Weekly Notes: legal news from ICLR, 27 July 2020

As the summer vacation beckons, this term’s final roundup of legal news and commentary includes national (in)security, deprivation of citizenship, a semi-centenary of law centres, and what’s been happening in the courts. But first, a message from our CEO.

ICLR news

“We are approaching the end of what must be the strangest and most challenging term ever seen at ICLR. But as an organisation we have risen to the challenge and have continued to operate as close to normal as possible. Judging by the many messages of support from the judiciary, our customers, and Council Members at this year’s AGM, our efforts have been much appreciated. I thank you again for all your hard work during this difficult time.” (Message from Kevin Laws CEO to ICLR staff.)

We would echo that sentiment and express our thanks to all those in the profession that we serve, as well as the wider public for whose benefit, in our support for legal education and the administration of justice, we exist.

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National security

The report of the Intelligence and Security Committee on Russia (HC 632) was finally presented to Parliament, published on 21 July 2020, and debated by the House of Commons on 22 July.

You can read the report (via the ISC’s own webpage), and the Government’s response.

This Report is the result of an Inquiry into Russian influence and interference in the affairs of this country in recent years, conducted by the previous Committee chaired by Dominic Grieve QC MP, which sat from November 2017 to November 2019. The current committee is chaired by Julian Lewis MP, following an election in which he beat the government’s preferred candidate, former Lord Chancellor Chris Grayling MP. (The Prime Minister’s somewhat petulant and arguably self-incriminating response was to remove the Conservative party whip from Mr Lewis.)

Peter Jukes in Byline Times sums up the import of the report:

“With much of the detail buried in secret annexes — partly to protect tradecraft and sources, but also to protect sensitivities around the US President Donald Trump (Putin’s biggest asset is not named once in this report) — the overall picture is one of the UK being penetrated by Russian hackers and a “muddy nexus” of criminal gangs and spies, its citizens being killed by Russian nuclear weapons and nerve agents, while the country’s security services were asleep at the wheel and its political classes entranced by a vortex of Russian dirty money and billionaire oligarchs.”

The use of nerve agents is a reference to the case of Sergei and Yulia Skripal in Salisbury in March 2018 (see Weekly Notes, 19 March 2018) whose negligent poisoning by reckless Russian secret agents indirectly led to the tragic accidental death of Dawn Sturgess. Both the original Skripal case and the Sturgess case have reached the courts. In Secretary of State for the Home Department v Skripal [2018] EWCOP 6 Mr Justice Williams had to consider whether to allow an NHS Trust to take a blood sample from the Skripals, who were under heavy sedation and lacked capacity to consent, for the Organisation for the Prohibition of Chemical Weapons (OPCW) to test. The latest decision concerns the decision of a coroner to limit the scope of the inquest into Dawn Sturgess’s death, which the Divisional Court held to be erroneous in judicial review proceedings brought by and on behalf of her daughter: R (GS) v Senior Coroner for Wiltshire and Swindon [2020] EWHC 2007 (Admin); [2020] WLR(D) 441.

However the ISC report is significant for lawyers in less complimentary ways. It says Lawyers have become “de facto agents of Russian state” according to Legal Futures, quoting parts of the report:

“Russian influence in the UK is the new normal. Successive governments have welcomed the oligarchs and their money with open arms, providing them with a means of recycling illicit finance through the London ‘laundromat’, and connections at the highest levels with access to UK companies and political figures. … This has led to a growth industry of ‘enablers’ including lawyers, accountants, and estate agents who are — wittingly or unwittingly — de facto agents of the Russian state.”

“The UK’s rule of law and judicial system were also seen as a draw.”

Immigration

We reported in Weekly Notes 18 February 2019 about the decision of the then Home Secretary Sajid Javid to deprive Shamima Begum, the so-called “Isis bride” found in a refugee camp in Syria, of her British citizenship. Last week the Court of Appeal ordered that she be granted leave to enter the UK so that she can participate in her deprivation of citizenship appeal.

Advance news of the court’s decision seems to have been obtained by one newspaper by sheer clairvoyance or the use of a time machine — unless (in contempt of court) it was leaked? Legal Cheek later reported how The Sun deletes story revealing result of Shamima Begum case before judgment officially came out

By its decision the court also ordered the Special Immigration Appeals Commission (SIAC) to reconsider its decision on whether the decision to deprive her of British citizenship was compliant with human rights law: see Free Movement, This is what the Court of Appeal decided about Shamima Begum — and what happens next

There is a detailed explainer of the judgment by David Allen Green in a video published by the Financial Times.

Needless to say, the usual stout defenders of traditional British values have been eager to complain of what they see as the courts’ interference with executive action, and the Prime Minister has called the decision “odd and peverse” and vowed to review legal aid eligibility rules. Johnson is said to have told The Sunday Telegraph:

“It seems to me to be at least odd and perverse that somebody can be entitled to legal aid when they are not only outside the country, but have had their citizenship deprived for the protection of national security.”

However, a pledge to review the scope and funding of judicial review was already in the Conservative party manifesto before the election, so it seems this case has simply prompted further official discomfort over the idea that the government should be accountable and fair trials should be properly funded. By way of a reminder, The Secret Barrister reposted an earlier blog: Shamima Begum may not deserve your sympathy, but she is entitled to legal aid

Courts

Plans to clear the backlog of criminal trials by running trials out of hours have been met by a wave of opposition from barristers and solicitors. Large numbers of lawyers (over a thousand at the last count) have signed a petition in the form of an open letter protesting about the government’s years of neglect and underfunding of the profession and refusing to cooperate with its plans:

“Now we are told it is “all hands to the pump”. We are expected to attend hearings during our evenings and weekends when we need to spend time with our families, and to recuperate from exhausting days and nights in courts and police stations, in order to fix a disaster which is entirely of the Government’s own making. We are told to do so for no extra funds, without our representative bodies having been consulted in advance.

We will not do it. Our goodwill has run dry. The undersigned will not attend a single court listing outside of regular court hours.”

As well as holding trials out of hours, the Ministry of Justice has begun to adapt other buildings for use as “Nightingale” (sometimes known as “Blackstone”) courts, but the Lord Chancellor Robert Buckland has abandoned plans to have judges sit alone or with two magistrates instead of a jury, though he has not ruled out reducing the size of the jury to nine or even seven (from the usual 12).

The first batch of temporary courts announced by the Ministry of Justice included Middlesbrough Town Hall, the Knights’ Chamber within the grounds of Peterborough Cathedral, and the Ministry of Justice’s headquarters in London. As to the latter, there was some chaffing on social media at the news that the relevant space, up on the tenth floor, had been occupied by 75 press officers. This was denied by the MOJ who informed Legal Cheek that the number was actually only 25. This still seems rather a lot.

We wonder which of them it was who called Buzzfeed reporter Emily Dugan a “bitch” and “crazy” in internal communications released under a data request by the journalist (who won a Paul Foot award for her coverage of legal aid cuts and has recently moved to a top job at the Sunday Times): see Weekly Notes, 14 January 2019. Perhaps requisitioning their desks for a Nightingale (Blackstone) court would be good news for everyone.

For a taste of what the 25 press officers actually do, read the MOJ’s vapid announcement about Nightingale Courts where it says “The move forms part of government plans to ensure courts recover from the coronavirus pandemic as soon as possible and to avoid any delays getting criminals behind bars” (emphasis added). If the government was ever serious about getting prisoners behind bars they would not have slashed prosecutor, police and prison staff numbers, cut legal aid or judicial sitting days or sold off all the courts. Austerity policies are not the fault of the messenger, of course, but you might think austerity begins at home, and reduce the slack there before cutting services that matter.

Another of the MOJ press officers’ announcements concerns the rollout of the long-vaunted Common Platform, a unified file storage and data transfer system designed to provide joined up case management throughout the criminal justice system. The CP has been part of HMCTS’s £1bn-plus Reform programme since it began in 2016 but it has taken four years to get it to the stage where it can be tested.

“Early adopter courts across England and Wales will test the system before the subsequent rollout to all criminal courts over 12 months. This will begin in Derby and then roll out incrementally to the others in the series.”

One of the things it integrates with is the Common Video Platform (CVP) which has, belatedly, come into its own during the pandemic as more and more court hearings are conducted remotely. Till now the courts have relied on alternative video conferencing platforms such as the approved Skype for Business and MS Teams, and (unapproved) Zoom, to conduct virtual hearings under lockdown.

In The new normal: what to expect in a socially distanced immigration hearing (Free Movement) Hoa Dieu of 30 Park Place Chambers explains what is happening at Newport immigration hearing centre, as an example of how these things are done generally now that immigration tribunals are reopening.

Law Centres

The first Law Centre in England celebrated its fiftieth anniversary on 17 July. North Kensington Law Centre was founded on that day in 1970, a pioneering endeavour which inspired other communities to set up their own law centres’ across England and Wales. To mark the anniversary the law centre has set up its Our Stories page. Michael Zander QC, one of the founders, is among those contributing their recollections:

“I was present at the opening 50 years ago, wearing my hat as Legal Correspondent of The Guardian. In my piece on 18 July 1970, I wrote of the overwhelming support for the new venture. There were messages of support from the Lord Hailsham, the Lord Chancellor, and from Sir Leslie Scarman, Chairman of the Law Commission. The 50 or so people who crowded into the converted butcher’s shop included Sir Elwyn Jones, former Attorney General and future Lord Chancellor and significantly, the President of the Law Society, Mr Godfrey Morley.”

Another is Lord Anthony Gifford QC, who recalls how he and Peter Kandler, a young solicitor, used to give free legal advice as “poor men’s lawyers” and decided to form a committee of local residents and activists to plan and operate a Law Centre for North Ken. “In 1970 the Centre started its work in a rented butcher’s shop in Golborne Road, with Peter as solicitor and James Saunders as articled clerk.” It continues its work to this day.

“The office, which sits in the shadow of Grenfell Tower in the diverse area of North Kensington, is like the A&E of law; open to anyone, offering free and low-cost advice to people in an emergency. During the virus, like so many frontline services have had to offer legal advice through telephone helplines, receiving an unprecedented number of calls in three months. A surge in demand is anticipated when they re-open their doors for face-to-face clients in August.”

Other recent news and commentary

Parole Board publishes Annual Report & Accounts 2019/2020. According to the announcement:

“Statistics contained in the annual report show The Board conducted more parole hearings than ever before in 2019/2020 with a total of 29,327 hearings. This included a record high 8,264 face to face oral hearings as well as 21, 063 paper hearings.

While The Board’s caseload increases, it continues to deliver independent, impartial and quality decisions by ensuring they are fair, respect the rights of the prisoner but always put public safety first. The Parole Board operates like a court by making difficult, impartial decisions by considering evidence without fear or favour.”

The Information Commissioner’s Office (ICO) has published its annual report for 2019–20, covering what the Information Commissioner has called a “transformative period” for privacy and data protection and broader information rights, according to Inforrm’s blog.

The Spotlight Review on domestic abuse — where does it fit in with other court reforms? Julie Doughty on the Transparency Project blog considers how the Harm Report recently produced by the ‘spotlight panel’ appointed by the Ministry of Justice fits in with the wider reforms discussed by the President’s Private Law Working Group (the PrLWG) in its two reports.

Practice Direction 55C — Temporary provision in relation to possession proceedings has now been published. Giles Peaker on Nearly Legal explains what it means in Reactivation! The new practice direction was made pursuant to The Civil Procedure (Amendment №4) (Coronavirus) Rules 2020 which Peaker discussed in an earlier post, Mystery directions.

The Financial Conduct Authority has taken Europe’s largest insurers to court to establish whether they should pay out pandemic-related “business interruption” and other claims, reports Insurance Journal. At issue is whether government lockdown rules resulted in compulsory or voluntary shutdown of businesses. The test case trial is said to be one of a number of global cases over business interruption claims. The FCA has brought the UK case on behalf of aggrieved policyholders, and the court decision would also affect more than 20 other insurers including Allianz SE, American International Group Inc. and Chubb Ltd.

“The FCA’s lawyer, Leigh-Ann Mulcahy, disputed attempts by the insurers to portray companies shutting during lockdown as a voluntary decision. At issue is the question of whether “access” to businesses was prevented by government restrictions. Lawyers for Zurich said in court documents that the closures recommended, not required, a situation they likened to advice the government gives on smoking or not drinking more than 14 units of alcohol a week.”

Judges will be among those rewarded for their work as essential front line public service personnel during the coronavirus pandemic, according to the Law Society Gazette.

“The Ministry of Justice announced a 2% pay award in 2019/2020 for all judicial office holders as part of the government’s response to a major review by the Senior Salaries review Body. The department said it equalled the 2% pay award made in 2018/19, the highest judicial pay increase for a decade.”

The Treasury said this year’s pay awards “reflect the enormous effort made by those in the public sector in responding to the unprecedented challenges for the country during the Covid-19 outbreak.”

Hard as they have no doubt worked, the judges could not have continued to operate during the pandemic, particularly in hearing cases remotely, without the very considerable “all hands on deck” assistance of legal practitioners, many of whom have nevertheless been savagely penalised for being self-employed and for accepting work on the basis of legal aid payments which have dwindled to practically nothing during the pandemic (after many years of attrition).

Commenting on the judges’ pay award, Law Society president Simon Davis said:

“Civil legal aid and criminal defence practitioners have been working throughout the pandemic to seek justice for their clients and yet legal aid fees rates have not increased in cash terms, let alone in real terms, in over 20 years.”

Twitter hack exposes broader threat to democracy and society, says Laura DeNardis on Inforrm’s Blog. The hack on the surface may appear to be a run-of-the-mill financial scam, she says, but the breach has chilling implications for democracy.

For more on the Twitter hack itself, see Guardian: Twitter hack: accounts of prominent figures, including Biden, Musk, Obama, Gates and Kanye compromised

The Office of Public Guardian and MoJ announced the launch of a New online service to improve Lasting Power of Attorney. A Lasting Power of Attorney (LPA) is a legal document which allows people to appoint someone else (an attorney) to make decisions about their welfare, money or property. According to the announcement,

“the new digital ‘Use a lasting power of attorney’ tool will help those acting as an attorney to contact organisations like banks and healthcare providers more easily. This will improve the speed with which they can make important decisions, such as those related to their loved ones’ care or property.

The current paper-based process can take weeks, as documents need to be requested and confirmed between organisations and individuals, before being posted as physical copies. The new system will allow those acting as an attorney to provide a secure code, which when submitted to the online portal will nearly instantaneously confirm their status as an attorney and the power they hold — authorising them to take actions on their loved ones’ behalf.”

The Law and Religion UK blog discusses recent changes in the Coronavirus lockdown rules affecting attendance at religious services and related developments in some recent posts:

Tackling the tax gap is a report by the National Audit Office.

“HMRC’s most recent estimate of the difference between the amount of tax theoretically owed and the amount collected — known as the tax gap — was £31 billion in 2018–19, equivalent to 4.7% of the total tax owed.”

This report looks at HMRC’s approach to tackling the tax gap.

The Criminal Injuries Compensation Authority and MoJ announced the launch of a new compensation scheme for victims of terrorism offences as part of a package of improvements to the Criminal Injuries Compensation Scheme (CICS) which awards compensation to victims of violent crime.

“The changes follow a commitment to improve the compensation process following the Manchester Arena Terror Attack, and support the government’s wider review of the support available to terror victims, including families and loved ones, to ensure more victims get the support and advice they need, faster.

The plans form part of a package of reforms Ministers are pursuing through a consultation launched today (16 July 2020) which seeks to improve the Criminal Injuries Compensation Scheme (CICS) — making the scheme simpler and more transparent, while ensuring it keeps pace with the changing nature of crime.”

And finally….

Queen’s Counsel cartoon by Alex Williams via QC Cartoon

This is the last of our roundups for the Trinity Term but we will continue to post on the blog during the long vacation, just as our reporters will continue to cover the occasional court sittings (remote and otherwise) that will take place over the next two months. Michaelmas Term begins on 1 October. Who knows what the world will look like then.

Mind how you go now. Thanks for reading.

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.