Weekly Notes: legal news from ICLR, 19 October 2020

This week’s roundup of legal news and comment focuses on some new laws that legalise the breaking of laws, the historic role of magistrates, the state of family justice and some recent publications.

12 min readOct 19, 2020

Legislation

UK Internal Markets Bill

A critical Report by the House of Lords Select Committee on the Constitution has been published in advance of the second reading of the United Kingdom Internal Market Bill in the House of Lords on 19 October. The report says the Bill’s “rule of law implications have received considerable attention” but points out that “the impact of the Bill on devolution is at least as significant and, outside the devolved nations, has been much less discussed”. It explains that:

“The Bill adopts an unnecessarily heavy-handed approach to reconciling the demands of free trade within the UK and the need to respect the role and responsibilities of devolved institutions. It provides the UK Government with powers that could allow it to alter the competences of the devolved administrations in significant ways. As such, it risks de-stabilising this integral part of the UK’s constitutional arrangements — at a time when it has never been more important for central and devolved governments to work together effectively.”

Moreover, this heavy-handed approach is unnecessary, they say, since there are existing powers under the European Union (Withdrawal) Act 2018 to deal with the successful operation of the UK domestic market.

As to the Rule of Law, “The Bill provides extraordinary delegated powers that the Government acknowledged are for the purpose of breaking international law,” something the Committee says is “without precedent”.

“The Government has not provided a satisfactory justification for this course of action and we do not consider that there can be one. This constitutionally dangerous approach is compounded by the Government seeking to put these powers beyond the reach of judicial oversight — a step that is also fundamentally at odds with the rule of law.
A government that disregards the rule of law cannot easily restore it. Any diminution of the rule of law is cause for serious concern. Society cannot afford to take this principle for granted or acquiesce in its violation.”

Covert Human Intelligence Sources (Criminal Conduct) Bill

Another controversial Bill, which had its third reading before the House of Commons on 15 October, the Covert Human Intelligence Sources (Criminal Conduct) Bill has attracted the nickname of “Licence to Kill Bill”. That’s because it seeks to legitimise, or at any authorise, the commission of serious criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources. Undercover cop crime, in other words.

This Bill has now completed all its stages in the House of Commons, where it passed by a majority of 313 to 98, and will now go to the House of Lords for consideration. Last month the House of Lords Constitution Committee issued a call for evidence as part of its legislative scrutiny of the Bill.

The UK Human Rights Blog says the Bill “has faced criticism on the basis that it does not exclude the most serious crimes, namely sexual assault, torture, and murder” and that “Critics have also highlighted the political implications: undercover policing has disproportionately targeted left-wing groups, such as anti-fascist groups, environmental activists, and trade unions.”

The Campaign Opposing Police Surveillance was one of a number of organisations, union leaders and MPs who signed a joint statement opposing the Bill. As COPS explained on their website, the Bill

“would enshrine in law not only the right for spycops to commit the abuses that have caused so much public outrage, but much more besides. Crimes would be permissible if they protect whatever is meant by ‘the economic wellbeing’ of the country. Authorisations would be given without limit or judicial oversight. The powers would extend well beyond the police and security services to include the likes of the Food Standards Agency, Competition & Markets Authority, and the Gambling Commission.”

Family

President’s praise for progress

The President of the Family Division, Sir Andrew McFarlane has praised the progress made by the family justice system this year, in spite of, or possibly because of, the exceptional conditions imposed by the coronavirus pandemic. In his address to Resolution’s virtual conference on the Future of Family Practice last week, as reported by the Law Society Gazette, he said

“family was ‘above all areas of law in England and Wales’ in keeping going during the pandemic. While jury trials had to be halted and it was difficult to get other matters going from day one, family ‘pressed ahead and achieved a surprising penetration into the volume of cases’. McFarlane said some courts now had no backlog of cases. Others had a backlog ‘but they have got a plan for dealing with them. People are just cracking on and getting through the work. ‘We are sitting, and have sat, more days in family than ever before, despite the fact we have not had the courtrooms,’ he added.”

A panel discussion on Access to family justice during the Covid-19 pandemic was hosted by Law Works on 15 October, featuring Simon Bruce (solicitor with Farrers, plus four different law clinics), HHJ Jonathan Furness QC (Designated Family Judge for SE Wales), Celia Kitzinger (academic and co-founder of Open Justice Court of Protection project), Lucy Reed (barrister, blogger and chair of the Transparency Project) and Zimran Samuel (barrister at Doughty St chambers).

CAFCASS launches Learning and Improvement Board

Cafcass has recently published terms of reference for its new Learning and Improvement Board, which will oversee an improvement programme for Cafcass’ work with children and families who have experienced domestic abuse. The priorities for improvement will draw on the findings of the Ministry of Justice (MoJ) Expert Panel on Harm in the Family Courts (2020).

The Board will include professionals, parents and young people and will be co-chaired by Cathy Ashley (Chief Executive of Family Rights Group) and Angela Frazer-Wicks (Trustee of Family Rights Group and a founding member of its Parents’ Panel).

Judiciary

LCJ speaks to Magistrates Association

Addressing the Magistrates Association AGM on 17 October 2020, under the title Looking forward — another century of excellence, the Lord Chief Justice, Lord Burnett of Maldon added his tribute to celebrations of the Association’s centenary as what he called “the independent voice of Magistrates”. The Association’s first meeting was held at Methodist Central Hall on October 28 1920, following an earlier gathering in the Guildhall hosted by the Lord Mayor which resolved to establish it.

The founding of the Association is comparatively recent in the long history of the magistracy, which can be traced back to the moot courts of Anglo-Saxon times, though it was the Justices of the Peace Act 1361 (still in force today) which defined the role, as the Chief explained:

“It required the appointment in every County of England of one Lord and three or four of the most worthy, only some of whom needed to be learned in the law, to keep the peace. And they — that is to say you — were given ‘Power to restrain the Offenders, Rioters, and all other Barators, and to pursue, arrest, take, and chastise them according their Trespass or Offence; and to cause them to be imprisoned and duly punished according to the Law and Customs of the Realm’. The Act remains in force today. Although I doubt you have much cause for restraining barators now, as the offence was abolished in 1967. That was the offence of persistently stirring up litigation before the courts. It seems vexatious litigants have been with us for a long time.”

The speech continues with a potted history of the office of justice of the peace, not all of whose holders have upheld its finest traditions, some of them being corrupt, others the butt of literary satire; but it was also a literary occupant of the role (the novelist Henry Fielding) who “helped mould our modern criminal justice system”.

Praising an institution once described by his predecessor Lord Bingham as “a democratic jewel beyond price”, the Lord Chief Justice said the current number of 13,000 magistrates “must be increased, and increased rapidly”, though in terms of diversity it is doing well, with 56% of magistrates being women and 13% from ethnic minorities. “Next year will see the development of a targeted, and evidence-based, national recruitment campaign. I hope to see it launch in the Spring.”

However … the Lord Chief Justice did not have anything to say about the continued operation of magistrates’ courts during the current year, under the coronavirus lockdown. Perhaps that came elsewhere on the agenda. It certainly hasn’t been easy, and as we reported last week arrangements have been made to extend court hours (they already sit on Saturdays) to accommodate the growing backlog of cases. According to HMCTS in their weekly update,

“Magistrates’ courts are now dealing with most business type hearings. Since August 2020, magistrates’ courts have been completing more cases than have been received and the number of sittings are almost at pre-covid levels. We are working hard to return this to 100%, in a COVID-safe way.”

However, not everything is going to plan:

Judicial participation in research projects

The Judiciary website has recently published new guidance on the circumstances in which the judiciary can be asked to participate in research projects, and the process for obtaining approval. It points out that judicial resources are limited and therefore research applications will not normally be accepted from secondary school students, undergraduates or those on post-grad masters or other taught courses. “Similarly,” it says, “we would not normally accept foreign research applications, unless there is a unique reason to encourage comparative study in a particular subject.”

Applications for approval of judicial participation in research should be sent for consideration by the relevant Head of Division or Senior Presiding Judge or President of Tribunals, who may in turn refer to other senior judges, to HMCTS, or to the Ministry of Justice Data and Analytical Services Unit for their views.

The Guidance sets out what to include in an application, where to send it, and the criteria by which it will be assessed. “In the light of Covid-19, researchers are also requested to outline whether their application is urgent, and their reasons for this assessment”.

Research projects seeking access to courts or tribunals, their non-judicial staff, or to case files, should apply separately to the HMCTS Data Access Panel for permission. Separate guidance applies.

Courts

Common Platform update

HMCTS hosted a webinar on 15 October to update criminal practitioners about the progress made in its Common Platform development.

The Common Platform is a sort of data conveyor belt that provides access to relevant case information for all parties involved in criminal cases, including the judiciary, solicitors and barristers, the Crown Prosecution Service and court staff. The system will make all information about a case, such as charges, evidence and results, accessible digitally to all parties. Access to different kinds of information is securely controlled to make sure that each participant only sees the material that is appropriate to them.

The system has been talked about since the early days of the legendary HMCTS Reform project, but now at last it is ready to test. Early adopter courts across England and Wales have been testing the system over the last month in Derby, and more courts will follow over the next three months, before a national rollout to all magistrates’ and Crown courts over the course of the next year.

For more information, see Common Platform system tested in criminal courts and for a recording of last week’s presentation and the slides, see HMCTS online event, 15 Oct 2020: Introducing the Common Platform

Coronavirus tracking

Recent publications

on various topics…

Statutory Instruments: the Unseen Constitutional Crisis,

by Tom de la Mare QC, via the Blackstone Chambers website. Discussing the alarming extent to which secondary legislation is being used to make new laws without proper parliamentary scrutiny. “This is and should be recognised to be the major constitutional crisis of our day (sitting alongside and as a product of Brexit and Covid),” he says, concluding that “Fundamental reform is long overdue”.

A bundle of laughs,

by Lucy Reed on her Pink Tape blog, discussing the problem of badly put-together court bundles and what can be done about it. Having identified a number of common problems and their causes, she concludes:

“I know we are all working hard and doing our best and drowning — but if the people responsible for bundles can develop their systems to produce consistently better bundles we will all be more efficient and happy, and it will oil the wheels of a system under huge pressure.”

[Reference to Sedley’s Law of Documents is explained in this tweet.]

The loneliness of the judiciary,

guest post by Helen Conway via the Stiff Upper Lip Blog, discussing some of the mental health pressures on the judiciary, prompted in part by the recent sad death of a judge in Queensland, Australia. The former judge explains:

“Loneliness is not the same as isolation. As a judge, I felt painfully lonely even as I was overwhelmed with the number of people I interacted with in a day. … It’s about not feeling connected, seen and truly heard.”

The problem is that judges have to guard their independence, especially from former colleagues in the profession, and it can take a while to build up an alternative support network.

We want to make sure women have a reason to remain at the Bar,

guest post on the Bar Council blog by Margherita Cornaglia, Ailsa McKeon and Luna Spada, co-founders of Themis, the Intersectional Women Barristers’ Alliance formed in April this year. The post explains the background and philosophy of Themis, and what it hopes to achieve.

“Intersectional feminism, and how that makes our experiences as women at the Bar both different and similar, provides the foundation for our outlook and our work. … We want to run activities that will enable us to achieve structural, systemic change.”

The shadow pandemic: violence against women during COVID-19,

by Isabel Santagostino Recavarren and Marina Elefante, via the World Bank Blogs site. Discusses the problem for women forced to stay at home in abusive environments during the coronavirus pandemic, and what countries around the world are doing to mitigate the impact of this “shadow pandemic”.

“Preliminary findings indicate that several countries have implemented a variety of measures to facilitate survivors of violence access to protection orders, the court system and services such as medical and psychological support, legal aid, hotlines, shelters and housing, and financial assistance.”

Guest blog: The expected benefits of the new Sentencing Code,

by Dominic Lewis and Alexandra Robson, members of the Bar Council’s Law Reform Committee, via the Bar Council blog. They discuss the Law Commission’s work in codifying sentencing procedure in order “to render the legislation more accurate, clearer to lawyers and judges, and more accessible to the layman”. But it will have an important additional benefit, namely:

“a reduction in the possibility of errors in the sentencing process; such errors being, at present, a regrettable consequence of the complexity and opaqueness of the current patchwork quilt of sentencing provisions.”

The cautionary tale of a failed legal career, part 1

by John Bolch, the first of an autobiographical series which appears to be loosely based on Hogarth’s satirical paintings in The Rake’s Progress. (Incidentally, one of my favourite operas, by Stravinsky.) John, a young lawyer, embarks on his career with trepidation and the wrong kind of exam results….

“It’s hard looking back on a failed career, knowing that it’s far too late to put things right. You only get one life, and you messed yours up. Still, at least my cautionary tale might be a useful lesson to others.”

At the time of writing, he’d got to part 4, which begins with him passing his law finals, so we assume there’s quite a bit more to come. Hogarth’s series had eight paintings, of course, so perhaps we can expect four more.

Dates and Deadlines

Legal Reporting Awards

Closing date: 12 November 2020

The Bar Council’s 29th Legal Reporting Awards competition is now open, with a new process to allow greater recognition of journalists that make the shortlist, before announcing the winners. Please find attached instructions on how to enter the competition.

The competition is open to print/online and broadcast journalists in recognition of the media’s role in promoting a greater understanding of the law to the public. The winning entries in each category will be awarded £1,000 in prize money.

Last year’s winners were BBC journalist Clive Coleman and the i paper’s Rob Hastings.

And finally…

tweet of the week

Snigdha Nag celebrates the feline fatness (or not) of lefty-trendy activist lawyers blah:

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.