Weekly Notes: legal news from ICLR, 29 March 2021

This last roundup of legal news and comment before the Easter break includes vaccine passports, the constitution, courts recovery, a struggling justice system … and a seasonal chocolate bunny.

Photo by Giftpundits.com from Pexels

Politics

The Constitution under review

The Lord Chancellor Robert Buckland QC MP gave a speech at the Queen Mary University Conference last week discussing the UK’s constitution and his own role in it, which he aims to subject to some sort of review. This would follow earlier reviews into administrative law (discussed here last week) and human rights. In effect, he would be reviewing the Constitutional Reform Act 2005 under which his role as Secretary of State for Justice was created, and under which the Appellate Committee of the House of Lords was relocated and renamed as the UK Supreme Court on the other side of Parliament Square. All this reviewing is said to have been mandated under the manifesto on which the present Conservative government was elected.

Buckland has practised as a barrister and served as a part time judge (recorder) prior to taking up ministerial roles. He alluded to the fact that, prior to the 2005 Act, it was not uncommon for Lord Chancellors to sit judicially, as well as participating in the legislative process (in the House of Lords) and sitting in cabinet. In that sense, they straddled all three of the functions (judicial, legislative, executive) supposedly kept separate under the doctrine of the separation of powers — a role Buckland describes as the “linchpin” of the constitution. (You could draw a Venn diagram to demonstrate this.) The 2005 Act effected a proper separation of powers, partly on the basis that it just looked better. The Law Lords stopped being part of the legislature and the Lord Chancellor stopped being a judge, did not even need to be a lawyer, but was instead charged with the role of defending the judiciary (something not all of Buckland’s predecessors in the revised role have been very good at) and given a government department to run (ditto).

Much of Buckland’s speech harks back to a philosophical contemplation of the binary nature of the judicial role — as adjudicator applying existing laws and as legislator, in developing the rules and doctrines of the common law —in a lecture given by Professor HLA Hart in 1977.

“Hart explained that there were two views on how the courts approach such a task, which he termed the Nightmare and the Noble Dream. And setting aside the purist view that, when faced with a dispute, judges simply apply existing law and do not create new law, Hart saw two extremes: firstly, the Nightmare of judges deciding dockets of moral and political questions, and then the Dream of judges threading fundamental principles through every case.”

Granted that this was a speech given at an academic institution, we can perhaps forgive Buckland for making a bit of a meal of this. But perhaps the point of it was to send a coded message to the judiciary reminding them to know their limits, not to wade into matters of morals or policy best left to the democratic process, and stick to the noble dreamy stuff of adjudicating along the lines already laid down by Parliament. (This is all very well, but as Lord Sumption reminded us in his Reith lectures, Parliament needs to do its bit and not abdicate responsibility for dealing with difficult moral and policy choices, lest judges be drawn in to fill the vacuum.)

All this seemed then to be leading to the fundamental point: “the continued failure of the courts to give full effect to ouster clauses is a cause for concern”. An ouster clause is a legislative provision specifying that the decision of the executive on a particular matter cannot be questioned or reviewed by a court. Such a clause, if called into question in legal proceedings, requires the court to consider whether it even has jurisdiction, whether the matter in question is justiciable. Such clauses are often found, by the courts, to have failed to achieve their ousting purpose. Can it be done? It seems an odd Holy Grail to aim for, a bit like the so-called “perfect crime” or the solution to a notorious mathematical problem.

For more on this speech, see Joshua Rozenberg, A Lawyer Writes: Lord chancellor to review his own post

For more on the constitution and constitutions generally, see:

Justice system under ‘unprecedented pressure’

“Besieged” prisons, probation & courts can’t provide justice for “victims, offenders, taxpayers or society” according to a report by the Public Accounts Committee published last week. Its Key challenges facing the Ministry of Justice report says the Ministry of Justice (MoJ) “faces significant risks across the full range of its services, without a clear sense of prioritisation” and huge backlogs that have built up are causing “unacceptably long waiting times for people to access justice”.

“The Ministry of Justice (the Ministry) is facing significant risks across courts and tribunals, prisons and probation services as it attempts to recover from the pandemic and make progress with ambitious change programmes. The court reform programme is in its final phases but still not in the clear; a major programme of building new prisons is underway but threatened by an eye-watering maintenance backlog of around £1 billion; and HM Prisons and Probation Service (HMPPS) an executive agency of the Ministry, is in the process of reunifying the probation service. These are daunting challenges, made more difficult by the need to plan for and manage the expected surge in demand across the criminal justice system from the recruitment of 20,000 new police officers.

The response to the pandemic has exacerbated existing pressures on the justice system. The backlog in the court system means unacceptably long waiting times for people to access justice. We remain unconvinced that the Ministry and HM Courts & Tribunals Service (HMCTS) have robust plans in place to manage the challenges in the court system, and for reducing the huge backlogs that have built up.

We are also concerned that restrictive regimes in prisons during the pandemic have worsened prisoner wellbeing and mental health, and social distancing has made the effective provision of rehabilitation and probation services much more challenging. While we are encouraged by HMPPS’s plans for managing the risks in the prison system and probation services, the maintenance backlog poses a real threat to achieving a safe and secure prison estate.”

The report welcomes the additional funding that has been promised in the recent spending review, but shows little optimism that problems, many of them self-inflicted by earlier “reforms” (eg former Lord Chancellor Chris Grayling’s disastrous probation rethink, or the austerity cuts to police and prison officer numbers). However, it has made a number of recommendations, identifying steps the ministry should take to show how it plans to ameliorate the problems.

Courts

Supreme nominative determinism

The suggestion, trailed indirectly via a report in the Daily Telegraph about ministerial discussions, that the government might rename the UK Supreme Court because of a public perception that it had the same power as the Supreme Court of the United States (SCOTUS) to strike down legislation (and by implication to overrule the will of the people as expressed in the executive antics of a particular government) was given what is generally described as short shrift by the current President of the UK’s apex court, Lord Reed, when giving oral evidence to House of Lords constitution committee, on 17 March 2021.

According to a post by Joshua Rozenberg, Lord Reed said

“it would be widely perceived as an act of spite. It wouldn’t change the law or the attitude of the judges. The idea that seems to lie behind this proposal — that calling a court a “supreme court” results in its behaving like the American one — is simply idiotic.”

He also poured what is generally described as cold water on other trailed suggestions in the DTel report, such as the idea that judges need not be specially appointed to the court, but could be called in from other courts or jurisdictions, something Lord Reed pointed out already happens.

Like much of what is presented as a grand rethinking of a somehow broken UK constitution, as viewed through the blue rinsed lens of the last Conservative party election manifesto, this tinkering with names and tweaking of rules and roles appears to be largely a public demonstration (like so much legislation) that “something is being done”. From a government that seems unhealthily obsessed with flags and memorials, this seems to be more concerned with form than function.

In any case, the time to have thought of a different name for the Supreme Court was probably back in 2005, when the name was co-opted from the High Court and Court of Appeal, which were so designated back in 1873, and which were then re-named the Senior Courts. In a number of other common law jurisdictions, “Supreme Court” refers to the first instance court hearing the most important cases, and in some (eg the Commonwealth of Australia) their court of final appeal is called the High Court. So there is no consistency across the common law world, and we might be just as well off (a bit clearer perhaps) if, like Hong Kong, we called it the UK Court of Final Appeal. (As to Hong Kong, however, there are questions about its Court of Final Appeal, where UK Supreme Court judges still occasionally sit — a practice that has come under increasing criticism in view of the anti-democratic measures being taken by the government of the People’s Republic of China.)

See: A Lawyer Writes, Top judge rebuffs attack on top court

The Direction of Travel

In a speech to the Chancery Bar Association, Sir Julian Flaux CHC (newly appointed Chancellor of the High Court) on 10 March 2021 outlines his approach to the resumption of physical court hearings as the threat of covid recedes, and calls for

“a more reflective and less crisis-driven approach to remote hearings, or those with a remote element. With an eye firmly on the middle distance, we must seize the good things that have come out of the terrible crisis — the efficiencies and the things that we have learnt to do better — and jettison the bad, — including the erosion that working from home has caused to our perception of the work/life balance. There is no doubt that we have been offered an opportunity to do things differently, and we should grasp that firmly.”

He welcomes the possibility, under the Police, Crime, Sentencing and Courts Bill, for the temporary provisions in the Coronavirus Act that enabled the observation of remote hearings to be made permanent:

“This could only benefit the B&PCs and make them more competitive, as it would maintain the ability of clients and witnesses to participate in hearings remotely and enable the press and members of the public to observe hearings remotely. This would give the B&PCs an opportunity to build on the better elements of this method of resolving some disputes.”

This seems a more thoughtful and constructive approach than the one (attributed to the Lord Chief Justice) that just says “back to the old normal” which we discussed last week. (To be fair, that may be more desirable in criminal and public law proceedings than those in the Business and Property Courts for which the Chancellor is responsible, as we said at the time.)

Data protection

Vaccination passports and other covid status certificates

The Prime Minister has swithered, it seems, on whether pubs and entertainment venues might at some point require vaccination passports or some other form of coronavirus immunity certification. There has been talk of “no jab, no job” requirements in certain types of employment, mainly in the health and care sectors. No one seems to agree on what to require of whom, or when, but simply talking about it may help boost public enthusiasm for the vaccine. In the meantime, there has been a government call for evidence which closed today.

There is a discussion of the whole subject on the Better Human podcast: 55 — The difficult case of vaccine passports. To examine the ethical and human rights implications Adam Wagner of Doughty St Chambers is joined by Judith Bueno de Mesquita and Professor Wayne Martin, both of Essex University. You can watch the podcast on YouTube or listen on your favourite podcast platform (links here).

Another podcast, The Law Report, from ABC, discusses the question in the context of Australian employment law: Can you be sacked if you refuse a COVID-19 vaccine?

A key issue in relation to any scheme is proper governance and respect for the confidentiality of people’s data. The Information Commissioner,
Elizabeth Denham discussed this is a recent blog post:

“We understand the potential benefits of people being able to demonstrate their COVID-status, including safeguarding public health and reopening parts of the economy.

The success of any future COVID-status schemes will rely on people trusting them and having confidence in how their personal data will be used. It is crucial that, from the start, thought is given to how data can be used fairly and how this can be explained clearly to people using a scheme.

Any organisation processing personal data as part of a COVID-status certification scheme would be responsible for using that personal data appropriately and for complying with data protection law. While these schemes may be new, the principles are the same.”

See: on the ICO website, Data Protection law can help create public trust and confidence around COVID-status certification schemes

Legal services

Regulating the regulators

It sometimes seems to be turtles all the way down with legal regulators, there are so many of them. The biggest turtle of them all is the Legal Services Board, but in its recently published 10-year strategy document it names no fewer than 15 other, subsidiary regulators. These include regulators (or representative bodies) and regulatory (disciplinary) bodies for solicitors, barristers, legal executives, licensed conveyancers, costs lawyers, notaries and, it seems, accountants. (Is that all? Blessed are the will-makers, for surely they too should have their own regulator. And what about the irregulars? McKenzie Friends and Barrack-room lawyers?)

One of the reasons for this proliferation of regulatory bodies is that disciplinary functions have, for good reasons of securing public confidence, been separated out from promotion of professional interests. Thus the Bar Council represents the profession but the Bar Standards Board updates the professional conduct code and decides disciplinary complaints. (This was one of the consequences of the Legal Services Act 2007, which created the current regulatory structure.) The LSB is supposed to support and supervise all these professional bodies, while also having responsibility for overseeing the Office for Legal Complaints (OLC — the board of the Legal Ombudsman) which is handles most complaints from the public, and has its own promotional / developmental role via its Legal Services Consumer Panel (LSCP). All in all, that’s quite a stack of turtles.

Last year a review by the Centre for Ethics & Law in the UCL Faculty of Laws led by honorary professor Stephen Mayson recommended that all providers of legal services, whether legally qualified or not, should be registered and regulated by a single regulator, to be known as the Legal Services Regulation Authority (LSRA). Mayson’s final report, Reforming Legal Services: regulating beyond the echo chambers (June 2020) pointed out that the current multi-regulator framework for the regulation of legal services in England & Wales is overly cumbersome and does not reflect the needs of “more than 90% of the population for whom it is not currently designed”.

Whether or not there is any appetite for the reorganisation this would involve, now does not seem to be the time for it. The LSB has forged ahead with its own sector-wide strategy and a business plan for the current year, underpinned by last year’s State of Legal Services 2020 report, and barely mentioning Professor Mayson or his report (save for deriving from it some support for reforming the Legal Services Act 2007). Instead, it has set its sights on addressing unmet need for legal services, ensuring fairer outcomes, developing better services, fostering innovation and promoting a modern diverse profession at all levels.

Other recent publications

The Digital Services Act: changing the rules of business

In a recent article on the Internet Newsletter for Lawyers, barrister Ian Whitehurst of Exchange Chambers discusses the latest European Union legislation designed to regulate digital services and markets. The Digital Services Act (DSA) and its sister legislation, the Digital Markets Act (DMA) seek to build upon earlier EU legislation such as the E–Commerce Directive 2000. The legislative intent of both pieces of legislation is to reform the digital marketplace and in particular to control and regulate how big tech operates and does business within the EU borders.

Family Court Reporting Watch Roundup

Regular roundup compiled by Alice Twaite of the Transparency Project, whose bloggers correct, clarify and comment on media reports of family court cases, explain and comment on published family court judgments and highlight other transparency news.

Should we reform the Human Rights Act?

Joshua Rozenberg on A Lawyer Writes discusses his and other evidence given to the Joint Committee on Human Rights about the Independent Human Rights Act Review chaired by Sir Peter Gross.

Coronavirus and ecclesiastical law — II

In the second of a series of posts on the impact of coronavirus on worship and other religious activity, David Pocklington on the Law & Religion UK blog considers the Impact of closure of churches on Church services. (See also regular updates on this blog, eg Law and religion round-up — 28th March and other recent posts.)

Dates and Deadlines

Diversity in the Legal Profession

Gresham College (live-streamed) — Thursday 1 April 2021, 6 to 7 pm.

Emeritus Law Professor Jo Delahunty QC and guests including Mass Ndow-Njie, Derek Sweeting QC, Brie Stevens-Hoare QC, and Toby Coupe will explore what the future holds for the next generation of barristers: will they better reflect the society they serve in terms of background, ethnicity and gender? Is privilege and income as much of a division at The Bar as it is in society?

What can institutions such as Universities, The Inns, The City, and Gresham do to reach out to students who may not have professionals in their family to open their eyes to their potential and the legal profession?

For more information and to register visit the Gresham College website.

Civil Procedure Rule Committee: Annual open meeting

Microsoft Teams — 14 May 2021

Anyone interested in observing the rule making process should apply for a place by 12 April 2021 at 4pm. Due to limitations with the conferencing software, space is limited and not all those that apply may be invited, so potential guests are asked to complete a short application form. For more information, see Civil Procedure Rule Committee webpage.

And finally…

Tweet of the week

offers a cheeky take from Daniel Benneworth-Gray on the current government obsession with flags and memorials:

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.