Weekly Notes: legal news from ICLR, 23 March 2020

This week’s roundup of legal news and commentary includes a lot about Covid-19 and its effect on law and the administration of justice, with updates on practice and procedure. But there have been other stories, including the lessons learned (or not learned) about Windrush.

13 min readMar 24, 2020

Immigration

Windrush report

The Home Secretary, Priti Patel MP, has been under some pressure in recent weeks, over allegations of a bullying manner, but on 19 March she came to the House of Commons and made a statement of representative humility in response to the Windrush Lessons Learned Review. She said:

“I have personally been deeply moved by reading this report. Given the national significance of this issue, I have published the review immediately. I thank Wendy Williams and her team for the important work they have undertaken. …
As this review makes clear, some members of the Windrush generation suffered terrible injustices, spurred by institutional failings, spanning successive Governments over several decades.
Lives were ruined and families were torn apart. Now, an independent review has suggested that the Home Office’s ‘institutional ignorance and thoughtlessness towards the issue of race and the history of the Windrush generation’ contributed to it. This is simply unacceptable.”

It is indeed unacceptable. But it has been accepted. And I think we can all accept, that it — or something like it — will recur. Because what the report reveals is the sort of institutional racism that marred the police force investigated by Lord Macpherson in the Stephen Lawrence inquiry; and the hypocrisy of those who either played down or sought to excuse the “hostile environment” policy which lay behind it.

Even the title of the report can be understood as a bitter rebuke. For is it not the case, when any public authority declares after some catastrophic failing that it has “learned lessons”, that any sane and rational person understands this to indicate an attitude of somnolent complacency and brow-mopping relief that, after all, nothing serious need be done to change anything for the better? Whether anything will indeed change for the better at the Home Office remains to be seen. But it seems doubtful.

The problem with institutional attitudes, like racism, is not that they are evil; it is that they are institutional. It’s a bit like trying to find the “controlling mind” to attach a charge of corporate manslaughter or corruption. You can’t point to a particular individual. The problem is systemic. It’s in the water supply. It’s in the wiring, the ventilation, the post room and the back stairs. It’s in the very fabric of the buildings they all work in. Pious homilies in the House of Commons are not going to solve the problem.

The Report’s author, Wendy Williams says that “what happened to those affected by the Windrush scandal was foreseeable and avoidable”. Moreover, it goes back probably further than one might expect — certainly a lot further back than the ascendancy of Theresa May as Home Secretary and the despicable “Go Home vans” of that time. The origins of the problem, Williams says, can be

“traced back through successive rounds of policy and legislation about immigration and nationality from the 1960s onwards, the aim of which was to restrict the eligibility of certain groups to live in the UK.”

They go back, in fact, to the time of Enoch Powell and his infamous “Rivers of Blood” speech in 1968, and the 1971 Immigration Act which came soon after. But as

“successive governments wanted to demonstrate that they were being tough on immigration by tightening immigration control and passing laws creating, and then expanding the hostile environment, this was done with a complete disregard for the Windrush generation.”

That ‘hostile environment’ was

“a set of measures that evolved under the Labour, Coalition and Conservative Governments. They aimed to make life as difficult as possible for people with no legal status in the UK to encourage them to leave.”

The report highlights how “warning signs … were simply not heeded” and there was “a culture of disbelief and carelessness”. Moreover,

“While I am unable to make a definitive finding of institutional racism within the department, I have serious concerns that these failings demonstrate an institutional ignorance and thoughtlessness towards the issue of race and the history of the Windrush generation within the department, which are consistent with some elements of the definition of institutional racism.”

Williams concludes that the Home Office “must change its culture” if it is not to repeat its mistakes — if indeed it is to demonstrate that it has “learned any lessons” at all. About which one is bound to have serious doubts. Only last week, we reported on the response of the Metropolitan Police to the Henriques Report on its failings in respect of Operation Midland. Had any “lessons been learned”? The report found its recommendations had been ignored and the Henriques report itself had simply been buried. Or to take another example, the Lakanal House fire, in which a tower block blaze claimed the life of six inhabitants. A public inquiry was called for but none was held. Eight years later, a massive fire at Grenfell Tower claimed the lives of another 72 people. Had any “lessons been learned”? Not by the London Fire Brigade, according to the Phase 1 report by chairman Sir Martin Moore-Bick, who said (chap 29):

“One of the matters to be investigated during Phase 2 of the Inquiry is why, at least so far as the control room is concerned, the fire at Lakanal House did not lead to changes in practice and why the same mistakes were repeated in relation to the fire at Grenfell Tower.”

No doubt “lessons will be learned” from the government’s current management of the response to Covid-19. We shall see. (Or not, as the case may be.)

Inquiries

Cover up of evidence in undercover inquiry

The Independent Office for Police Conduct (IOPC) has found that “Materials that may have been relevant to undercover policing inquiry were shredded by Metropolitan Police personnel”

“We also found that a former MPS officer would have had a case to answer for gross misconduct had they still been serving, for failure to take action after being informed that a unit within the MPS may have destroyed material relevant to the UCPI.”

According to the Guardian (Undercover policing inquiry: secretive Met unit shredded files), the inquiry was

“set up in March 2014 by Theresa May as home secretary after a cascade of revelations about undercover officers. It was revealed that they had spied on the family of the murdered teenager Stephen Lawrence, deceived women into long-term sexual relationships and stolen the identities of dead children.”

Sarah Green, the IOPC regional director, commented:

“It is extremely unfortunate that a number of former police managers have refused to engage with this investigation to provide evidence about what steps, if any, were taken to ensure the documents were preserved for the undercover policing inquiry.”

Meanwhile, the UCPI itself has had to postpone further hearings in view of the Covid-19 pandemic. Chair of the Inquiry, Sir John Mitting, said on 17 March:

“The majority of proposed witnesses from whom the Inquiry would expect to hear at that time are in the group identified as being subject to increased risk from infection, and the necessary preparation for and attendance at a hearing venue (even were evidence to be provided remotely) would expose them to an unacceptable threat of infection.”

Parliament

Coronavirus Bill

The Coronavirus Bill 2019–21 was given its First Reading on Thursday 19 March 2020 and is due to have its second reading today, 23 March. It is a fairly massive piece of legislation, designed to make provision for all the various emergency powers and arrangements needed to cope with the pandemic. There is a House of Commons Library briefing.

A section of the Bill is headed “Courts and tribunals: use of video and audio technology” and makes provision for hearings to be conducted in ways that preserve so far as possible the social distancing mandated to avoid contagion. A separate download in the House of Commons Library briefing deals with this. (See also the various practice directions about this listed below.) The intention is clearly to maintain open justice even though the hearings may be conducted remotely, but although it envisages journalists and members of the public being able to listen in to or watch remote hearings, there is a lack of provision for listing and other resources that might help them find out in advance what cases are being heard and how to access the hearings. The pace of events has probably made this difficult to include in advance, but it should be considered while the legislation is under scrutiny, however rapid that process may have to be.

ICLR news

Business as usual

ICLR will continue to write and publish law reports of all the important judgments of the senior courts, if and to the extent that the courts continue to give them, during the disruption consequent upon the current pandemic. Although all our reporters and other staff will be working from home, we will continue to deal with inquiries by email, phone and post, though please bear with us as this may take longer than usual.

However, we are temporarily unable to send out printed law reports to our overseas subscribers by air freight. This means the reports will have to be dispatched by sea instead, and will regrettably take rather longer to reach their destination. We apologise for any inconvenience this may cause. However, the content will of course be available online as soon as it has been published.

User tip: Links to external content

We have adopted a simplified schema on our law research platform ICLR.3 in relation to links to content such as judgments, law reports and commentary both on the case index cards and within content itself.

Where the link to a judgment (via its neutral citation) or case report (via its publication reference) is coloured green, that means the content is on ICLR.3 itself. Clicking on it will open that document, but you can still view the index card by clicking on the plus sign (+) next to the main case name across the top, and the index card view will expand. To collapse again, click on the minus sign (-) next to the case name. (To return to the index card itself as a document, click on the main case name.)

Where the link to a judgment (via its neutral citation) or other content (such as case comments) is blue, that means the content is external. Clicking on it will open that document in a new tab or window. The link from a neutral citation will usually be to the content on BAILII or on the Judiciary website. For European content, it may link from the case reference number to the Curia website (for cases in the Court of Justice of the European Union) or to HUDOC (for cases in the European Court of Human Rights). There may be links to other websites, particularly for cases from other jurisdictions, or for commentary (eg on blogs such as the UK Supreme Court Blog or the UK Human Rights Blog). We are adding to our commentary all the time. Some of it is behind a paywall or requires prior registration, but most of it is free to view. An increasing number of chambers websites are adding valuable commentary which we feel it is useful to index and link to.

Coronavirus update

This week’s Covid-19 update deals first with arrangements made in various different courts and tribunals for remote etc hearings, and then with more general commentary as to the effect of the virus and social distancing in particular areas of law. The practice directions and guidance will also be published via ICLR online (free to view) and some will appear in the printed reports as well.

Courts and tribunals generally

Coronavirus (COVID-19) advice and guidance — links to a number of separate publications of guidance and advice from the Judiciary website.

Coronavirus (COVID-19): courts and tribunals planning and preparation

This page from HMCTS provides advice and guidance for all court and tribunal users during the coronavirus (COVID-19) outbreak and will be updated when new advice is available. The basic line continues to be:

As long as you, or the people who have to come with you, do not have confirmed or possible coronavirus (COVID-19) infection or do not need to self-isolate in line with NHS advice, you should continue to attend courts and tribunals as planned, unless informed otherwise.

This may change.

CrimeLine has a page of Coronavirus (COVID-19): Guidance which is being updated daily.

Open justice

Natalie Byrom of the Legal Education Foundation has provided a Briefing: Coronavirus Bill, Courts and the Rule of Law which “discusses the safeguards that must be put in place to ensure that access to justice and open justice are maintained under the rule of law”.

Update, 24 March 2020: Judith Townend has considered the practical implications for open justice on the Open Info and Ideas blog, in Covid-19, the UK’s Coronavirus Bill and emergency ‘remote’ court hearings: what does it mean for open justice?

Crime: jury trials

There has been a lot of commentary (on Twitter, for example) as well as specific announcements (eg from the Bar Council) urging HMCTS to stop jury trials, which cannot be managed remotely and by their very nature involve close physical proximity within a particular space. Till today, the official line announced by the Lord Chief Justice (on 17 March 2020) was that current jury trials and any new jury trials of three days expected duration or less would continue to take place but trials of longer expected duration would be postponed. Today’s message from the Lord Chief Justice (23 March 2020) appears to have changed that position:

I have decided that we need to pause jury trials for a short time to enable appropriate precautions to be put in place.

However, “Efforts to bring existing jury trials to a conclusion should continue”.

Civil courts

In the civil courts, meanwhile,

“Whilst most court buildings currently remain open, the objective is to undertake as many hearings as possible remotely so as to minimise the risk of transmission of Covid-19.”

Hence the Master of the Rolls, The President of the Queen’s Bench Division, The Chancellor of the High Court, and The Senior Presiding Judge have jointly issued Civil Court guidance on how to conduct remote hearings, explaining that:

“The current pandemic necessitates the use of remote hearings wherever possible. This Protocol applies to hearings of all kinds, including trials, applications and those in which litigants in person are involved in the County Court, High Court and Court of Appeal (Civil Division), including the Business and Property Courts. It should be applied flexibly.”

See also: Civil Litigation Brief, Telephone applications: a beginner’s guide

Family courts

Sir Andrew McFarlane, President of the Family Division and Head of Family Justice has issued COVID 19: National Guidance for the Family Court

MacDonald J has issued guidance on The Remote Access Family Court

Transparency Project has rounded up COVID-19 and family courts: Links in one place to new arrangements

Court of Protection

Hayden J, Vice President of the Court of Protection has issued Court of Protection: Guidance (COVID-19)

Hayden J has also issued guidance to the judiciary on Visits to P by Judges and Legal Advisors.

See also: Law Society Gazette, First all-Skype trial tests crisis working at CoP

First-tier Tribunals and Upper Tribunal

Sir Ernest Ryder, Senior President of Tribunals has issued:

Employment tribunals

Coronavirus (COVID-19): Message from Presidents of the Employment Tribunals in England & Wales and in Scotland directing that

“all in-person hearings (hearings where the parties are expected to be in attendance at a tribunal hearing centre) will be converted to a case management hearing by telephone or other electronic means which will take place (unless parties are advised otherwise) on the first day allocated for the hearing”.

See also: Making virtual hearings in the Employment Tribunal work: A “proof of concept” video and blog by Cloisters Chambers provides a Simulated Virtual Employment Tribunal Open Preliminary Hearing using Microsoft Teams.

Public inquiries

A statement from the chair of the Grenfell Tower inquiry, Sir Martin Moore-Bick, issued on 16 March 2020, explains that

the Panel has decided that the Inquiry should hold no further hearings for the time being. To do so, even on the basis of limited attendance, would be to expose those whose presence is essential for that purpose, not to mention those whom we wish to call as witnesses, to an unacceptable risk of infection.

See COVID 19: Suspension of Inquiry Hearings.

Legal professions

BSB: COVID –19 : Statement by the Bar Standards Board

Lawyer Watch: The SRA, The Qualifying Law Degree, and COVID-19: Thoughts on Law Schools and Assessment in a Time of Crisis

Employment law

UK Labour Law blog: Legislating in Times of Crisis: The Coronavirus Job Retention Scheme

Local Government Lawyer: ACAS issues guidance on home-working for employers and employees

Information law

Panopticon blog: Coronavirus and Information Law

Media law

Inforrm’s blog:

IPSO Blog: Reporting of coronavirus COVID-19

Crime

The Secret Barrister:

Each Other: Coronavirus: What Happens To Prisoners?

Ministry of Justice: Coronavirus (COVID-19) and prisons

Parole board: Should an oral hearing be impacted by the coronavirus?

Human rights

The British Institute of Human Rights: The Corona Virus Bill and human rights

Bingham Centre: Does law fall silent in the war against Covid-19?

Commercial law

11KBW: Thoughts on financial regulation in the time of Covid-19

Kings Chambers: The Law of Frustration: its relevance to lawyers and litigators

Housing law

Nearly Legal:

Legal practice

In a thread on Twitter, Catherine Baksi has been collecting examples of how Covid-19 has been affecting the courts, lawyers and justice system:

See also Jake Richards, in Prospect: How will the justice system withstand the coronavirus pandemic?

And finally…

Tweet of the week

Now that we’re all doing Skye for Business or Zoom from home:

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.