Weekly Notes: legal news from ICLR, 14 December 2020
This week’s roundup of legal news and commentary includes vaccination, legislation, regulation, litigation, explanation and, hopefully, the prospect of some ultimate relaxation.
The approval and the commencement of a programme to administer a Covid vaccine will have implications for all aspects of life, including the restrictions on social and commercial life which various iterations of the legally-enforced lockdown have imposed. While the current restrictions seem likely to continue, there is the prospect of future relaxation, which currently give more grounds for optimism than the stalled and stumbling Brexit negotiations.
The excellent Law & Religion UK blog in its latest roundup discusses some of the ethical issues that can arise in respect of the way the vaccines have been developed, and the use of churches as vaccination stations. See Law and religion round-up — 13th December
On a more festive note, it reports that the Central Council of Church Bell Ringers has agreed with the COVID recovery team of the House of Bishops that an exception should be made to the current ringing guidance across all Tiers in England to enable bells to be rung on Christmas Eve and Christmas Day.
Amidst the current gloom, perhaps nothing so well reflects the spirit of hope and renewal at this time of year than the sound of bells ringing across the land. (But remember, this is NOT a ringing endorsement of government conduct or competence, let alone the depressing ding-dong of Brexit trade deal negotiations.)
The House of Lords last week voted to approve a Labour amendment to the Trade Bill that would require performance of human rights risk assessments in proposed trade agreements, as well as enabling revocation of trade agreements with countries that are found by the High Court to have committed genocide. The amendments, numbered 8 and 9, were introduced during the report stage in the Lords.
According to the UK Human Rights Blog, “The measure has been proposed in response to allegations that China is committing genocide against the Uighur Muslims in Xinjiang province.”
For more detail of the amendments, see Jurist, UK House of Lords votes to require human rights risk assessments in proposed trade deals
Read the full debate on Hansard, Volume 808: debated on Monday 7 December 2020, 2 pm, column 1032 onwards.
UK Internal Markets Bill
The House of Commons voted last week to reinsert controversial clauses in the United Kingdom Internal Market Bill which would enable the government to break international law (in a limited and specific way) by allowing ministers to unilaterally override the Northern Ireland protocol agreed with Brussels as part of last year’s Brexit Withdrawal Agreement. However, as reported on Politico, the government later conceded that it would be prepared to remove the controversial clauses in domestic legislation which would breach international law if the U.K. and the EU can agree solutions that render them unnecessary. The UKIM is currently in “ping-pong” (or as the Prime Minister once called it, whiff-whaff).
UK in a Changing Europe: The Internal Markets Bill as a work of auto-destructive art, (commentary by Colin Murray, Reader in Public Law, Newcastle Law School).
Following referrals by the Criminal Cases Review Commission, six former subpostmasters have had their convictions quashed, in the latest development in the long-running Post Office Horizon IT scandal. In essence, this is about sub-postmasters being held liable for discrepancies over which they had no control in an accounting system that turned out to have been seriously flawed and who were prosecuted on the assumption that it was they, and not the flawed IT system, that was to blame. Many were pressurised into admitting loss or fault and a large number were also convicted for offences based on the system’s faulty accounting. Now that the system’s failings have been revealed, these convictions are being overturned. There was also a massive civil damages claim.
The story has been covered extensively and tirelessly by journalist Nick Wallis, via the Post Office Trial website, and investigative journals like Private Eye, but not nearly as prominently as it deserves to have been in the national press and broadcast media. Wallis has also been live tweeting:
This is a story about institutional arrogance, about misplaced faith in IT, about corporate immunity and about the triumph of patient and righteous persistence in the face of adversity. If Charles Dickens were alive today, he’d be writing a novel about it. Who amongst our present day novelists is equal to the task?
In a recent article for Prospect magazine’s new legal report, Sir Robin Jacobs, former Lord Justice of Appeal, comments on the writing of judgments, which he says are often far too long. He explains that
“a judgment is not meant to be a thesis. It is to explain what the case is about and why the judge is deciding it the way he or she does. That is all. The primary audience is the parties, particularly the ‘guy who loses,’ as one American judge put it.”
Jacobs laments the fact that the writing of judgments is not included in judicial training and that “they are on average nearly twice as long as they were 50 years ago”. This prolixity is in part the fault of digital technology and the ease with which cited material can be copied and pasted into something that will, itself, be cited and copied and pasted, and so on ad infinitum. (Excessive citation is another evil of which a number of judges have complained, and Jacobs makes the point that excessive length only adds to the costs of lawyering, both in the time to research and the time to present new cases.)
He proposes a 13-point Code of judgment writing, which includes — ahem — some repetition. For example, he says:
“8. When you have done your first draft judgment, go over it and cut out unnecessary words or see if you can say something more succinctly;
9. Then do it again;”
But some of the points are relevant to what we do here at ICLR: writing case report headnotes. He says:
“6. Keep your recital of facts to what is necessary;
7. Avoid any detail that is not important;”
Lord Neuberger, former President of the UK Supreme Court, who also has an article in this issue of Prospect, has also given advice on the writing of judgments — in particular stressing the importance of addressing a public audience when giving judgment in open court, as well as letting the parties know what has happened. See his 2012 BAILII lecture, No Judgment, No Justice.
See also: Litigation Futures, Former CA judge puts forward code to shorten “overlong” rulings
Kindness in clarity
One judge who has been praised for their judgment recently is Miss Recorder Henley in the Family Court at Newcastle upon Tyne, who not only allowed the two children in the case to choose their own “judgment names” for the purposes of publication, but addressed the judgment to them in the form of a letter: see Robin-Simmers and Adrien (Children : Care Order)  EWFC B52. She begins:
“Dear Robin-Simmers and Adrién,
1. I really enjoyed meeting you both on Monday. I listened carefully to your questions and to what you told me. I could not answer all the questions you had for me then because I had not listened to everything I needed to before I reached my decision. I have now listened to the views of your mum and dad, your social worker and your Guardian and I have agreed to keep this case going until February 2021 to allow your parents to do some work to see if they will be able to change and parent you safely in future. There are two choices going forward; either I agree to you going home to your parents or you will stay in foster care in the long term.”
This is as far as you can get from the sort of dense academic treatise, replete with citation, against which Jacobs issued his broadside. It goes out of its way, indeed, to explain the reasons to those most affected by the decision. If the case had involved more complex points of law, they could have been addressed in a separate section or supplementary judgment.
See also: Suesspicious Minds, Child-friendly judgment and end to alphabet soup?
Tempting as the prospect of going viral on Twitter might be, one thing judges should perhaps avoid is showmanship, the florid or extravagant or highly literary opening paragraph being a particular aspect of this.
This can be fun, in so far as it goes, and may help let off a little judicial steam; but there are occasions when it can go too far. A judgment earlier this year, widely shared on Twitter, appeared to be little more than an exercise in ritual humiliation of a litigant (over what was, to be fair, a preposterous claim — but still.)
Wellbeing at the family bar
Although last month’s COVID-19: Overview of HMCTS for Civil and Family Courts and Tribunals stated that “There are currently no plans to introduce COVID [ie extended] Operating Hours in the family courts”, Lucy Reed in a recent post on her Pink Tape blog says it is happening anyway, simply by virtue of extended listing and the endless pressure to make an overworked system continue to work:
“we are now working with practically no breaks, often starting hearings at 9 or 9.30am and sitting late — and more and more judges are slotting in a directions hearing at 9, or 1 or 4pm. And for every 9am or 4pm hearing there is an 8.30 advocates meeting and an 8am (attempted) call to a client, or an advocates meeting bumped back until 5pm. As I said last week, this is covid operating hours by stealth, and we are all like boiling frogs. And all around me my amphibious colleagues are starting to say ‘Is it me, or is it getting a bit hot in here?’
In The princess and the parsnip of wellbeing, Reed says the remedy cannot simply rely on put-upon practitioners being able to say “no”:
“Counter intuitive as it is, we need a hard rule from the top — a rule that binds judges as well as lawyers : no 9ams. No late hearing slots. Don’t ask us : tell us. Don’t talk about wellbeing, don’t tell us to be mindful of it : make wellbeing happen through enforced sustainable practice.”
Law in the media
Joshua Rozenberg, himself an eminent legal journalist, notably with the BBC, notes in his latest newsletter that The Guardian is to lose its well respected legal correspondent, Owen Bowcott, who is taking voluntary redundancy. This comes hard on the heels of the departure of Clive Coleman from the BBC, says Rozenberg, who now writes mainly as an independent commentator, via his A Lawyer Writes blog, though he still presents the BBC’s Law in Action on Radio 4. He points out that when Frances Gibb retired from The Times last year she was succeeded by Jonathan Ames. He and Kate Beioley of the Financial Times are now “the only full-time legal journalists employed by London-based news organisations”.
Many older readers of this blog (which is not going anywhere) may remember when Rozenberg was the BBC’s law courts correspondent, frequently to be seen or heard from outside the Royal Courts of Justice, when all the major broadsheets employed a dedicated legal correspondent (Frances Gibb being one of them) and many of them also carried legally citable law reports. Only The Times still publishes them, and rather less promptly than before; but for a while the Independent, Guardian, Financial Times and even the Daily Telegraph published legal summaries written by barristers or solicitors, which in many cases remain the only indexed citation for an otherwise unreported decision.
That was, of course, before we had BAILII. And it is probably the ready availability of so much excellent legal blogging and commentary that has made specialised newspaper coverage seem less important, or at any rate less commercially viable. The problem is that without such specialist correspondents, the media are more prone to getting the stories wrong or failing to challenge the loudest voices, whether they be from the government or the one-sided views of litigants and campaigners. And too often the media see themselves as in competition with BAILII and other sources of legal information, rather than as a gateway to people’s understanding of all the material now freely available.
AI + BAILII
Researchers at the University of Oxford can now use artificial intelligence (AI) to explore judicial cases across England and Wales, thanks to an historic agreement with the British and Irish Legal Information Institute. An announcement from BAILII states that they have granted the Unlocking the Potential of AI for English Law (‘AI for Law’) research team bulk access to their entire dataset of judicial decisions for research purposes.
Although publicly available, the bulk download of data necessary for natural language processing analysis (a form of artificial intelligence) has been prohibited under the terms of the standard user agreement — until now. This will be the first time BAILII have granted such access to any organisation.
This is an exciting development from a lawtech perspective, although it may give rise to anxiety among the judiciary that their decisions will be analysed for signs of bias or used to predict litigation outcomes, as has happened in some other jurisdictions. (In France, judicial analytics have been expressly outlawed.) The Oxford project will be subject to ethical safeguards, and is subject to review by stakeholders at the Ministry of Justice and the Judiciary; but there must be concern that similar projects from a commercial background might not be. Careful governance will be required.
Dates and Deadlines
The Michaelmas Term ends on 21 December 2020. There will be a short vacation over the holiday and New Year period, before term resumes again, with the start of the Hilary Term on Monday 11 January. This post may well be the last roundup of this year, but we may still do some other posts on the ICLR blog. It only remains for us to wish everyone a very pleasant and relaxing break from work, in the bleak midwinter, and a reminder to stay safe and protect your bubbles.
Tweet of the week
is a proud moment from Rocket, one of the women responsible for the award-winning Birds Eye Podcast, reflecting the life of women in Darwin Correctional Centre in Northern Territory, Australia.
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.