Belfast on Thursday seeking a judicial review of the British government’s move towards Brexit.  His lawyers claim it would be unlawful to trigger Article 50 ... without parliament voting on the move. They also contend it would undermine the UK’s domestic and international treaty obligations under the Good Friday Agreement, and inflict damage on the Northern Ireland peace process."

Similar action has been commenced in England and is set for a hearing in October - Law and Lawyers 19th July.

Northern Ireland is a separate legal jurisdiction to those in the remainder of the United Kingdom.  It has its own court structure comprising Court of Appeal; High Court and Crown Court and other courts.  The modern structure dates from the Judicature (Northern Ireland) Act 1978.   Appeal lies to the Supreme Court of the United Kingdom on points of law.  Northern Ireland also has its own legal profession - see Bar of Northern Ireland - Law Society Northern Ireland.

The United Kingdom Parliament is the ultimate law-making authority for Northern Ireland but, under devolution arrangements, there is a Northern Ireland Assembly  and a Northern Ireland Executive (established on a power-sharing basis) - see Constitutional Ramblings - The United Kingdom of Great Britain and Northern Ireland.   The present day Northern Irish institutions developed after the highly important Belfast Agreement of 10th April 1998 (the "Good Friday" agreement).

The Good Friday Agreement is a Treaty between the United Kingdom and the Republic of Ireland.  It has been instrumental in bringing about greater peace and prosperity for Northern Ireland than was enjoyed during many years of terrible internal conflict - ("The Troubles").

The European Union Referendum of 23rd June 2016 resulted in the people of Northern Ireland wishing to remain in the EU.  The Republic of Ireland is also in the EU.  It follows that the land border between Northern Ireland and the Republic could well become a major issue in the event that Northern Ireland were to be taken out of the EU.  It would be the first time that the UK has a land border with the EU.

Regular readers of this blog will know my view (for what it is worth) that the referendum outcome does not, in itself, amount to a "decision" to leave the EU - (Post of 27th June).  It is a view supported by a considerable number of eminent lawyers.  Whether it will be supported by the courts remains to be seen.  For the purposes of Article 50,  a decision must be taken in accordance with the UK's constitutional requirements.  The problem is to know what those requirements actually are!  Some argue that Ministers may issue the notice under Article 50 using royal prerogative powers relating to treaties.  Others argue that there isn't a decision unless Parliament says so.  Both sides are supported by highly respected legal opinion.

The Belfast Agreement and the Northern Ireland Act 1998 placed considerable emphasis on human rights within Northern Ireland.  This is entirely to be expected given the recent history of Northern Ireland, particularly since the 1960s.   The European Convention on Human Rights is the creation of the Council of Europe and not the EU.  The Good Friday agreement was particularly strong in terms of requiring equal opportunity in relation to religion; political opinion; gender; race; disability; age; marital status; dependants and sexual orientation.  Given this, there are rights derived from EU law which could assume considerable importance in Northern Ireland.  On this, see this view from the Northern Ireland Human Rights Commission.

It is true that, as a matter of law, the European Communities Act 1972 and the Human Rights Act 1998 remain fully under the control of the UK Parliament - see Northern Ireland Act 1998.  Nevertheless, altering either will have serious repercussions in Northern Ireland and this makes it politically imperative that the UK Parliament - (no doubt taking into account the view of the Northern Ireland Assembly) - makes any decision to leave the EU or to alter human rights arrangements.

The interesting question is whether the law requires this.  The legal actions in London and Belfast will hopefully answer that question.  We shall see!

Chair of the Child Abuse Inquiry

Professor Alexis Jay has been appointed to chair the Independent Inquiry into Child Abuse - see Inquiry Statement 11th August.

Professor Jay led the Independent Inquiry into Child Sexual Exploitation in Rotherham, an investigation into child sexual abuse in the Metropolitan Borough of Rotherham in South Yorkshire.  She is the author of the investigation's report, published in August 2014 - (Law and Lawyers 1st September 2014).

In September 2014 she was appointed to act as an expert adviser to an independent panel inquiry which was intended to examine how the UK's institutions have handled their duties to protect children from sexual abuse.   Following the abandonment of the initial panel inquiry in favour of a statutory inquiry under the Inquiries Act 2005, she was re-appointed as an adviser to the subsequent Independent Inquiry into Child Sexual Abuse chaired by Dame Lowell Goddard.

The Chair is assisted by a Panel of three members: Prof. Sir Malcolm Evans KCMG OBE; Ivor Frank; and Drusilla Sharpling CBE.  Professor Jay was a Panel Member assisting Dame Goddard.  It is not clear whether a fourth panel member will now be appointed.  Although Professor Jay is not a lawyer, the panel members have considerable legal credentials.

Law and Lawyers 5th August - Dame Lowell Goddard quits.

Immunity from criminal process of Special Missions

Special diplomatic missions (or just Special Missions) have existed since the beginnings of diplomatic relations between States and they continue to be used from time-to-time.

In R (Freedom and Justice Party and others) v Secretary of State for Foreign and Commonwealth Affairs and the DPP [2016] EWHC 2010 (Admin) the High Court (Administrative Court) was faced with this question of law:

"Whether members of special missions visiting the United Kingdom with the approval of the First Defendant ("the FCO") enjoy personal inviolability and/or immunity from criminal process pursuant to a rule of customary international law to which effect is given by the common law."

The court (Lloyd Jones LJ and Mr Justice Jay) held:


(1) Customary international law requires a receiving State to secure, for the duration of a special mission, personal inviolability and immunity from criminal jurisdiction for the members of the mission accepted as such by the receiving State.

(2) This rule of customary international law is given effect by the common law.

This interesting judgment is available via Bailii -here

Court of Appeal allows publication of redacted judgment relating to Child C

On 21st June, Ellie Butler's parents - Ben Butler and Jennie Gray - were sentenced at the Central Criminal Court - see the Sentencing Remarks of Mr Justice Wilkie.   Ben Butler was sentenced to life imprisonment for the murder of Ellie and the judge fixed his minimum term at 23 years (less days on remand).  He also received 5 years for Child Cruelty.  Those sentences are concurrent.  Jennie Gray was sentenced to 18 months imprisonment for Child Cruelty and 24 months for Perverting the Course of Justice.  Her sentences are consecutive.

A post of 23rd June 2016 looked at Ellie's case and the Serious Case Review which took place following her death.

In 2014, care proceedings took place in the High Court relating Ellie's younger sibling - referred to as C.  The Court of Appeal (Lord Dyson MR, McFarlane and Burnett LJJ) has now ruled that a redacted judgment in those proceedings may be published.  It is available via the Judiciary website.

For further discussion of this see UK Human Rights blog 9th August 2016 

Independent Child Abuse Inquiry - Dame Lowell Goddard quits

Updated 6th August:

In a terse letter to the Home Secretary (Amber Rudd MP), the Chair of the Independent Inquiry into Child Abuse has resigned.

The Home Secretary's statement, accepting the resignation, may be read here.

There have been murmurings about matters such as the time Lowell Goddard took away from the inquiry, her remuneration and even about her ability.  Whether this played a part is unclear.

The BBC 4th August published the correspondence and a statement from Lowell Goddard.



The Inquiry, set up by Theresa May when she was Home Secretary,  operates under the terms of the Inquiries Act 2005.  The Act came into being as part of the so-called "Wash Up" in 2005.   A former Canadian Supreme Court Judge - Peter de Carteret Cory - is on record as saying that he could not "contemplate any self-respecting Canadian judge accepting an appointment to an inquiry constituted under the new proposed act." Essentially, the Act gives Ministers considerable control over any inquiry - Law Society Gazette 27th March 2014 - The Inquiries Act 2005 - Fit for purpose?

There has been some controversy over the fact that the inquiry has chosen to investigate the late Lord Janner, the only investigation (so far) into a specific individual - Law and Lawyers 1st August.  In particular, the family of Lord Janner see it as an attempt to try him even though he is not able to respond to any of the allegations - The Times 31st July.

The Chair of the House of Commons Home Affairs Committee has written to Lowell Goddard and the Home Secretary - see here.   The Committee plans to take evidence from the Home Secretary on this matter during the September sitting and the Chair has also invited Dame Lowell Goddard to give evidence to the Committee in September.

Legal Aid Agency cancels a notable contract

Updated 15th August:

The Legal Aid Agency (LAA) has cancelled its legal aid contract with Public Interest Lawyers (PIL).  The LAA considers that PIL has breached contractual requirements and reached this opinion "after a thorough review of information provided by PIL, following the investigation by the Solicitors Regulation Authority (SRA) into the firm."  See the LAA's announcement.  

The Telegraph 2nd August 2016 - 'Ambulance chasing' law firm that hounded British troops over false claims of Iraq abuse banned from public funding

The Telegraph 3rd August 2016 - Top lawyer facing criminal inquiry where it is said that the Legal Aid Agency is to pass a dossier to the National Crime Agency.   The article also states that a National Crime Agency spokesman said: “We do not confirm or deny the existence of investigations or the receipt of specific intelligence. Where we receive intelligence we look at it and assess whether it is appropriate for us to take action or refer on to other agencies.”

Mr Phil Shiner - Head of Strategic Litigation at Public Interest Lawyers (International) - is facing disciplinary proceedings before the Solicitors Disciplinary Tribunal (SDT) and see The Telegraph 23rd June 2016 where it is reported that Mr Shiner was said to believe he is the subject of a “personal vendetta” by the Government.

Government Ministers have certainly expressed irritation about proceedings being brought in relation to Iraq and in January David Cameron wanted a "crackdown" on "spurious" legal claims - BBC News 22nd January and the earlier posts of 6th January, 24th January.

In January, Leigh Day, a firm of solicitors who had conducted Iraq-related claims - was referred by the Solicitors Regulation Authority to the SDT - SRA Statement 6th January

In April, the SRA issued this Statement which merely comments: "We have now decided to refer a second law firm to the Solicitors Disciplinary Tribunal."

An important part of the background is the Al Sweady Inquiry held under the chairmanship of Sir Thayne Forbes.  The Inquiry's Executive Summary document extends to 95 pages.  Paragraphs 735 to 741 state very concisely the Inquiry's conclusions.  

The Inquiry had to investigate allegations of the most serious nature including murder and torture [para 731].  The Inquiry concluded that the conduct of various individual soldiers and some of the procedures being followed by the British military in 2004 fell below the high standards normally to be expected of the British Army [735].  However, the vast majority of the allegations made, including all of the most serious allegations, were wholly and entirely without merit or justification and witnesses lied to the inquiry [737].  Sir Thayne commented at para 741:  "British soldiers responded to a deadly ambush with exemplary courage, resolution and professionalism."

Update 15th August:

Public Interest Lawyers is to close - Law Society Gazette 15th August.

Child Sexual Abuse Inquiry ~ allegations involving the late Lord Janner

As Home Secretary, Theresa May (now Prime  Minister), set up the Inquiry into Child Sexual Abuse with New Zealand Judge Lowell Goddard as its chair - Law and Lawyers 4th February 2015 - Independent Panel Inquiry into Child Sexual Abuse

The inquiry is being held under the Inquiries Act 2005. The Terms of Reference require the inquiry to consider the "extent to which State and non-State institutions have failed in their duty of care to protect children from sexual abuse and exploitation."  The terms go on to state  that - "It is not part of the Inquiry’s function to determine civil or criminal liability of named individuals or organisations. This should not, however, inhibit the Inquiry from reaching findings of fact relevant to its terms of reference."

13 cases have been selected for investigation at this stage and those include one against a named individual - the late Lord Janner of Braunstone QC.  That raises the issue as to just what facts may be determined about Janner without encroaching on to the forbidden territory of deciding liability.



Finding of facts:

The Inquiry website - Investigation into allegations of child sexual abuse involving Lord Janner of Braunstone QC states: "The Inquiry will examine the factual basis for the allegations against Lord Janner and will seek evidence and submissions from all relevant parties in order to make findings of fact where appropriate. The Inquiry may also consider the extent of any institutional failures to protect children from abuse. Institutions falling within the remit of the investigation will include Leicestershire County Council, a number of care homes, the police, the Crown Prosecution Service, the Labour Party, and the security and intelligence agencies, and others."

Janner's case was considered by the Inquiry on 26th July 2016 - Transcript of Preliminary Hearing.  The Janner family see the process as unfair and wrote to the inquiry about it.  At the preliminary hearing, counsel to the inquiry (Ben Emmerson QC) sought to address this.  His submissions commence at page 9 line 23 of the transcript.

On page 11 (Lines 1 to 5) Emmerson stated that the inquiry is not to be inhibited from discharging its fact-finding functions by the likelihood of civil or criminal liability being inferred from the facts that it determines.  He went on (page 12) to say that in this particular investigation, the description of the inquiry's scope requires the Chair and Panel to determine whether the allegations against Lord Janner are well-founded, the extent to which there may have been institutional failures to protect children from abuse, and the extent to which there may have been institutional failures to respond properly to reports, complaints or signs of abuse.

Emmerson continued to say that fact-finding has to be connected to an allegation of institutional failure and must be relevant to the determination of that allegation (page 12 lines 22-25).  The inquiry would only make findings of fact against Janner if - (1) the finding is relevant to the discharge of the inquiry's overall terms of reference; (2) the finding is "open and available" on the evidence and (3) it is fair in all the circumstances to make the finding and fairness required it to be taken into account that Janner could not respond to the allegations.

It will not be until the end of the process that a decision can be made as to whether a finding of fact is relevant, available and fair.  Further, there is no fixed standard of proof (page 13 line 25) though it is usual in inquiries for it to be stated to what degree the inquiry is satisfied that a particular event occurred (page 14).

Examination of witnesses is normally by counsel to the inquiry but affected parties could apply to ask questions directly and such a request should be granted if fairness requires it.

A restriction order?

Leicestershire Police applied to the inquiry for a "Restriction Order" under section 19 of the Inquiries Act 2005.   The Inquiry website simply states that this was refused.

The application is recorded in the transcript of the hearing of 26th July - see page 43 (time 12.21).  The Inquiry Chair appears to have been taken by surprise at this application and referred to having to decide a difficult application "on the hoof."  There are times when the Police have concerns about details of investigations being made public because it can alert people and lead to them trying to thwart the investigation.

The inquiry chair is receiving some criticism over her handling of this application.  I will leave it to the reader to assess that - I recommend a reading of the transcript from page 43 onwards.

Receipt and Handling of Documents and the Redaction of Documents:

See the Inquiry protocol on the Receipt and Handling of Documents

See the Inquiry protocol on the redaction of documents

Older post on Lord Janner:

Lord Janner's case was sent to the Crown Court for trial on 14th August 2015 but he died in December 2015 and so a criminal trial could not be held.

Inquiries generally:

Institute for Government  - The role of public inquiries