Weekly Notes: legal news from ICLR, 22 March 2021

This week’s roundup includes a review of judicial review, financial services, foreign policy, data protection, and courts recovery.

Judicial review: has Cart reached the end of the road? (Photo by Randy Fath on Unsplash)

Administrative law

The Independent Review of Administrative Law (IRAL) has now issued its report and the response of the government has been published. The report, though long (195 pages — we have not read it all), acknowledges its limitations and omissions, as well as recalling earlier attempts to review the scope and procedure of judicial review. In recommending some change, it also urges caution, warning of the risk of unintended consequences of hasty constitutional tinkering. A few points appear to be noteworthy.

(1) The report highlights the enormous number and high proportion of JR cases involving immigration law and, with one exception, refrains from making specific proposals on the grounds that what is really needed — and has been considered by the Law Commission — is an overhaul of the overly complex and confusing Immigration Rules.

(2) The exception is in relation to cases that are known as “Cart” judicial reviews (covered in Chapter 3 of the report): this is a reference to the procedure whereby the Upper Tribunal’s refusal of leave to appeal from a lower tribunal could itself be judicially reviewed by the courts — as held by the Supreme Court in the case of R (Cart) v Upper Tribunal (Public Law Project intervening) [2011] UKSC 28; [2012] 1 AC 663. As the IRAL report puts it, “A bona fide attempt to make the Upper Tribunal the final court of appeal for certain procedural issues was defeated when the Supreme Court ruled that it was subject to judicial review.” The report goes on to observe that “Statistical information provided to us by the Ministry of Justice makes clear that applications to the Administrative Court for Cart JRs form the largest category of applications for judicial review to that court.”

(3) Hard cases, it is said, make bad law; and by the same token, it would appear “difficult” or notorious judicial review cases make bad justifications for reform of judicial review: “The Panel did not think it helpful to record our views on the relatively few judicial review cases that have attracted particular attention.”

With these and other caveats, the report considers a number of options for reform, most of which it rejects. The ones it thinks might be worth considering are:

  • Parliament could legislate to reverse particular court decisions if there were a strong case for doing so; in particular, it ought to intervene to reverse Cart (see above).
  • Parliament could oust or limit the jurisdiction of the courts in particular circumstances if there is sufficient justification for doing so. It would have to confront “hostility” from the courts, careful parliamentary scrutiny and rule of law arguments.
  • Parliament ought to provide (or the judges should develop) a remedy of suspension to alleviate the bluntness of a quashing order: this would enable courts to make a suspended quashing order —which would automatically take effect after a certain period of time, but only if certain specified conditions were not met. This would give Parliament time to reconsider and perhaps amend or repeal an impugned provision.
  • Abolishing the requirement of promptitude whereby most claims for judicial review must not only be brought within three months, but “promptly” as well.
  • Further improvements to the law on procedure may be sought through non-legislative means. The courts should be encouraged to do more to address the issue of standing in claims that come before them. Criteria should be developed and publicised for determining when the courts will hear from an intervener in a claim for judicial review; and the government should revisit the guidance it currently follows in determining how to discharge its duty of candour to the court hearing a claim for judicial review against it.

The report concludes with some observations urging respect for the independence of the judiciary and the proper separation of powers, while also urging Parliament to fulfil its proper role in the process of holding the executive to account. “We do, however, acknowledge that the excessive use of framework bills, where much is left to regulation, is much less reassuring.” While that might be most obviously true in the case of the Coronavirus Act 2020, there is plenty of other recent legislation, making extensive use of delegated powers, that might arouse concern over the lack of parliamentary scrutiny (see for example the massive Police, Crime, Sentencing and Courts Bill, discussed here only last week).

It was, said the report, “inevitable that the relationship between the judiciary, the executive and Parliament will from time to time give rise to tensions”. In other words, such tension is a sign that the system is working, not broken.

“Our view is that the government and Parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action. Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.”

The government response sets out its own proposals for reform, which in some ways appear to go further than those proposed by the IRAL report (such as legislation that would explicitly oust the jurisdiction of the court in some instances), and it has duly launched its own public consultation. The IRAL report was itself informed by an earlier consultation. Now all the same people and bodies will feel prompted to respond yet again.

The Lord Chancellor presented this with some slightly creepy spin as a win-win for the judges and legal system he has sworn to protect, but some commentators were not convinced.

Further reading:

Financial Services

The Department for Business Energy and Industrial Strategy (BEIS) has released a White Paper entitled “Restoring trust in audit and corporate governance” setting out its proposals to strengthen the UK’s framework for major companies and the way they are audited. According to its foreword:

“This document outlines a set of proposals to hold directors of the largest companies to account, to establish clearer responsibilities on detection and prevention of fraud, to empower shareholders and to increase choice and quality in the audit market.”

The reforms aim to address the fact that

“stakeholder and wider public trust in the credibility of directors’ reporting and the statutory audit has been shaken by a succession of sudden and major corporate collapses which have caused serious economic and social damage, including the insolvencies of BHS in 2016 and of Carillion in 2018. Alongside this, the audit regulator has in recent years found up to a third of audits carried out by the seven largest audit firms to be in need of improvement or significant improvement. There are also more long-standing concerns about a lack of competition and resilience in the statutory audit market covering the UK’s largest companies, and a perceived failure of the audit product to meet the growing expectations of its users.”

The paper recommends, among other things, giving stronger powers to the new regulator, Audit, Reporting and Governance Authority (ARGA) and enforcing a clearer operational division in large accountancy firms between auditing and consulting roles. The proposals in the white paper are now the subject of a public consultation opened on 18 March, which closes on 8 July 2021.

See also: RPC Perspectives, BEIS issues White Paper: D&O perspective

Foreign policy

The government published Global Britain in a competitive age, an Integrated Review of Security, Defence, Development and Foreign Policy, described as “a comprehensive articulation of the UK’s national security and international policy”. It sets out a policy which has four overarching objectives:

“1. Sustaining strategic advantage through science and technology, incorporating it as an integral element of national security and international policy to firmly establish the UK as a global S&T and responsible cyber power. This will be essential in gaining economic, political and security advantages.

2. Shaping the open international order of the future, working with partners to reinvigorate the international institutions, laws and norms that enable open societies and economies such as the UK to flourish. This will help our citizens and others around the world realise the full benefits of democracy, free trade and international cooperation — not least in the future frontiers of cyberspace and space.

3. Strengthening security and defence at home and overseas, working with allies and partners to help us to maximise the benefits of openness and protect our people, in the physical world and online, against a range of growing threats. These include state threats, radicalisation and terrorism, serious and organised crime, and weapons proliferation.

4. Building resilience at home and overseas, improving our ability to anticipate, prevent, prepare for and respond to risks ranging from extreme weather to cyber-attacks. This will also involve tackling risks at source — in particular climate change and biodiversity loss.”

Commenting on it via the NIPC Brexit blog, Jane Lambert writes that “The review reveals the direction of travel the first time since the referendum thereby allowing businesses and individuals to plan for the medium term.” However, the government appears to have a somewhat over-optimistic view of Britain’s place in a world of rapid economic and technical development:

“Although the UK economy may well bounce back once the COVID-19 restrictions are lifted, there is no reason to suppose it will grow consistently at historically unprecedented rates over the next 9 years. Even on the most optimistic forecasts, it will be overtaken by countries that can take advantage of economies of scale.”

Moreover the review barely mentions the likely impact on the world’s economy of the Belt and Road initiative, China’s massive road, rail, port and pipeline building project, and in other ways probably understates the consequences of the rise of China, says Lambert. “If there is to be a new international order, Washington’s influence will be diminished and that of middle-ranking powers such as the United Kingdom will barely register at all.”

Data protection

Last month the government published its Digital Identity and Attributes Trust Framework, following last year’s Digital Identity Call for Evidence. It aims to create “a clear framework of rules which show what ‘good’ digital identities look like”, establish a “governance and oversight function to own these rules, keep them up to date, and make sure they are followed” and to develop “proposals to remove legislative and regulatory blockers to the use of secure digital identities and establish safeguards for citizens”.

Introducing the framework, Matt Warman MP, Minister for Digital Infrastructure, said:

“Successfully combating fraud and cyber crime can only be achieved by government working with the private sector. This framework, which will need to be underpinned by further new robust legislative and regulatory mechanisms before it can be finalised, can help to strengthen how we work together to restrict opportunities for criminals and protect people.”

He made clear that this is just a start, and they expect to build on feedback and collaboration from the private sector and public interest bodies.

The Open Rights Group has responded, commending the government for some of its initiatives, and identifying issues which they say will require further discussion and clarification. “A more considered approach on how to build a system that creates user trust, and makes accountability accessible to the many, is key for this framework”, they say.

“Trust is a two-way street, and while the government’s digital identity trust framework definitely makes steps in the right direction, those efforts need to be accompanied by a commitment to transparency and integrity. We look forward to continuing to engage with government on these difficult issues.”

See: Open Rights Group, Trust is a Two-Way Street: the UK’s digital identity framework

Courts

The Lord Chief Justice, Lord Burnett of Maldon issued a message on courts recovery last week signalling a gradual but definite return to the status quo ante, or the old normal.

“Over the next few weeks and months as the number of people who have been vaccinated against COVID increases and restrictions begin to ease across England and Wales, it will be possible and desirable to increase attendance in person where it is safe and in the interests of justice. This will be important to maximise the throughput of work.”

Not everyone is in favour, to judge from ensuing conversations on legal Twitter. Many lawyers, over the past year, have adapted well to remote hearings, and enjoyed the ability to participate in a short mention or case management hearing without the need to spend uneconomic amounts on travel and accommodation. Necessity has proved the mother of invention, or at any rate innovation; and in many cases an investment in second screens and extra devices has paid off as working from home and hearing from home has become the norm. Are we going to throw it all away and go back to the leaking roofs, non-working lifts and long queues for security of the real life courts estate?

Yes, say some judges, for whom remote hearing is not just a question of logging in for an hour or two here and there, but is a matter of back to back remote sessions all day every day and for whom a return to the court room, with support staff on hand, and litigants turning up and taking it all as seriously as the circumstances demand, might be a welcome return to normality.

There is also the interest of litigants, witnesses and in some cases victims to consider. Is it better for them to attend remotely, or to turn up and have their “day in court” in an actual court? We have to think of the ones without superfast broadband and several screened devices available to multi-task their hearings like the professionals.

These are extreme positions, perhaps, but there has been plenty of evidence over the last year of ways in which remote hearings have been both a welcome convenience and a woeful obstacle to justice. By and large, it is the senior courts and the higher value business that seem to flourish in the remote environment, and the more junior courts and more retail or publicly funded kind of work that has fared less well remotely, particularly crime, family and administrative law cases.

The obvious solution would be to build on the lessons we’ve learned, invest in solutions that work best for the type of hearing and the people involved, and not simply go back to the old ways for the sake of it. Otherwise, as Chris Dale points out in a recent post on his eDisclosure Information Project blog, we will “take a step backwards which wastes a year of hard-won experience, to say nothing of substantial investment in equipment and training”.

In Remote hearings — slipping back into the old normal after all that investment and experience Dale concludes with a plea for a more progressive approach:

“The message should be that we must identify, both in principle and case by case, whether a matter is or is not appropriate for remote hearing. Let’s clear the courts of those which do not need live attendance to make space (both physically and in the lists) for those which do. Let’s free up the time of those who should not have to travel so that it becomes possible, and not just in a barrister’s clerk’s dreams, to attend courts in Newport, Wales and Newport, Isle of Wight on the same day.

Whatever we do, let’s not just subside unthinkingly into the old normal.”

See also: Emma Spruce, Legal Week: Should court hearings continue online after lockdown

Meanwhile HM Courts and Tribunals Service (HMCTS) continues to increase the number of physical courts for those cases that require them, and to make them as safe as possible. According to its latest update:

  • Fluid Resistant Surgical Masks (FRSMs) are to be supplied to professional users providing legal consultation in custody suites. This is in addition to the existing safety measures already in place. FRSMs will be issued by staff on entry to court custody suites. Our guidance outlines the use of FRSMs and existing safety measures. Professional users should also familiarise themselves with this guidance on how to wear and remove face coverings. How to wear and remove your face covering or mask (PDF, 166KB, 1 page)
  • A pilot has been launched to trial the use of home testing kits among court users. This pilot will inform HMCTS’ future plans for workplace testing and follows the recent launch of two on-site rapid testing pilots at Manchester Civil Justice Centre and Southwark Crown Court.
  • Both pilots have been extended to last until 23 April 2021. From this week, and for the next five weeks, the home testing kits will be available to collect on-site from Birmingham Crown Court, Croydon Combined Court, Liverpool Combined Court QEII, Snaresbrook Crown Court and Wolverhampton Combined Court.
  • The kits include lateral flow tests, and will be offered to all professional court users, legal professionals, judiciary, contractors, jurors, witness services and staff who attend scheduled hearings at the pilot sites. Each kit comprises either three or seven tests.

Other recent publications

Post by Barbara Rich on Medium discussing issues of transparency, regulation and governance relating to the legal crowdfunding and the call for donations to charitable causes arising out of a proposal by a group of women calling themselves Reclaim These Streets to organise a vigil in memory of the late Sarah Everard.

Reposting on Inforrm’s Blog of an article in The Conversation by Wendy H. Wong and Nicholas Weller on the Facebook Oversight Board and the increasing dependence on corporate governance of human rights where national governments and international organisations have failed adequately to regulate.

Press release by Privacy International explaining concerns over the provisions in the new Police, Crime, Sentencing and Courts Bill (PCSC) [discussed here last week: Weekly Notes, 15 March 2021] as to when, if and how the police and other governmental authorities can extract data from personal phones and other electronic devices.

Blog post by Nick Wallis on the latest appeal of former sub-postmasters against their convictions for false accounting in the wake of the Post Office Horizon IT system scandal. (If you don’t know the background, start here on his website.)

New podcast in which family barristers Malvika Jaganmohan and Maddie Whelan have a fortnightly chit-chat about recent case law, book and podcast recommendations, and general legal fluff. Available on Spotify.

YouTube video family law explainer with barrister presenter Daniel Barnett and family barrister Lucy Reed.

Post on the UK Human Rights Blog by Anurag Deb discussing the fraught history of abortion reform in Northern Ireland, and the obstacles placed in its way by the complicated constitutional arrangements put in place under devolution. Anticipated abortion reforms in Northern Ireland have failed to materialise after two years and two statutory instruments.

Podcast presented by Sally Penni of Kenworthy’s Chambers Manchester and founder and chair of Women in the Law UK, in which human rights barrister Adam Wagner “shares his insights on how to become a trusted source” and . “discusses his take on diversity on the bar; the progress so far and the work still to be done.”

BBC Radio 3 play depicting the life of Olaudah Equiano and the abolitionist movement in London in the 1780s and the notorious case of The Zong, in which Lord Mansfield, Lord Chief Justice ordered the retrial of an insurance claim by shipowners for compensation for slaves thrown overboard and drowned, allegedly on the grounds of necessity, after the insurers raised a triable defence of fraud. We’ll be publishing a full review in due course. Meanwhile, there is this, relating to the same case: Belle: life, love and the law in an age of slavery and prejudice

And finally…

You may think he doth protest too much, and too noisily; but the police seem keen to come out in his support: Anti-Brexiter Steve Bray relishing the irony.

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.

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.