Weekly Notes, legal news from ICLR, 19 July 2021

This week’s roundup of legal news includes the latest relaxation of coronavirus restrictions, annual reports on the courts and judiciary, data protection, plus recent cases and commentary.

Onwards and upwards. But will we ever get there? Photo by elCarito on Unsplash

Legislation

The latest (step 4) relaxation of lockdown restrictions for England came into effect today (19 July: so-called Freedom Day), by virtue of, inter alia, the Health Protection (Coronavirus, Restrictions) (Steps etc.) (England) (Revocation and Amendment) Regulations 2021 (SI 2021/848) under which social distancing laws, the lockdown & face covering regulations cease to apply. See this thread by Adam Wagner on Twitter, who explains that these regulations revoke:

  • Steps regulations (lockdown/social distancing requirements)
  • Face covering regulations
  • Collection of contact details by businesses
  • Obligations and undertakings on/by businesses

What they don’t revoke (and so remain in force)

  • Self-isolation regulations (requiring you to self isolate if told to by NHS Test and Trace and others)
  • Travel regulations (hotel quarantine, self-isolation after entry etc).

All the relevant regulations can be found in Wagner’s Table of Covid-19 Lockdown Regulations.

Restrictions in Scotland and Wales are expected to be lifted soon as well. See also the latest post from Law & Religion UK on COVID-19 legislation and guidance: update to 24 July for more detail, particularly on how this affects religious activities.

To mark the new freedoms, anti-lockdown protesters protested against the very thing that was no longer in force. See Metro: Anti-lockdown protesters demand end to lockdown on day lockdown ended. (Some people just can’t take yes for an answer.)

Meanwhile the Prime Minister, far from basking in the glory of the nation’s new-found freedom, was forced instead to hide away at his country house (Chequers, mate), unable to wriggle out of self-isolation rules applying to everyone else (though he looked as if he wanted to try). Ditto, mutatis mutandis, the Chancellor. And to cap it all the gung-ho new Health Minister was actually nursing his own dose of Covid. All in all, a bit of a damp squib.

Courts

Following the removal of the legal requirement for social distancing, HM Courts and Tribunals Services will begin “Safely increasing capacity in our buildings from 19 July”, according to the latest blog post from CEO Kevin Sadler. He said:

“Working with the judiciary, we will be increasing capacity safely to reduce outstanding cases, and as a result the number of people in our buildings will gradually increase. This will happen alongside continued use of audio and video technology to enable remote attendance. We will also continue to encourage the regular use of lateral flow tests..”

There will be a revised organisational risk assessment, but in any event face coverings will continue to be required most court buildings, and there will be continued use of screens or barriers to separate people from each other. The existing courts and tribunals coronavirus guidance and organisational risk assessment and local assessment tool have been updated.

To get input from court users, HMCTS have organised an online discussion for legal professionals on Tuesday 27 July 2021 at 5pm to 6pm. The session will discuss how HMCTS are responding to Step 4 of the government’s roadmap out of national restrictions for England. The event will be chaired by Paul Harris, HMCTS Operations Director, with questions and feedback steered by legal professional body representatives who will also sit on the panel, including representatives from The Law Society, Bar Council, Criminal Bar Association and CILEX. Registration for the event is now open.

“We have faced performance challenges across all jurisdictions”, said Kevin Sadler as one of the co-authors of the latest Annual Report and Accounts; the other is Tim Parker, Independent Chairman of the HMCTS Board. Together they report how, “at each turn, just as society has had to adapt more widely, so we have had to revisit and update our plans to ensure that access to justice can continue to be maintained safely and securely”.

“Against an operational backdrop like the one we have experienced in the past year, the progress that we have been able to make with our ambitious Reform Programme has been nothing short of remarkable. Without the foundations put in place over recent years through reform, our efforts in the face of the pandemic would have been exponentially more difficult.”

Just to have kept going to some extent was indeed an achievement. Nevertheless, many of the service’s performance metrics are disappointing, for reasons that cannot be blamed on the pandemic, since they follow a trend dating back several years. For example,

  • Crown Court cases outstanding at the end of 2018–19 were at 33,290 growing to 41,015 in 2019–20 and then 59,532 in 2020–21. That’s almost doubling in just three years.
  • In the family courts the average time taken for disposal of a private law case grew from 23 weeks in 2016–17 to 40 weeks in 2020–21, and for disposal of a public law case from 28 weeks to 42 weeks over the same period.
  • Civil cases are also taking longer, from an average of 31 weeks for small claims in 2016–17 to 52 weeks in 2020–21.
  • Employment tribunal cases are also taking much longer: from 25 weeks in 2017–18 to 35 weeks in 2019–20 and then a further jump to 42 weeks in 2020–21. In short, the system was already struggling well before Covid hit.
  • Bucking this trend (and somewhat confounding some of the more hysterical “the system is broken” justifications for drastic provisions in the new Immigration and Borders Bill) the First-tier Tribunal’s disposal of immigration and asylum cases has actually improved slightly, from 46 weeks average clearance time in 2016–17 to 43 weeks in 202-21.

The key challenges for the next year, says the report, are increasing courts and tribunals capacity safely (including reopening court buildings, making more use of remote hearings, and increasing judicial sitting days) and continuing the HMCTS Reform programme.

The report also includes a list of personal data-related ‘incidents’, which have been reported to the Information Commissioner’s Office (ICO). This includes non-HMCTS incidents, such as when a member of the public rebroadcast a CVP hearing via their Facebook account in September 2020, and the official court transcription firm Ubiqus being hit by a ransomware attack (!) in December 2020.

The accounts show a dramatic drop in operating income (mainly derived from court fees) against an overall increase in costs. Increasing capacity is not just an end in itself: the justice system is expected to fund itself.

Judiciary

Overall, there is no evidence of disparity for women in judicial selection exercises in 2020–21, according to the latest official statistics on judicial diversity, but women remain under-represented in the courts judiciary, particularly in senior roles. Nor is there any evidence of disparity for black, Asian or other minority ethnic candidates in judicial selection exercises; but while such individuals were over-represented in applications for judicial appointment in the past three years of legal exercises, they had lower recommendation rates than white candidates. Moreover, while the proportion of Asian and mixed ethnicity individuals in the judiciary has increased since 2014, the proportion of black individuals has stayed the same in that time, and proportions of ethnic minorities generally remain lower in senior court roles.

Most candidates are drawn from the legal professions, and the report records diversity information about them as well. It notes that, as at 1 April 2021, there were 17,123 barristers, 154,208 solicitors and 8,769 Chartered Legal Executives (out of a total CILEX membership of around 21,000). Women constituted 39% of barristers, 52% of solicitors and 76% of Chartered Legal Executives. The proportion of women is notably lower among legal professionals with 20 or more years’ experience. Women are also less well represented in senior positions, where 18% of Queen’s Counsel (barristers), 33% of partners (solicitors) and 70% of Chartered Legal Executive partners were women.

At 1 April 2021, 15% of barristers, 18% of solicitors and 14% of Chartered Legal Executives were from Black, Asian and minority ethnic backgrounds. Representation of individuals from Black, Asian and minority ethnic backgrounds is lower among legal professionals with more experience and among higher seniority positions. Individuals from Black, Asian and minority ethnic backgrounds together represented 10% of the Queen’s Counsel (barristers), 16% of partners (solicitors) and 10% of partners (Chartered Legal Executives).

The overall number of court and tribunal judges has fluctuated over time, and there is no consistent pattern of increase or decrease, says the report. But as at 1 April 2021, by primary appointments there were: 3,314 court judges and 1,711 tribunal judges, with an additional 3,134 non-legal members of tribunals. The report notes that

“When comparing the Black, Asian and minority ethnic representation among judges to that of the general population, it is important to consider the relationship between age and ethnicity. … judges are older on average than the working age population and distributed towards the upper ages of this range… where the proportion Black, Asian and minority ethnic is lower.”

This year for the first time the report includes data on the intersection of diversity characteristics: gender with ethnicity, gender with professional background, ethnicity with professional background and the intersection of gender, ethnicity and professional background. The many findings from this analysis can be found in the main body of the report.

See also: Legal Futures, Lammy hits out at “absolute scandal” of judicial diversity

Data Protection

The Guardian reported that hacking software sold by the Israeli surveillance company NSO Group ostensibly for use against criminals and terrorists has been used by authoritarian governments to spy on human rights activists, journalists and lawyers across the world. Pegasus is a malware that infects iPhones and Android devices. The investigation by the Guardian and 16 other media organisations followed a massive data leak. The NSO group styles itself “the world leader in precision cyber intelligence solutions for the sole use of vetted-and-approved, state-administered intelligence and law enforcement agencies”. But Amnesty International, said the spyware “has been used to facilitate human rights violations around the world on a massive scale” and said NSO’s technology facilitated “systemic abuse” and “widespread human rights violations”.

See also:

International law

There were tweets from many other jurisdictions as well as our own, on 17 July, marking the anniversary of the adoption of the Rome Statute of 1998, ratified by over 120 countries, and the founding of the International Criminal Court in The Hague, NL.

Joshua Rozenberg had a piece in the Law Society Gazette interviewing Karim Khan QC, who was sworn in last month for a nine-year term as prosecutor of the International Criminal Court: A pragmatist seeking to restore high ideals.

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.3:

CONFLICT OF LAWS — Jurisdiction under EU Regulation — Special jurisdiction: DG v SC Gruber Logistics SRL, 15 Jul 2021 (Joined Cases C-152/20 and C-218/20); EU:C:2021:600; [2021] WLR(D) 395, ECJ

COSTS — Discretion of court — Application against non-party: Goknur Gida Maddeleri Enerji Imalet Ithalat Ihracat Ticaret ve Sanayi AS v Aytacli, 13 Jul 2021 [2021] EWCA Civ 1037; [2021] WLR(D) 386, CA

CRIME — Criminal Injuries Compensation Authority — Compensation, whether payable: R (A) v Criminal Injuries Compensation Authority, 09 Jul 2021 [2021] UKSC 27; [2021] WLR(D) 389, SC(E)

FIRST-TIER TRIBUNAL — Tax Chamber — Jurisdiction: Kandore Ltd v Revenue and Customs Comrs, 16 Jul 2021 [2021] EWCA Civ 1082; [2021] WLR(D) 394, CA

HUMAN RIGHTS — Respect for private and family life — Discrimination: R (C ) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) (R (SC) v Secretary of State for Work and Pensions), 09 Jul 2021 [2021] UKSC 26; [2021] WLR(D) 382, SC(E)

IMMIGRATION — Leave to remain — Indefinite leave: R (Mungur) v Secretary of State for the Home Department, 15 Jul 2021 [2021] EWCA Civ 1076; [2021] WLR(D) 393, CA

MARRIAGE — Divorce — Financial provision: A v A, 09 Jul 2021 [2021] EWHC 1889 (Fam); [2021] WLR(D) 388, Fam D

RESTITUTION — Unjust enrichment — Benefit: School Facility Management Ltd v Governing Body of Christ the King College, 12 Jul 2021 [2021] EWCA Civ 1053; [2021] WLR(D) 383, CA

TELECOMMUNICATIONS — Electronic Communications Code — Code rights: EE Ltd v Stephenson, 14 Jul 2021 [2021] UKUT 167 (LC); [2021] WLR(D) 390, UT

TRUSTS — Constructive trust — Trust arising on rescission of agreement: Vale SA v Steinmetz, 16 Jul 2021 [2021] EWCA Civ 1087; [2021] WLR(D) 391, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.3 includes:

NIPC Law: Interim Injunctions — AutoStore Technology AS v Ocado Group Plc: Autostore Technology AS v Ocado Group plc [2021] EWHC 1614 (Pat), Ch D

Law & Religion UK: Hijabs and employment in the CJEU: IX and MH Müller Handels GmbH v WABE eV and MJ (Joined Cases C-804/18 and C-341/19); EU:C:2021:594, ECJ

Free Movement: Blanket rule delaying family reunion for temporary refugees violates human rights: MA v Denmark (Application no. 6697/18), ECtHR

RPC Perspectives: Expert evidence is not an absolute right: High Court issues stark reminder that breaches of rules on expert evidence will not be tolerated: Dana UK AXLE Ltd v Freudenberg FST GmbH [2021] EWHC 1413 (TCC), QBD

Free Movement: Denying benefits to EU pre-settled status holders justified if no fundamental rights breached: CG v The Department for Communities in Northern Ireland (Case C‑709/20); EU:C:2021:602, ECJ

Free Movement: Supreme Court dismisses deportation appeal of man living in UK since he was 9: Sanambar v Secretary of State for the Home Department [2021] UKSC 30, SC(E)

Other recent publications

In Dyson on Bashir, the former Master of the Rolls Lord Dyson shares with Joshua Rozenberg the lessons he learned from his BBC inquiry into the events surrounding the notorious Princess Diana interview that was shown on Panorama in 1995. The post is based on Rozenberg’s own interview of Dyson arranged by the British Friends of the Hebrew University legal group.

In Torn Apart: Family Courts Uncovered: Dispatches, 10 pm Tuesday 20 July 2021, Channel 4 Dispatches looks inside the family courts system and reveals how courts can order the police to forcibly remove children, who are not in danger, from loving homes. Described as “An unprecedented look at what’s going on behind closed doors in family courts, including shocking personal testimony and footage”. Presented by reporter Louise Tickle, and featuring interviews with Sir James Munby and Dr Charlotte Proudman. Among other things it is a powerful indictment of the blanket of secrecy mandated by section 12 of the Administration of Justice Act 1960.

Inforrm’s blog has a number of recent posts on the Online Safety Bill, including:

Joshua Rozenberg comments in the Law Society Gazette on government plans to apply official secrecy law to journalistic activity: Mapping the public interest in hostile territory. Journalists may face up to 14 years in prison for publishing secret documents under current government plans — with no public interest defence for whistle-blowers. And foreign agents could be prosecuted for spying without a licence. The public consultation ends this week (22 July).

And Finally…

is from Judge Stephen Dillard of the Court of Appeals of Georgia, who has just found a new hobby:

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.