Weekly Notes: legal news from ICLR, 12 October 2020

This week’s roundup of legal news and commentary includes the new hostile environment for asylum seekers (and their activist lawyers); a belated undertaking to capture court user data, and a stairway to final appellate court heaven (denied), plus some recent publications of interest.

Immigration

At the end of last month the government published its Response to the Windrush Lessons Learned Review: A Comprehensive Improvement Plan (CP 293). This Command Paper was presented to Parliament by the Secretary of State for the Home Department, Priti Patel, who wrote in the introduction of how the Windrush Scandal had “exposed institutional failings at the heart of the Home Office” in dealing with the issue of race and the history of the Windrush generation. “My ambition is to build a fairer, more compassionate, Home Office”, says Patel.

The report by senior police inspector Wendy Williams, published in March 2020, contained 30 recommendations calling for root and branch reform at the Home Office. In June his year Patel said in an Oral Statement to the House of Commons that she would accept the report’s recommendations in full and that a compensation scheme had been set up for victims. (For some this will have come too late, having already been deported or, worse still, died.)

In her Improvement Plan Patel now says “I am working at pace to transform the culture within the department that allowed it to happen.” However, there will be cynics who find this hard to accept when the newspapers are full of reports about Home Office plans to deal with or deter asylum seekers who have been attempting to cross the English Channel. The latest plan, reported in the Guardian, appears to be to “use nets to stop migrant boats crossing Channel”. Earlier plans included blocking the path of migrant vessels with a barrage of small ships or floating barriers; sending those picked up in the channel to an offshore processing camp in various far-flung locations, including Papua New Guinea, Morocco, Moldova or Ascension Island (in the South Atlantic); or transferring them to retired ferries or oil rigs for processing. Is this what is meant by “transforming the culture” of the Home Office?

Over the summer, it tweeted a video complaining about “activist lawyers” hindering efforts to return illegal migrants, and in a more recent tweet it conflated the way such returns were being “frustrated by legal claims” with the completely separate process of returning foreign national offenders (who are otherwise legally in the country): the implication being that the system is broken and lawyers are part of the problem. In addition, Patel herself has been adopting the rhetoric of populism to demonise asylum seekers and the lawyers who assist them. In her recent Conservative party conference speech she told her virtual audience:

“No doubt those who are well-rehearsed in how to play and profit from the broken system will lecture us on their grand theories about human rights. Those defending the broken system — the traffickers, the do-gooders, the lefty lawyers, the Labour party — they are defending the indefensible.”

So when one reads, in the Improvement Plan, Patel’s words “Today, the Home Office is already a very different place” you have to wonder, in what way different? Where exactly it is going with its “improvement”?

But Patel was not alone in badmouthing the legal profession in her conference speech: the Prime Minister Boris Johnson also had a go, blaming ‘lefty human rights lawyers’ for the woes of the criminal justice system. This prompted a furious response from lawyers’ groups, including the Bar Council, whose chair Amanda Pinto QC wrote a letter to the Prime Minister to

“deplore your remarks at the Conservative Party Conference which wrongly seek to politicise and attack lawyers for simply doing their job in the public interest. Far from the criminal justice system being ‘hamstrung’ by lawyers, the backlog of cases, extreme delays, crumbling court estate and shockingly underpaid practitioners are a direct result of chronic underfunding by successive Governments.”

See also: Law Society Gazette: Home Office accuses ‘activist lawyers’ of abusing immigration rules and Johnson opens new front in war on ‘lefty lawyers’

Courts

HM Courts and Tribunals Service has now responded to the recommendations made by Dr Natalie Byrom last October in her Legal Education Foundation report, Digital Justice: HMCTS data strategy and delivering access to justice Report and recommendations.

In its response, entitled Making the most of HMCTS data, it says it “welcomes Dr Byrom’s recommendations on data collection to support the evaluation of Reform and on developing our approach to open and shared data”. But while it has begun to implement the recommendations (most of which it accepts), it says “there are some areas which will need to be considered by the Senior Data Governance Panel (SDGP) (see below) prior to implementation” and that its timeframe for implementation “will in part depend on the impact of the COVID-19 pandemic, which has disrupted projects across government”.

That last point is hardly surprising, and in fairness to HMCTS, much as everyone (sometimes justifiably) complains about the court service, it has had to devote a lot of its staff’s time and energies to managing remote hearings and developing safe physical courts to enable trials that can’t be conducted online to go ahead. (See, more generally, last week’s update: Weekly Notes, 5 October 2020.) Even so, it is disappointing that it should have taken them a year to respond to the recommendations. The problem is that HMCTS has been working on a complete digitisation of the court system since 2016, and should have been building research data collection into the system from the very beginning, rather than adding it in later, as it might appear, as an afterthought.

In a statement on HMCTS’ response to its ‘Digital Justice’ Report, the LEF’s chief executive, Matthew Smerdon said:

“If the window of opportunity was vanishing a year ago when we first published the ‘Digital Justice’ report, it is now at risk of disappearing completely. Over the last 12 months, HMCTS has made disappointingly slow progress at moving forward on any of the major recommendations made by Dr Byrom. In our view, COVID-19 cannot be an excuse. Rather, the impact of the pandemic on the court service has shone a spot-light on why it is more important than ever to improve the quality of data collection to enable the digital transformation of the court service.”

Byrom herself welcomed the HMCTS response in slightly more diplomatic language, saying:

“Today is a pivotal moment for the government to fully embrace — and fully fund — a data strategy that will deliver digital justice for all. Over a year on from delivering my report to HMCTS, I welcome its acceptance of my recommendations. I urge the government to now put words into action. There is no better moment than now to step up the implementation of those recommendations. Otherwise, we will waste the opportunity to make the UK a world leader in delivering digital justice for all.”

Explaining the importance of the proposed data research on the response on A Lawyer Writes, Joshua Rozenberg said

“How can taxpayers tell whether the £1bn allocated to the world’s most ambitious court reform programme is money well spent?

The answer, of course, is to start with the statistics. How many cases are completed each month? How long do they now take? How many users are satisfied with the service they receive? How accessible are the courts to vulnerable users?

But HMCTS don’t have these statistics — or, at least, not enough to answer all the questions that are being asked. Without them, it cannot deliver justice for all.”

The paucity of data, particularly in relation to the characteristics of court users, was the subject of quite a few of the comments made by witnesses, including online courts guru Prof Richard Susskind, Prof Hazel Genn of UCL Law Faculty and Simon Davis, President of the Law Society, as well as Byrom herself, in the House of Lords Constitution Committee’s current inquiry into the Constitutional implications of COVID-19 (see our summary of that evidence in Has the revolution happened? Can we ever go back? under part 9: More research needed!)

There is one positive thing in particular we would like to highlight from the HMCTS response, at para 6:

“Working closely with the judiciary and MoJ, we have also begun work to establish a coherent approach for publication of judgments and case outcomes while ensuring appropriate protection for personal data. Over the next 12 months, we aim to develop an agreed approach to publication in order to further support transparency and Open Justice.”

Intellectual Property

Nothing like rock music copyright claims to put the pun into punk, the fun into funk, the — well you get the idea. This story has run and run, and now it’s got nowhere to hide. The US Supreme Court has denied the plaintiff’s petition for leave to appeal from the decision in March this year of the US 9th Circuit Court of Appeals in Skidmore v Led Zeppelin & ors, 952 F.3d 1051 (2020), affirming the decision in June 2016 of the US District Court for the Central District of California after a jury trial in a copyright action alleging that the opening notes of Led Zeppelin’s song Stairway to Heaven infringed the rights of the late songwriter and guitarist Randy Wolfe, of the band Spirit, in an earlier song called Taurus. The claim has been pursued on behalf of Wolfe’s estate by trustee Michael Skidmore.

For more about the Court of Appeals judgment, see Weekly Notes, 16 March 2020. For earlier coverage of this epic litigation on the ICLR blog, see Coda: Spirit of Led Zeppelin (between rock and a hard case) and If music be the food of law, plead on…

Recent publications and events

This IBA Human Rights Institute webinar was an urgent meeting called at short notice to enable the Bars of England and Wales, Scotland and N. Ireland to discuss the serious challenges to the rule of law raised by the Internal Market Bill. It took place on 7 October but you can still watch the recording via the IBAHRI website.

The Law Society and the Bar Council produced a briefing paper setting out their concerns for international, domestic law (particularly judicial review) and devolution here. The IBA previously held a webinar on the domestic and international legal implications of the Internal Market Bill which can be viewed here.

This webinar concentrates on the domestic aspects and the role of the Bar in maintaining, protecting and standing up for the rule of law. The speakers include Lord David Neuberger, former President of the UK Supreme Court, Dominic Grieve QC, former Attorney General for England and Wales, Lord Michael Howard, former leader of the Conservative Party, Joanna Cherry QC, SNP MP for Edinburgh South West, Baroness Helena Kennedy QC
Director of IBA’s Human Rights Institute, and Jessica Simor QC, Matrix Chambers, and Vice Chair of the Bar Council EU Law Committee, who introduces the panel.

Professor Leslie Thomas QC, Gresham College, 1 October 2020.

This inaugural lecture by the current Gresham Professor of Law focuses on human rights and the wrongs of unexpected and/or sudden deaths in which the state is implicated. It covers the importance of a proper death investigation, the impact on the family and state, how Magna Carta influences death investigations 800 years on, and current trends and statistics in state deaths.

How does the state show it cares when deaths occur? Does the state learn lessons? How can the bereaved move on?

The lecture, part of a series on Death, The State and Human Rights, should soon be available to watch on catchup, or you can read the lecture notes PDF.

The Middle Templar Magazine, traditionally distributed in print to members of the Inn, is now being published online via a newly created microsite. According to the blurb, the 2020 edition also covers the usual array of:

“Book reviews; Our Amity Visit to Canada in 2019 and the Mooting Trip to North Carolina; Updates from Temple Church and our colleagues at Temple Music; The excellent programme of activities and initiatives that our Education department have been running; Some fantastic historical pieces, including ‘A Potted History of the Office of the Under Treasurer’.”

There’s also an advertisement for ICLR on the inside front cover, which may remind you of a familiar case.

Emma Foubister of Matrix Chambers on Inforrm’s blog considers issues and practices that surround preliminary issue trials on meaning now that they have become the norm in defamation cases.

David Burrows, who regularly comments on family law and open justice on the ICLR blog, has written a post on his own blog in fairly critical terms about the government’s Independent Review of Administrative Law (IRAL) (mentioned in last week’s roundup). His Letter from a Leftie Lawyer criticises the government’s choice of chair, Lord (Edward) Faulks, a former justice minister under the disastrous Lord Chancellorship of of Chris Grayling, as essentially undermining the “independence” of the panel, and complains of how in the meantime the same government’s Prime Minister and Home Secretary in recent utterances have “plumbed further Trumpian depths in their numbing way as they decry ‘leftie lawyers’ and ‘do-gooders’”. Burrows, who as a solicitor advocate has pursued many judicial review cases himself, is well qualified to comment on a legal procedure designed to enable the courts to hold the executive to account. He is doubtful whether Faulks is as well qualified to review it.

— writes Robert Neill MP aka @neill_bob in a piece on Politics Home. “We need greater investment in prisons and probation, courts and legal aid if we’re to uphold the rule of law,” he says, yet the Ministry of Justice’s budget currently accounts for “a mere 1% of government spending”.

“The cost of righting these problems would be minimal in the grand scheme of expenditure and the benefits would be widely felt across society, particularly by some of the most vulnerable members of our community.”

Dates and Deadlines

Lectures to be given by Eleanor Sharpston, Advocate General of the European Court of Justice, under the series title The Great Experiment: Constructing a European Union under the Rule of Law from a Group of Diverse Sovereign States

Lecture 1, “Competing claims to pre-eminence and the lessons of history” will be hosted online by the Faculty of Advocates, Edinburgh on Thursday 29 October 2020, 18:00–19:00. Book here.

Lecture 2, “A new start, a new model, a unique challenge” will be hosted online by the School of Law Queen’s University, Belfast, on Monday 2 November 2020, 18:00–19:00. Book here.

Lecture 3, “Taking stock and looking forward” will be hosted online by Middle Temple, on Monday 23 November 2020, 18:00–19:00. For members of the Inn, book here. For non-member, please email members@middletemple.org.uk

For more information about the Hamlyn Lectures, see the University of Exeter Law School archive.

English-Speaking Union via Zoom — Tuesday 10 November, 7.30 pm.

Baroness Hale of Richmond, former president of the UK Supreme Court, will deliver a lecture entitled ‘Getting the Message Across: Communication and Transparency in the UK Supreme Court’. Booking via Eventbrite.

Free virtual event — 25 November 2020

The LexisNexis Family Law Awards 2020 will take place online at 4pm, on Wednesday 25th November. Please register your interest here to attend, and you will receive details of the virtual awards ceremony nearer the time.

It’s not too late to nominate winners under the various categories in this year’s shortlist.

And finally…

from a family brief shows something of which we are now seeing less and less

In days of yore, until data protection (or the enterprising Bin Man) started being taken seriously, you could often find piles of these bundles left outside court when the case was done, awaiting collection by clerks or destruction (by being left in a skip outside the back of the RCJ). Now the Lever Arch is the name of a doorway to the mythical cavern in the basement where old bundles go to die….

On that note, thanks for reading, have a great week, and keep on tweeting those top stories for the benefit of the rest of us.

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.