Weekly Notes: legal news from ICLR, 15 June 2020

This week’s roundup of legal news and commentary includes legal regulation, courts on camera and online, an audit of pandemic preparations, data protection, and anti-racism action.

Photo by Ben Rosett on Unsplash

Legal professions

A review by the Centre for Ethics & Law in the UCL Faculty of Laws led by honorary professor Stephen Mayson has recommended that all providers of legal services, whether legally qualified or not, should be registered and regulated by a single regulator, to be known as the Legal Services Regulation Authority (LSRA).

The two-year review was intended in part to explore the longer-term and related issues raised by the 2016 Competition and Markets Authority’s (CMA) ‘Legal services market study’ and its recommendations. The review aimed to “assist government in its reflection and assessment of the current regulatory framework”, with the aim of “maintaining the UK’s competitive position as a global leader for legal services and dispute resolution” following Brexit.

Mayson’s final report, Reforming Legal Services: regulating beyond the echo chambers (June 2020) has now been published. It points out in the preface that the current framework for the regulation of legal services in England & Wales is based on the self-regulation of the various different legal professions”, but that “on average only about 20% of their work falls into the category of services that are ‘reserved’ exclusively to them — though it will be higher for most barristers”. Moreover, the “current arrangement of ten front-line regulators, plus an oversight regulator, is cumbersome”.

It goes on to say that “the regulatory framework should better reflect the legitimate needs and expectations of the more than 90% of the population for whom it is not currently designed” and that to achieved this

“we should in future allow the registration and regulation of all providers of legal services, whether legally qualified or not. Registration and regulation should be the responsibility of a single, sector-wide, regulator to ensure a common, consistent and cost-effective approach, subject to a statutory duty to apply only the minimum necessary regulation. The nature of the regulation applied to registered providers would be founded on the public interest of furthering the rule of law and administration of justice. It would also focus on protecting consumers from harm or detriment caused by poor or inappropriate provision of legal services.”

See also: Legal Futures, Mayson calls for single regulator of all legal services

Law Society Gazette, Register every lawyer regardless of qualification — Mayson review, where John Hyde comments:

“While the report will no doubt attract significant interest in the profession, and has been submitted to the lord chancellor, it remains to be seen what appetite there is in Whitehall for overhauling legal services regulation. Justice minister Alex Chalk MP confirmed in a written parliamentary answer last month that the government had ‘no plans’ to review the Legal Services Act 2007, which created the current framework of regulators.”

Courts

A motion to approve the Crown Court (Recording and Broadcasting) Order 2020 and to amend the Court of Appeal (Recording and Broadcasting) Order 2013 was passed by the House of Lords on 8 June 2020. (The changes were approved by MPs without a vote.) By removing current prohibitions, these provisions would permit the recording and broadcasting of sentencing remarks in the Crown Court and of the argument and judgment of the Court of Appeal in family law appeals.

Their introduction by Lord Keen of Elie when presenting the motion to the House of Lords is informative and worth reading in full. He said:

“The two draft orders vary in effect and scope but share the common intent of increasing transparency, public engagement and understanding about what happens in courts. Very few people have the time or opportunity to attend and observe this in person. Increasingly, people rely on television and the internet for access to news and current affairs. It is right to respond to these changes in technology and society and allow cameras into our courts. There is evidence to suggest that the more informed people are about the justice system, the more confidence they will have in it.”

Currently most civil appeals in the Master of the Rolls’ court are livestreamed and remain available on the court’s YouTube channel, and some hearings of criminal appeals have also been filmed, as are all cases in the Supreme Court and Privy Council. Additionally, some remote hearings in the High Court and some other courts and tribunals have, incidentally, been broadcast or livestreamed for the purpose of providing public and media access, although the more usual open justice approach for remote hearings (if they are open at all, which many aren’t) has been to provide access to the hearing to those who wish to attend.

While there has been a small but steady increase in the number of Crown Court hearings conducted in physical locations, with some remote elements (hybrid hearings), the human rights charity JUSTICE has continued its series of mock jury trials online.

This fourth attempt went a lot better than the third (about which you can read here: Is Criminal Justice Under Lockdown Remotely Possible?) There seemed to be fewer interruptions and technical glitches, and the open justice advantages were more apparent. You can read more in these two blog posts:

In Whoops, I did it again! Online justice design flaw? (Lawyer Watch) Richard Moorhead (Professor of law and head of Exeter University law school) comments on a commercial law case in which a solicitor was overheard by members of the public in an online court room “badmouthing” an opponent’s witness.

“That it is not a jury trial reassures me that this one was probably an accident, but I’m guessing [the clients] are not that unhappy. The red faced solicitor has taken one for the team.”

Moorhead goes on to make the point that the issue is something that could be “designed out” of the system. The same could be said of some of the “noises off” heard by this viewer in the fourth JUSTICE mock jury trial (see above), including at one point during an adjournment hearing a stern command by someone to a pet or child to “stay outside”. No doubt there will be more of this sort of thing in weeks to come as we all catch up with the tech.

Health

The National Audit Office has published its report on Readying the NHS and adult social care in England for COVID-19 (12 June 2020). It is the second in a series of reports, following its Overview of the UK government’s response to the COVID-19 pandemic (May 2020).

This second report provides a factual overview of the response by the Department of Health and Social Care (DHSC) and other bodies during March and April 2020 to prepare the NHS and adult social care in England for the COVID-19 pandemic. Key points emerging from the summary include:

  • So far, government has allocated £6.6 billion from the Coronavirus Emergency Fund to support the health and social care response to COVID-19 and £3.2 billion directly to local authorities to respond to COVID-19 pressures across local services.
  • Action taken by the NHS to increase capacity meant there were enough beds and respiratory support nationally at the peak of the outbreak in April.
  • There have been numerous outbreaks of COVID-19 within adult care homes in England, with more than one in three reporting an outbreak between 9 March and 17 May.
  • Patients discharged quickly from hospitals between mid-March and mid-April were sometimes placed in care homes without being tested for COVID-19. On 15 April, the policy was changed to test all those being discharged into care homes. It is not known how many patients discharged to care homes had COVID-19 at the point they left hospital.
  • Testing for health and social care workers has faced challenges. The government does not know how many NHS or care workers have been tested in total during the pandemic.
  • A range of bodies across health and social care have raised concerns about the supply of personal protective equipment (PPE). At the start of the outbreak, the only central stockpile of PPE was designed for a flu pandemic. Although an independent committee advising on stockpile contents had recommended in 2019 that items such as gowns and visors should be included, these had not been stockpiled. The central procurement route set up to supply PPE during the outbreak met the modelled PPE requirement (under a worst case scenario) for some items in NHS trusts, but distributed 50% or less of the modelled requirement for gowns, eye protectors, or aprons. It only addressed a small proportion of the modelled requirement for PPE among social care providers.

Data protection

The Information Commissioner’s Office now has a useful Data protection and coronavirus information hub with articles addressing concerns about the use of personal data during the pandemic.

An obvious example is the various tracking and tracing systems being developed, including smartphone apps. But another side of the coin is the use of open data. In this regard the Open Data Institute has a piece on TrackTogether and the ODI Covid-19 project

“The aim of this project is to provide guidance and support to make the data, models and software being used to address the coronavirus pandemic as open as possible, while building and maintaining trust and working towards a future where data works for everyone.”

The app is not the NHSX one, which we discussed in an earlier post, but the TrackTogether one being developed by an international team using anonymous, aggregated data to better understand the disease and how it spreads.

Meanwhile, in a boost for data use transparency, Open Democracy reports how Under pressure, UK government releases NHS COVID data deals with big tech, saying

“Hours before facing court proceedings from openDemocracy over its massive NHS COVID-19 data deal with private tech firms, the UK government has caved to pressure and released all the contracts governing its deals with Amazon, Microsoft, Google, and controversial AI firms Faculty and Palantir. The contracts, released to openDemocracy and tech justice firm Foxglove today, reveal details of what has been described as an ‘unprecedented’ transfer of personal health information of millions of NHS users to these private tech firms.”

Though data was transferred, however, it appears it was to be used as training data, which is not as sinister as it can be made to sound: all AI or more accurately machine learning systems require training data to develop and become more accurate; it’s not necessarily retained and monetised beyond that, and should have been anonymised. However, NHS and personal data have a troubled history and it’s important that there should be clarity about what exactly is being used and how.

A couple of stories surfaced recently about facial recognition tech. First, The Verge reports that Amazon has banned police from using its its controversial Rekognition facial recognition platform for the next year. The report notes that

“Amazon did not give a concrete reason for the decision beyond calling for federal regulation of the tech, although the company says it will continue providing the software to rights organizations dedicated to missing and exploited children and combating human trafficking.”

The reason is assumed to be the now well documented issues with racial bias in the data used to develop the AI systems behind the products, and their sensitivity in the light of the current Black Lives Matter protests. The report adds that:

“The news comes just two days after IBM said it would no longer offer, develop, or research facial recognition technology, citing potential human rights and privacy abuses and research indicating facial recognition tech, despite the advances provided by artificial intelligence, remains biased along lines of age, gender, race, and ethnicity.”

The IBM story was also covered by Bloomberg: Microsoft Won’t Sell Face Recognition Software to Police

Black Lives Matter

ACLU reports that a lawsuit has been filed on behalf of Black Lives Matter D.C. representing protesters attacked with tear gas and other weapons by federal troops in front of the White House as they were demonstrating against police brutality.

The claim against President Donald Trump, Attorney General William Barr, and numerous other federal officials was filed by the American Civil Liberties Union (ACLU) of the District of Columbia, Washington Lawyers’ Committee for Civil Rights and Urban Affairs, Lawyers’ Committee for Civil Rights Under Law, and the law firm of Arnold & Porter. The claim asserts the defendants violated the protesters’ constitutional rights and engaged in an unlawful conspiracy to violate those rights.

The role of media and communication as anti-racist protesters take to the streets, via LSE blog. LSE Professor Bart Cammaerts reflects on the role of media and communications in the anti-racism protests going on in the US and elsewhere in the aftermath of the murder of George Floyd.

Law, history, slavery, by David Allen Green on his Law and Policy Blog.

“Many people — even those who have studied law and history — know almost nothing about how the law was used to facilitate slavery in English history.” If they know anything, they might recall Lord Mansfield’s decision in Somersett’s case (1772) 20 St Tr 1.

His post tries to “correct the skewed cod-history of British nostalgic exceptionalism” — as demonstrated by ill-informed tweets from politicians and others who should know better, and to “remind us of the extent to which Britain was involved in (and benefitted from) slavery and the slave trade”.

This is the statement made by the Bar Council on behalf of the whole profession, which ICLR is happy to endorse in support of the #BLM movement for change.

“The Bar Council is deeply saddened by events in Minneapolis and elsewhere that exemplify systemic racism and violence against black people. Excessive use of force offends the rule of law. It is imperative that all people are treated equally and that the law is applied equitably. The Bar Council resolutely supports the principles of justice and the rule of law and reaffirms our commitment to the promotion of equality, diversity and inclusion both within the profession and the community we serve. A strong Bar is one that reflects the society it serves.”Bar Council Statement on Equal Treatment, the Rule of Law and Inclusion

This is the statement made by the Bar Council on behalf of the whole profession, which ICLR is happy to endorse in support of the #BLM movement for change.

“The Bar Council is deeply saddened by events in Minneapolis and elsewhere that exemplify systemic racism and violence against black people. Excessive use of force offends the rule of law. It is imperative that all people are treated equally and that the law is applied equitably. The Bar Council resolutely supports the principles of justice and the rule of law and reaffirms our commitment to the promotion of equality, diversity and inclusion both within the profession and the community we serve. A strong Bar is one that reflects the society it serves.”

Recent news and commentary

A group of solicitors and barristers, spearheaded by Thomas More Chambers in London’s Lincoln’s Inn Fields, has launched the Association of Pandemic Lawyers (‘PanLaw’) in response to the ongoing fallout for the profession and society of Covid-19.

PanLaw aims “to provide coordinated, comprehensive and in-depth legal advice and assistance to everyone who has been impacted by the Covid19 pandemic and lockdown.”

Law Society Gazette: New Association of Pandemic Lawyers launches

Does the buck stop? Legal liability for death from Covid. Guest post by Henry Blaxland QC on the Secret Barrister blog. Deals with civil, criminal and public law claims against the government over its handling of the crisis, and the possibility of a public inquiry.

Latest on the Lockdown Challenge in the UK courts. Post by Rosalind English (UK Human Rights Blog), providing an update on judicial review proceedings challenging the legality of the Coronavirus Regulations.

Detention, Damages and Draft Remedial Orders: a look at the Strasbourg case law behind the proposal to amend the Human Rights Act. Alex Ewing (UK Human Rights Blog) discusses legislative responses to declarations of incompatibility, by reference to a recent draft remedial order laid before Parliament and the case in which the declaration of incompatibility was made.

My new “Guided Tours” at the Financial Times, in which David Allen Green (Law and Policy blog) introduces a series of audio-visual guides to documents, such as Statutory Instruments, on the Financial Times website. They are free, and very informative. You can see the one about Statutory Instruments, using the Coronavirus Regulations as an example, here.

In a further post on the same blog, he explains Why we should be worried about the use and abuse of statutory instruments.

Legal Information Management (LIM) celebrates its 50th birthday! An article about this, by the current editor, is available to read without charge on Cambridge Core: David Wills, ‘From The Law Librarian to Legal Information Management, From Bulletin to Journal: a Jubilee Year‘. (2020) 20(1) Legal Information Management, 4–16

“Last year the British & Irish Association of Law Librarians (BIALL) celebrated its 50th anniversary. A year on and the feature article in the spring 2020 issue of Legal Information Management (LIM) marks 50 years since the journal was launched in 1970. The journal started its life as The Law Librarian with the subtitle, Bulletin of the British and Irish Association of Law Librarians. In 2001, it changed its title to Legal Information Management. During its history there have been two publishers — firstly, Sweet & Maxwell and then, from 2004, Cambridge University Press, our current publisher. The journal has been the main publishing vehicle for BIALL for 50 years and remains the leading journal in the British Isles concerning the law library and legal information industry.”

#DefundtheBBC: the anatomy of a social media campaign. Steven Barnett and Doug Specht, via Inforrm’s blog, explain how a supposedly spontaneous social media campaign can start to gain traction, and how it may be connected to Brexiteers and the tabloid press.

“From the very beginning, the campaign wanted to look like a spontaneous eruption of popular anger. In practice, it looks like a suspiciously coordinated operation, linking together several pro-Brexit, free-market (and in a few cases far-right) social media accounts.”

Dates and Deadlines

Via Zoom — 24 June 2020, 18:30–20:30 BST

YLAL Cymru is pleased to host an event focusing on access to justice and legal advice deserts in Wales. The Commission on Justice in Wales recently identified substantial issues concerning access to justice and advice deserts. We speak to people from a range of sectors in Wales who are working hard to ensure clients can access justice. The event will feature a panel including:

  • Angharad Price — EHRC Cymru
  • JJ Costello — Shelter Cymru
  • Hussein Said — Speakeasy Law Centre
  • Annie Bannister & Sue James — North Wales Law Centre Project

Please register for a free ticket via Eventbrite.

ICLR News

Georgina Orde, Susanne Rook and Paul Magrath from ICLR joined the Lord Chief Justice and thousands of other lawyers — all walking in isolation and in different locations — to raise funds for the London Legal Support Trust 10,000 Steps for Justice appeal, helping to fund Law Centres and pro bono agencies in and around London.

You can read more about it here.

You can still contribute to our fundraising page here.

And finally…

is from Sarah Robson showing a positive side of remote hearings

A hint as to why it might all be going so well for Sarah was provided in one of her earlier tweets

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.