The Weekly Round-up: Scrapping the ‘sunset clause’, the Public Order Act 2023, and Trump found liable for sexual assault and defamation
15 May 2023
In the news
On Wednesday, it was announced a committee of MPs will examine the Metropolitan Police’s treatment of protesters at the Coronation of King Charles III on Saturday 6 May. A total of 64 people were arrested on the day of the coronation, 52 of which were made because police feared protesters intended to disrupt proceedings. The Met expressed “regret” over the arrest of six members of the anti-monarchy protest group, Republic, who were detained on suspicion they were equipped for locking on – a new offence introduced by the Public Order Act 2023 which only came into force on the 3 May. The Met’s heavy handedness has been widely criticised, but many commentators have focused attention on weaknesses in the legislation itself, calling it “too wide” and “too rushed”. There are fears police and public confusion over the scope of the Act will negatively affect protester’s rights in the future.
The Business and Trade Secretary, Kemi Badenoch, announced this week the government has tabled an amendment to the Retained EU Law (Revocation and Reform) Bill, which is currently making its way through the House of Lords. The amendment will replace the ‘sunset clause’; a provision which meant all retained EU law which had not been expressly preserved or replaced would be automatically repealed at the end of this year. Instead, the government has compiled a list of 600 pieces of secondary and EU legislation which will be actively revoked at the end of 2023. By replacing the sunsetting process, the government hopes to address commercial uncertainty and confusion around which of the 4,000 affected laws would last into 2024. While many have long-awaited changes to the sunset clause, some Conservative MPs have criticised Badenoch’s amendment as a ‘massive climbdown’ from the purpose of the Bill. Have a listen to the latest episode of Law Pod UK on the subject of “sunsetting”.
It was a busy week in the House of Lords, as members met for the second reading of the Illegal Migration Bill. Having passed through the House of Commons (with a majority of 289 votes to 230), the Bill is now being scrutinised by the Lords. Justin Welby, the Archbishop of Canterbury, spoke during the debate, calling the Bill “morally unacceptable and politically impractical”. The Archbishop said the Bill would not stop illegal migration and would damage both the UK’s reputation and the international systems which protect refugees. Despite his comments, a motion to stop the bill ultimately failed, with members only voting 76 in favour of the motion and 179 against. The Bill will progress, therefore, to the committee stage where members of the Lords will examine it in detail. Meanwhile, the Bibby Stockholm barge which will house approximately 500 single, male migrants arrived in Falmouth this week. PM Rishi Sunak, speaking in response to the Archbishop’s comments in the Lords, said the government was prepared to use as many barges as it takes to curtail “illegal” migration.
In other news
In New York, a civil jury found Donald Trump had sexually abused Elle Magazine columnist E. Jean Carroll in a department store in the 1990s. Mr Trump was cleared of allegations that he had raped Ms Carroll. The jury did, however, find the former President liable for defamation for calling Ms Carroll’s allegations a hoax and accusing her of concocting them to boost sales of her book. Mr Trump has been ordered to pay $5m in damages. The allegations against Mr Trump related to events which took place in 1995 and 1996. Ms Carroll was able to bring a civil case against Trump because of the Adult Survivors Act passed by the state of New York in 2022, which opened a one-year period for victims to bring historic sexual assault claims which would normally have exceeded statute limitations.
Lawyers in Scotland are preparing to boycott a pilot scheme which would see rape trials heard without a jury. The pilot scheme was introduced by the Victims, Witnesses, and Justice Reform (Scotland) Bill and gives Scottish Ministers the power to carry out a pilot of rape trials without a jury, before a single judge or sheriff. First Minister Humza Yousaf has defended the plan, saying there is evidence juries are affected by rape myths and misconceptions. It is hoped the scheme will improve the conviction rates for rape-related crimes. Bar associations across Scotland have, however, widely condemned the idea of juryless rape trials. The Vice-President for the Scottish Solicitors Bar Association expressed concern that removing juries would remove diversity from the Scottish national justice system, and leave it open to the biases of single judges. While the boycotts are expected to be widespread, the Scottish government has said the pilots will go ahead.
On Friday, Portugal passed a law legalising euthanasia for people suffering from incurable diseases. Under the new legislation, people who are terminally ill and in “intolerable suffering” will be able to seek medical assistance to end their lives. The legalisation has divided public opinion in Portugal for some time. The euthanasia bill has been approved four times by the Portugese Parliament in the last three years, but was blocked each time by the conservative President, Marcelo Rebelo de Sousa. This most recent vote overturned the vetoes exercised by de Sousa, who will be required to sign the bill into law within eight days of receiving it.
In the courts
The hearing for the Duke of Sussex’s lawsuit against the Mirror Group Newspapers (MGN) began in the High Court this week. The case centres on whether MGN journalists used unlawful methods (such as phone hacking) to obtain private information about the Duke of Sussex between 1996 and 2011. The claim forms part of a wider group litigation, with other claimants including former Girls Aloud band member Cheryl, presenter Ian Wright and Coronation Street actor Michael Le Vell. So far, Counsel for the Mirror Group has argued there is no concrete evidence of phone hacking and says the claims have been brought too late. Opposing Counsel, meanwhile, has contended unlawful methods were systematic and widespread amongst MGN journalists and were ultimately authorised by senior executives. The trial is expected to last seven weeks and the Duke of Sussex will give evidence in June. This will be the first time a senior member of the royal family has done so since the 19th century.
In Hicks, R (On the Application Of) v Westminster Magistrates’ Court  EWHC 1090, a claim for judicial review was refused. The Court considered whether the judge had made an error in law by convicting the Claimant of contravening reg. 7 of the Health Protection (Coronavirus Restrictions) (England) Regulations 2020, which prohibited public gatherings during the pandemic. Firstly, following R (Dolan) v Secretary of State for Health and Social Care  EWCA Civ 1605, the Court found Regulations prohibiting public gatherings were proportionate. Secondly, regarding whether Ms Hicks had a “lawful excuse” for breaching the regulations, the judge’s assessment of the proportionality of the conviction in relation to her conduct had been correct. Finally, the Court refused to address an issue relating to the Claimant’s fine because it did not raise any point of law or jurisdiction and should have been raised through other procedures.