Weekly Notes: legal news from ICLR, 1 March 2021

Photo by Ming Jun Tan on Unsplash

Coronavirus

Legislation

The Coronavirus Act 2020 is up for its second six-monthly review and renewal vote in the House of Commons in the coming weeks. Some of the powers it has conferred, the way they have been enforced, the changes to life, work and education, and their effect on different parts of the population have been heavily criticised.

The civil liberties campaign group Liberty has come up with a proposed replacement, the Protect Everyone Bill, which they say:

removes the dangerous powers in the Government’s Coronavirus Act and replaces them with clear and proportionate measures focused on public health, human rights and protection for everyone equally instead of criminal justice.

In drafting their Bill, Liberty says it has teamed up with expert charities, NGOs and lawyers to present a positive alternative: a better way to achieve the government’s stated ambition to “build back better”.

You can read the The Protect Everyone Bill on their website.

Rules

One aspect of the regime imposed by the Act has been the succession of ever-changing Coronavirus Regulations, with barely time to register the changes in lockdown restrictions, let alone for parliamentary debate and approval, before another lot comes in, usually enacted just hours before coming into force. This has in turn led to difficulties of enforcement, as we’ve reported before, with police confusing guidance and regulations and attempting to enforce the former with powers granted only in respect of the latter.

The Guardian reported recently that there had been a surge in Coronavirus Regulations enforcement fixed penalty notices in the last month, as lockdown fatigue sets in, and the police adopted a more hardline approach than before: see Covid fines surge in England and Wales as police adopt hardline approach.

Roadmap

With the vaccination rollout proving a success and both infections and hospitalisations falling, the Prime Minister Boris Johnson last week announced the details of his previously leaked Roadmap to cautiously ease lockdown restrictions. The road of which this hopeful journey was the map seemed to be marked by a number of milestones, such as the reopening of schools, pubs, restaurants, nail parlours, and so on, until the 21 June when, in a mass national Midsummer’s Night Dream, the entire population will rejoice with faery lights and asinine antics, and Pyramus and Thisbe will play to packed houses from end of pier to festival cheer. Or something.

Immigration

Begum barred

In a decision which appears to have confounded the expectations of both “activist” human rights lawyers, on the one hand, and those who complain about judicial activism on the other, the UK Supreme Court reversed the decision of the Court of Appeal (in R (Begum) v Secretary of State for the Home Department [2020] EWCA Civ 918; [2020] 1 WLR 4267) that the applicant Shamima Begum should be granted leave to enter the UK so that she could pursue her appeal against a decision by the Home Secretary to deprive her of her British citizenship. (We reported on that decision in Weekly Notes, 27 July 2020.)

The applicant also had Bangladeshi citizenship, so was not left stateless when deprived of her British citizenship after being found in a detention camp in Syria where she had gone some years before, aged 15, in order to join rebel ISIS fighters. She wished to return to the UK in order to pursue her appeal. But the Supreme Court [2021] UKSC 7 decided that her right to a fair trial did not trump the national security concerns which the Home Secretary at the time, Sajid Javid, relied on to justify depriving Begum of her citizenship, and that the Special Immigration Appeals Commission had correctly found the deprivation decision not to have been in breach of the government’s human rights policy.

Not surprisingly, there has been quite a lot of commentary on the case, including:

Police

Disproportionate use of powers

Her Majesty’s Inspectorate of Constabulary last week released a report entitled Disproportionate use of police powers, subtitled “A spotlight on stop and search and the use of force”. The report notes that stop and search is predominantly used to search for drugs, but points out that:

Drug enforcement, mainly through stop and search, contributes to ethnic disproportionality despite evidence that there is no correlation between ethnicity and rates of drug use. The likely damage to police community relations caused by large numbers of drugs possession searches, especially those that find nothing, may outweigh the benefits derived from such searches.

It acknowledges that “members of the public may see the disproportionate use of powers as a sign of discrimination, and so police legitimacy may be undermined”.

The report also deals to some extent with searches focused on knife or weapon carrying, and the use of section 60 of the Criminal Justice and Public Order Act 1994 which allows a senior officer to authorise the use of stop and search in a given geographical area for a specified time period if serious violence may occur or has done so, and/or that people are carrying offensive weapons. Again, while the use of the power has declined, the repor says, disproportionality has increased.

Remote access to police station advice

Not remotely fair? Access to a lawyer in the police station during COVID-19, a joint report written by Transform Justice, the National Appropriate Adult Network and Fair Trials, aims to provide an insight into the effect of remote legal advice provided to those held in police stations, particularly on children and mentally vulnerable people, following the implementation of the Covid-19 protocol agreed between prosecutors, police and defence solicitors to mitigate health risks. The protocol discouraged unnecessary interviews in detention and, contrary to established laws and procedures, supported the temporary remote delivery of legal representation in interview.

The report noted a number of issues, including a failure to seek consent from suspects and their Appropriate Adults or suspects and their AAs feeling pressured to consent; a tendency for solicitors acting remotely to be more passive in how they intervened or advised; and the fact that remoteness of access often impeded people’s ability to understand what was happening and the legal advice they were given.

Ecclesiastical law

A grave misjudgment

One of the few ecclesiastical (church law) cases to win more general coverage in recent months has been the decision of the Consistory Court in In re St Giles, Exhall; ex p Newey [2020] ECC Cov 1 (Const Ct), whereby the chancellor, Stephen Eyre QC, refused to grant the applicant, Mrs Caroline Newey, a faculty (permission) for a memorial on her mother’s grave with the inscription in Irish Gaelic, In ár gcroíthe go deo: “in our hearts forever”. The chancellor said the proposed inscription was “a message which will be unintelligible to all but a small minority of readers [in Coventry]. In those circumstances, it is not appropriate for it to stand alone without translation.” He added, more ominously,

“Not only would the message of the inscription not be understood but there is a risk of it being misunderstood. Given the passions and feelings connected with the use of Irish Gaelic, there is a sad risk that the phrase would be regarded as some form of slogan or that its inclusion without translation would of itself be seen as a political statement.”

As you’ll see from our citator index of the case, there was a further hearing last August before the (appellate) Arches Court, when Dean Morag Ellis QC granted permission for an appeal. That appeal was heard last week, and live tweeted by CJ McKinney

The day ended with good news: the Arches Court allowed the appeal, for reasons to be given later. When those reasons have been published, the Law & Religion UK blog will provide a further case comment, to follow the ones already published: see Frank Cranmer, Irish Gaelic on memorials? Re St Giles, Exhall: a further update

See also:

Family Law

Public Law Working Group report

The President of the Family Division, Sir Andrew McFarlane has welcomed and endorsed the publication of the President’s Public Law Working Group (PLWG) report. He explained that

“The PLWG was formed, prior to the COVID-19 pandemic, to investigate the steep rise in public law cases coming to the Family Court and to offer recommendations for improving the system’s ability to address the needs of the children and families at the centre of these important cases. The additional pressures on the Child Protection and Family Justice systems arising from COVID have only gone to underline the need for the new ways of working that the PLWG’s recommendations describe.”

The report’s recommendations were, he said, “both sound and necessary”. There are 47 core recommendations and 15 proposals for longer term change. They deal with matters including

  • Support for and work with families prior to court proceedings
  • Application process
  • Case management
  • Supervision orders
  • S 20 / s 76 accommodation

Read the full report (pdf).

Other recent publications

Some recent developments in weddings law

Post by Frank Cranmer on the Law & Religion UK blog about the Registration of Marriages Regulations 2021 and other marital matters, including the current bar on weddings conducted in Cornish.

A superb new book on English sentencing law and practice

Review, on the Sentencing, Crime and Justice blog, of Dr Lyndon Harris and Sebastian Walker’s “magnificent” book, Sentencing Principles, Procedure and Practice 2021 (London: Sweet and Maxwell, 2020)

Kids Law

Superb new podcast series, about children and the laws that affect them as they grow up. With the help of Lucinda Acland, a lawyer, and supported by Next 100 Years, they set out to ask some questions of leading experts to help children make sense of it all. Featuring Lord Neuberger, Adam Wagner, Lady Hale and Max Hill QC among other legal luminaries.

Lawyers smoke cigars, drink wine during Zoom hearings; litigants appear from hair salon or while driving

Article in the American Bar Association journal on some of the shocking ways in which lawyers and litigants appear “in court” during remote hearings. It makes adopting a cat filter seem quaintly respectable by comparison. As the judge made famous by the “cat filter” case points out:

Dates and Deadlines

Bell v Tavistock: The Medico-Legal Consequences

CHLS and the HRIC (Online) — Wed, 3 March 2021, 13:15–14:45 GMT

Online seminar, hosted by Bristol University Law School in partnership with the Centre for Health Law and Society and the Human Rights Implementation Centre, to address the medico-legal consequences of the recent decision of the High Court in R (Bell) v Tavistock and Portman NHS Foundation Trust [2020] EWHC 3274 (Admin); [2020] WLR(D) 655. The seminar will take place via Zoom with contributions from

  • Dr Ruth Fletcher (Queen Mary University of London)
  • Prof. Simona Giordano (University of Manchester)
  • Bianca Jackson (Coram Chambers)
  • Robin White (Old Square Chambers)
  • Dr Jay Stewart (Gendered Intelligence)

Please register for the event using this registration page.

Whiplash rules — the good, the bad and the confusing

Online — 12 March 2021, 12:00–13:00 gmt

This live webinar hosted by Legal Futures will discuss the detail of the newly published whiplash rules — the ‘must knows’, the surprises and the trip wires — from both a claimant and a defendant perspective and will identify the key pinch points as both sides prepare for the new world of Personal Injury (PI) litigation.

Tickets are on sale now for just £35 per attendee. You can either attend live or order a recording of the webinar. (Delegates who attend the live webinar will also receive a link to the recording after the event.)

Online Book Talk: Catullus: Shibari Carmina By Isobel Williams

Royal Overseas League (online) — 16 March 2021, 14:00 — 15:00 gmt.

Isobel Williams may be best known to readers of this blog for her blogging and drawings of hearings in the UK Supreme Court, her Guide for Bears to that court, and her illustrations for Proof magazine and law book covers. However, she has also now produced a brilliant and captivating translation into modern idiom of the poems of Catullus, published by Carcanet Press.

There is also a launch via Zoom webinar, on 11 March, of the latest Carcanet anthology, New Poetries VIII, including some of Isobel Williams’s translations of Catullus, and a launch of the Catullus book itself, also via Zoom, on 24 March. Further details next week.

Assistant Parliamentary Counsel

Apply before 11:55 pm on Sunday 28th March 2021

The Office of the Parliamentary Counsel is a team within the civil service of some 50 lawyers and 10 support staff, reporting to the Cabinet Office. They draft Government Bills and amendments and handle related Parliamentary business. This would be a fascinating (if occasionally frustrating) job.

Four posts to be filled on a full time, part time, flexible time and job share basis, at a not to be sniffed at salary of £67,700 (presumably that’s for full time). Apply here.

ICLR news

Pupillage award now open

The ICLR Pupillage Award is now open for applications. If you are taking up pupillage in Autumn 2021, paid a total for the pupillage year of no more than £30,000 (including guaranteed earnings), you could receive our top-up award of a further £13,000.

For application form and more details, see our dedicated Pupillage Award page.

And finally…

Tweet of the week

It’s high time we stopped horsing around with our headgear so this barrister’s wig made of hemp is not only far from ropey but seems an eminently fitting alternative.

Samuel March is a pupil barrister at @5PaperBuildings, and volunteer paralegal at @AnimalLawyersUK. The wig is a prototype developed with the help of Cultiva Kingdom, who specialise in making things from hemp.

That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Take care now.

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.

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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.

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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.

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