Weekly Notes: legal news from ICLR, 1 June 2020

We return after the short Whitsun break for the Trinity Law Term, with a roundup of what’s been happening in the world of law and to some extent, unavoidably, politics.

Welcome back?

Summer is icumen in, as the old song goes; and with a relaxation, wise or otherwise, of the coronavirus lockdown, we humans are out and about in larger, closer groups than in bygone months. We certainly aren’t staying at home; but are we staying alert?

Judging by the way the R-number (the rate of viral replication) has increased, or remains high in certain areas, probably not. But the statistics published by the Financial Times do show that the seven day rolling average of new deaths from Covid-19 has begun to fall. Not perhaps as sharply as we would wish, though. Schools are reopening, but with fewer pupils, partly for safety, partly from parental unwillingness to risk the exposure.

More real life courts are expected to be sitting this term, albeit with distancing arrangements in place, according to the latest weekly operational summary from HMCTS, who have also published their Organisational risk assessment policy document, and Additional safety guidance for regular court users.

However, there is some concern over how safe these arrangements really are, and the need to attend court to find out if it’s safe to attend court has been appropriately described as a “Catch-22”, in a critical post by the family court reporting watch team on the Transparency Project blog.

See also: Law Society Gazette, Barristers demand cleaner magistrates’ courts and Hotels and sports halls being considered as makeshift courts

Coronavirus Regulations

A legal challenge to the main Coronavirus Regulations has been launched by a businessman, Simon Dolan, on the grounds that:

  1. The Health Protection (Coronavirus) (England) Regulations 2020 (as amended) are ultra vires section 45C of the Public Health (Control of Diseases) Act 1984, under which they purport to have been made; and
  2. The restrictions imposed in the regulations constitute a disproportionate breach of fundamental rights and freedoms in the European Convention on Human Rights and are unlawful under the Human Rights Act 1998.

An explanation of the claim and discussion of the legal issues appears on the UK Human Rights Blog: Legal Challenge to Lockdown. You can also read the Letter before Action drafted by solicitors Wedlake Bell. Further commentary is available from Obiter J on the Law and Lawyers blog, and from Joshua Rozenberg, via Transforming Society.

The government has indicated it intends to oppose the claim. If it did not, or if the court were to find that the regulations were unlawfully made, what would happen to all the cases where people had been convicted or paid fines for infringing them?

A Labour MP, Rosie Duffield, was the latest public figure to apologise for a failure to obey the regulations and resign her post (as an opposition party whip), as have a number of other prominent public officials — but not the Prime Minister’s chief adviser Dominic Cummings. His failure to do so has made some people jolly angry, and others even more disappointed in the government of Boris Johnson and its tackling of the coronavirus crisis generally. Johnson himself seems to have frittered away — we refrain from using the vulgar expression he himself has popularised — all the goodwill he accrued by becoming hospitalised with Covid-19 himself, and his approval rating has sunk while that of the new leader of the opposition, Sir Keir Starmer QC, has risen.

Police chiefs have complained that the government’s laxity over Cummings’s breach of the spirit, if not the letter, of the regulations has made it harder to enforce against the public. According to The Guardian:

“The West Midlands PCC, David Jamieson, revealed he had received intelligence that officers are getting ‘pushback’ from members of the public breaching Covid-19 containment measures after Downing Street’s defence of Cummings’ 264-mile lockdown trip.

It comes as a leading human rights lawyer told the Guardian people fined for breaching lockdown rules may try to complain about penalties or protest about paying them by referencing Cummings’ excuses, which include the claim that he drove to a beauty spot in order to test his eyesight.”

See also:

Such enforcement as there has been, prior to the relaxation, turns out to have been inconsistent, both geographically and — more concerningly — by reference to the type of people involved. A report by Liberty draws attention to the fact that BAME people [were] disproportionately targeted by Coronovirus fines:

“Between 27 March and 11 May, English police forces handed out 13,445 of the fines, also known as Fixed Penalty Notices. Exclusive data analysis by Liberty Investigates and the Guardian has found out that people of colour were 54% more likely to be fined than white people, with around 2,218 fines being meted out to BAME people and 7,865 to white people. The finding comes amid greater confusion around the changes to lockdown rules and new police powers to fine first-time offenders £100 and up to £3,200 for repeat offences.”

But it also notes geographical variations in the intensity of enforcement:

“One notable thing about the fines is how many have been issued by smaller police forces, which operate in more rural areas. Between 27 March and 11 May, North Yorkshire police issued 843 fines, the third-highest number across England and Wales. By comparison, London’s Metropolitan Police, which has 21 times as many officers as North Yorkshire, issued 906 fines.”

International Human Rights

The National People’s Congress of the People’s Republic of China has voted to impose on Hong Kong a new anti-sedition law effectively banning any public criticism of the government, Hong Kong’s Legislative Council having failed to do so. Article 23 of the Basic Law, Hong Kong’s ‘mini-constitution’ of 1997, provided that the Legislative Council

“shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.”

However, till now, no such enactment has been made. Beijing’s impatience has been exacerbated by the recent history of protests in Hong Kong. But the way those protests have been dealt with has only increased the anxiety of the residents as to the likely effect of the new law. According to the Guardian:

“The legislation, aimed at stamping out protests that have racked the city for the past year, would ban ‘any acts or activities’ that endanger China’s national security, including separatism, subversion and terrorism — charges often used in mainland China to silence dissidents and other political opponents.

The legislation would also allow ‘national security agencies’ — potentially Chinese security forces — to operate in the city.”

The UK’s response has been twofold. First, the Foreign Secretary Dominic Raab announced that present and future holders of British National (Overseas) passports in Hong Kong would be entitled to apply for leave to stay in the UK for an extendable period of 12 months. A media factsheet published by the Home Office on 29 May 2020 states:

“In respect of our historic and enduring relationship with Hong Kong and responsibilities towards British Nationals (Overseas), the UK Government today announced that if China follows through with its new national security law, the UK government will explore options to allow BN(O)s to apply for leave to stay in the UK, if eligible, for an extendable period of 12 months.”

See also, The Guardian: New UK legal advice could open door to Hong Kong citizens

Secondly, and in consequence of the threat of economic sanctions by the United States, it has been reported that the Prime Minister may withdraw the approval, given earlier this year, for participation by Chinese telecoms manufacturer Huawei in the development of Britain’s 5G mobile telecoms network, or at any rate scale back as soon as possible Huawei’s involvement in the project. (See The Guardian, Boris Johnson forced to reduce Huawei’s role in UK’s 5G networks.) There was widespread opposition at the time on data security grounds, but the problem for Johnson was the lack of realistic alternative, eg from American or European companies. However, if the US impose sanctions, it may simply be impossible or very difficult to source the components necessary.

The international response has included the issuing of a statement by a cross-party international coalition of 771 parliamentarians and policymakers from 38 countries, decrying a “flagrant breach of the Sino-British Joint Declaration”. According to Hong Kong Watch, the response was led by former governor Lord Patten, who was quoted as saying:

“The statement shows growing and widespread international outrage at the decision by the Chinese government to unilaterally impose national security legislation in Hong Kong. The breadth of support, which spans all political parties and four continents, reflects both the severity of the situation and ongoing unified international support for the principle of one-country, two-systems.”

America is currently in the grip of sometimes violent protest in many states, following the recent death in the course of arrest of a black man, George Floyd, in Minnesota. The National Guard have been drafted in to help the police in some cases, whose response has been as violent as we have come to expect (though some police officers have joined marchers in calling for change).

In a new report, Arresting Dissent: Legislative Restrictions on the Right to Protest, PEN America shines a spotlight on the proliferation of state-level legislative proposals seeking to limit protest rights. PEN America says it

“has documented an explosion of 116 state bills introduced since 2015–110 of which were introduced between 2017 and 2019 alone — that create new penalties or harsher sentences for protesters.”

Human Rights Watch reported that Costa Rica has become the first country in Central America to legalise same-sex marriage.

“Costa Rica joins 28 other countries around the world in providing access to marriage for same-sex couples, and advances marriage equality in Latin America, joining Argentina, Brazil, Colombia, Ecuador, and Uruguay. In Mexico, 18 states and the federal district have marriage equality, while in the other 13 states, same-sex couples can marry but need a court injunction.”

Less good news from Hungary, which CNN reports has “banned people from legally changing gender, in a move rights groups said could lead to further intolerance and discrimination against the LGBTQ community in the country.”

Amnesty International’s Researcher, Krisztina Tamás-Sáróy said in a statement:

“This decision pushes Hungary back towards the dark ages and tramples the rights of transgender and intersex people. It will not only expose them to further discrimination but will also deepen an already intolerant and hostile environment faced by the LGBTI community.”

Recent commentary

Assessing the economic implications of coronavirus and Brexit, a report by the Social Market Foundation, commissioned by Best for Britain, says that

“If the UK leaves the EU without a deal in place on 31st December 2020, the manufacturing, banking, finance and insurance sectors would be severely exposed to a double economic hit from Brexit and coronavirus.”

In particular,

“While London and the South of England would be highly exposed to the double economic hit caused by Brexit and coronavirus under [Free Trade Agreement], leaving the EU without a deal in place would create pockets of severe disruption across the country, and particularly in the North West and Midlands regions.”

Equal Pay Act: Why Are Women And Minorities Still Paid Unfairly 50 Years On? The human rights charity Each Other states that

“a new report published by the Equality Trust on 29 May 2020 reveals that there is still a “shocking level of complacency” among some of the world’s biggest companies over discrimination within their pay systems. The findings focus on gender pay disparity but also acknowledge that pay gaps affect people from minority ethnic backgrounds and people with disabilities.”

Huffington Post reports that the Leader of the Opposition, Sir Keir Starmer, has endorsed the recommendation of the Fawcett Society that Women Should Have ‘Right To Know’ Male Colleagues’ Pay

Journalists win High Court challenge to name council criticised by judge in child welfare case, reported the Press Gazette. The story related to the successful application by freelance journalist Louise Tickle and Press Association courts reporter Brian Farmer to overturn the decision by Mr Justice Hayden to preserve the anonymity of a local authority (Haringey London Borough Council) in a child care case in which its conduct had been severely criticised.

Tickle reports the whole matter on her own blog at The Open Court, Freedom of expression doesn’t just arrive on a bleedin’ plate

It is also covered on the Transparency Project, Journalists persuade Judge to change his mind and name criticised local authority

Labour Exploitation in Immigration Detention , via the UK Labour Law blog. Virginia Mantouvalou discusses the low paid work done by detainees as part of a broader structure, including restrictive visas and other vulnerabilities, that are created by law and trap migrants in exploitation.

10 of the most absurd things ever to happen to immigration lawyers, via Free Movement. Alex Piletska recalls the ten most ludicrous examples of the “sheer surrealism of an immigration lawyer’s job”.

C-19 damage: does international law hold any answers?, via the UK Human Rights Blog. Rosalind English asks whether international law is capable of dealing with the situation highlighted in a recent report,

“documenting a series of steps by the Chinese Communist party to conceal from the World Health Organisation and the rest of the world the outbreak and human-to-human transmission of coronavirus. If we want a rules-based international order to mean anything, the authors of the report point out, it must be upheld.”

“The report,” she concludes, “emphasises that it is vital for the future of the rules-based international system that China is not able to escape the consequences of its actions in response to this pandemic.”

The Remote Family Access Family Court — what have we learnt so far: Speech by The Hon Mr Justice MacDonald via the International Academy of Family Lawyers Webinar, 21 May 2020.

Remote court hearings: research and requirements, in which Roger Smith discusses a report by the Public Law Project* (PLP) on a small empirical study of judicial review in the Administrative Court. The authors have published their own blog post, Joe Tomlinson, Jo Hynes, Jack Maxwell, and Emma Marshall: Judicial Review during the COVID-19 Pandemic (Part I)

Recent listening

Described as “The extraordinary story of a decade-long battle with the Post Office, fought by their own sub-postmasters. Some call it the widest miscarriage of justice in UK legal history.”

Nick Wallis, whose website has followed this astonishing tale of wrongful accusations and convictions obtained by the Post Office against sub-postmasters on the basis of a flawed IT system, presents the story in a series of radio programmes, available as download.

The case has also been extensively reported in Private Eye, where a special report, Justice Lost In The Post by Richard Brooks and Nick Wallis, appears in Issue No 1519 (3–23 April 2020).

Dates and Deadlines

This week the Canadian Association of Law Libraries continues its virtual conference series begun on 25 May. This week’s highlights include Sarah Miller and Dean Seeman on Decolonizing Through (Re)classification, and Alisa Lazear and Deb Quentel on A New Model for Legal Publishing: Empowering Legal Professionals through Shared Content Creation.

Conference runs till 12 June. You can still register here.

Registration is now open for the two BIALL (virtual) conference events on Thursday 11 and Friday 12 June. Each day runs from 12.00–13.30 on Zoom and features speakers who would have appeared in real life had the conference been held in Harrogate as planned. The presentations represent a taster of their planned sessions and will allow some questions.

Each of the two days has its own registration page and programme, Day One sponsored by LexisNexis and Day Two by vLex Justis. Once registered, for either or both, you can either submit questions for speakers in advance or on the day via the Zoom chat.

Sadly there is no virtual Harrogate tea room or wine bar!

ICLR news

We’ve made some changes to our online case law platform ICLR.3 to enable users to navigate more effectively to different parts of a full text law report, including the ability to “jump to” a particular paragraph. You can also jump straight to a particular page, which is more useful for legacy print era cases going back to 1865 which didn’t use paragraph numbering, and to individual headings within judgments and other anchored elements within the report, such as the headnote or counsel’s argument (where included). For instructions on how to do this, see our recent blog post, Features update: ‘Jump to’ paragraph or page and ToC navigation on ICLR.3

And finally…

returns to the subject on everyone’s lips over the long weekend of Cummings (not) goings:

That’s it for this week. Thanks for reading, and thanks for the tweets and blogs and links to content from which this post was derived. And stay safe!

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.