Weekly Notes: legal news from ICLR, 6 April 2020
We began this year’s Hilary Term with busy plans for legislation to Get Brexit Done, to modernise marriage and divorce laws, to deal with crime and domestic violence, and to help refugees and victims of the Windrush scandal. We end it with a population in the grip of pandemic, struggling to protect our health service and prevent economic collapse, and keeping the lamp of justice alive in the flickering screens of video conference apps. Greetings from the home study.
Scrutiny of emergency provisions
There has been more commentary on the emergency legislation. In The Coronavirus Act 2020: When Legislation Goes Viral (Part One), the first of two blogposts on the UK Human Rights Blog, Darragh Coffey explores why it was considered necessary and consider some general aspects of the Act. (In a second post, he will explore some of the more interesting/controversial aspects of the Coronavirus Act 2020.)
See also: Obiter J, Law and Lawyers Blog, Coronavirus Act 2020 — Overview and Coronavirus Act 2020 ~ police power ~ potentially infectious persons
In Coronavirus laws and anxious scrutiny, David Allen Green on the Law and Policy blog considers how “the most illiberal laws since at least the second world war” have been “imposed without any formal democratic sanction”. That is why, he says, however necessary or justified The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 might be, their use and interpretation should still be properly scrutinised and challenged.
On a similar theme, in The quickly mutating Coronavirus legislation — drafting anomalies and police powers, Dijen Basu QC on the UK Police Law Blog charts the history of the same Regulations, replacing earlier temporary ones needed to achieve a lockdown, and some anomalies in their application and interpretation across different parts of the kingdom.
“Any restriction on liberty which is backed by the potential of coercive law enforcement action and penalties involving having a criminal record and paying a potentially unlimited fine, must be contained in very clearly expressed legislation so that it can be applied consistently, proportionately and rationally. No citizen of a free country — including a police officer — wants to see restrictions which seem arbitrary or unfair or which differ between different parts of a united kingdom which face precisely the same threat.”
See also, Obiter J, Law and Lawyers blog, Overview — The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020
To combat the confusion about what members of the public can and can’t do during the lockdown, and to what extent the police can stop or arrest them for doing it, the Cabinet Office has issued Guidance: Coronavirus outbreak FAQs: what you can and can’t do
However, the government’s guidance/policy is itself the subject of a challenge by the law firm Bindmans, on which David Allen Green has also written a post: What is the Bindmans challenge to the Coronavirus government guidance about? The challenge relates to the difficulties the guidance imposes on families with autistic children whose conditions require them to be able to get out of the house more than once a day for wellbeing reasons. They assert that
“Adults and children with disabilities (including those with autism and mental health conditions) are disproportionately affected by the inflexible policy, which is therefore unlawful and discriminatory.
Furthermore, the restrictions within the Policy are not reflected in the current legislation that restricts citizens’ movement.”
Members of 5 Essex Court chambers, who are frequently instructed by the police and have, they say, considerable expertise in police law, have issued Coronavirus: A guide for Police Forces in England (1 April 2020) which aims to assist the police in interpreting and applying the new legislation.
Keeping justice open
HMCTS are issuing a Daily operational summary on courts and tribunals during coronavirus (COVID-19) which will be updated regularly.
A number of judicial practice directions or guidance notes have been issued.
- In the civil courts, a new practice direction, PD51ZA came into force on 2 April. It is the latest of several designed to facilitate and legitimise remote court proceedings and enable the press and public to listen, watch and catchup with the cases heard in them. Its main effect was to allow the parties to agree a longer than usual extension of time but it also clarified the effect of an earlier practice direction, PD51Y, by removing the need for a formal application to be made to the court for permission to listen to or view a recording of a remote hearing.
- There is a Contingency Plan for maintaining Urgent Court Hearings in the High Court, issued on 26 March.
- The Protocol Regarding Remote Hearings in civil courts was updated on 26 March.
- For criminal courts, a Coronavirus Crisis Protocol for the Effective Handling of Custody Time Limit Cases in the Magistrates’ and Crown Courts was issued on 30 March,
- For family courts, on 3 April Mr Justice MacDonald reissued his judicial guidance on family justice during the pandemic — ‘The Remote Access Family Court’. It is now in its third edition, with updates marked in red, incorporating suggestions and feedback provided by the Transparency Project in its briefing, The Remote Family Court — where does transparency fit in?
- On 31 March Mr Justice Hayden issued Remote Access to the Court of Protection Guidance
- For employment tribunal, answers to FAQs arising from the Covid-19 pandemic were published on 3 April.
These and other directions, guidance notes and protocols can be found on a special page on the Judiciary website, Coronavirus (COVID-19) advice and guidance, which is also the first place to look for any new ones issued in the coming days.
Litigation during lockdown: UK courts keep calm and carry on – Mathilde Groppo on Inforrm’s Blog summarises the current situation and highlights some of the problems.
In Local Family courts guidance in time of Covid-19: part 1 and Family Proceedings at a time of Coronavirus: Part 2 David Burrows considers the legal basis for some of the judicial guidance and purported exercise of rule-making powers in managing remote hearings.
Problems with remote justice
Free Movement reports that Members of the immigration bar have written to First-tier Tribunal President Michael Clements to express deep concern about the arrangements for hearing immigration cases during the coronavirus pandemic: see Immigration bar protests “unworkable” remote hearing arrangements
Penelope Gibbs, of Transform Justice, comments via LinkedIn on the problems of maintaining openness and transparency with so many hearings, particularly criminal cases in the magistrates’ courts, being conducted remotely and without proper arrangements for press and public to watch them. See Is closed justice a price worth paying to keep courts running?
Information rights cases suspended
By Directions dated 1 April 2020, the FTT has issued a general stay of ALL PROCEEDINGS under section 48 of the Data Protection Act 1998, section 162 of the Data Protection Act 2018 and section 57 of the Freedom of Information Act 2000, lasting 28 days from the date of the Directions, according to the Panopticon Blog, First-Tier Tribunal suspends all information rights cases for 28 days
A “constructive atmosphere”
According to a recent communique the European Union and the United Kingdom
“held their first Joint Committee meeting on the implementation and application of the Withdrawal Agreement, by means of teleconference. The Joint Committee is co-chaired by European Commission Vice-President Maroš Šefčovič and the UK Chancellor of the Duchy of Lancaster Michael Gove. The discussion took place in a constructive and productive atmosphere.”
Discussing the implementation of the Withdrawal Agreement at a time like this feels a tad decadent, but the parties have nevertheless decided to launch the work of the six Specialised Committees on the key areas for the implementation of the Withdrawal Agreement.
A question that has been asked (by Professor David Bailey) is Has Brexit helped business prepare for the coronavirus? But one might equally ask whether Coronavirus might now be helping us prepare for Brexit (the cold hard supply-chain throttling effect of which will actually begin on 31 December 2020).
Temporary release of pregnant prisoners
Pregnant women in custody and prisoners in Mother and Baby Units who do not pose a high risk of harm to the public will be temporarily released from prison within days to protect them from coronavirus, the Ministry of Justice has announced, as part of its efforts to reduce the risks of the pandemic to the prison population and staff:
Prison governors will be able to grant their release on temporary licence once they pass a risk assessment and suitable accommodation for the women has been identified.
This decision follows intense work across the prison estate to protect prison staff, the public and prisoners during the coronavirus pandemic, and as part of the national effort to protect the NHS and save lives.
The Prison Service last week took steps to ensure prisons are complying with social distancing rules and provided alternative means for prisoners to keep in touch with their families after cancelling family visits.”
Facial recognition: call for evidence
The Biometrics and Forensic Ethics group (BFEG) is investigating the ethical issues in the use of Live Facial Recognition (LFR) technology in collaboration between police forces and private entities. Views on this specific use are now sought from:
- manufacturers of LFR technology
- public and private sector users of LFR technology
- past users, or potential future users of LFR technology, such as councils, land owners and police or security forces
However, an evidence gathering event focusing on the technology and its users that had been planned to take place on 30 April 2020 in central London will now be postponed to 29 June 2020 owing to the coronavirus pandemic.
Interested parties are invited to provide oral or written evidence to the BFEG Secretariat at BFEG@homeoffice.gov.uk with a brief description of the organisation they represent, and the type of information they can provide on the use of Live Facial Recognition (LFR) technology in collaborations between police forces and private entities.
In Coronavirus pandemic has unleashed a wave of cyber attacks: here’s how to protect yourself, Chaminda Hewage on Inforrm’s Blog sets out some straightforward guidelines that should help you protect yourself from the Cyber criminals who are trying to leverage the emergency by sending out “phishing” attacks that lure internet users to click on malicious links or files.
Bar Council coronavirus survey
At the end of March the Bar Council conducted a survey of Heads of Chambers to help understand the immediate and expected impact the pandemic would have on the profession and its members.
The responses were depressing. Over half (55%) of chambers “cannot survive six months” without financial aid, and 81% could not survive 12 months. The worst affected would be the criminal bar, amongst whom 67% of chambers could not survive six months, and 90% a year.
Some 60% of criminal sets are already furloughing clerks or other staff and 51% are taking urgent measures such as renegotiating leases. The current financial relief offered by the government does not address many of the problems faced by the bar, such as pupils, junior tenants, and those returning from parental leave. The disproportionate impact of financial pressure on the publicly-funded bar, given its more diverse profile, is likely, if continued for a sustained period, to have an adverse effect on diversity at the Bar.
See also: Young Bar blog: Supporting the Young Bar during COVID-19 Part 2 which discusses safety, well being, financial stability and access to justice issues relating to the coronavirus situation and its impact on the young bar, pupils and trainees.
UK Labour Law Blog, Furloughing and Fundamental Rights: The Case of Paid Annual Leave
As the Coronavirus Job Retention Scheme takes shape over the coming weeks, this post by Alan Bogg and Michael Ford discusses its interaction with a host of existing employment rights will need to be clarified as a matter of urgency. A key question will be the intersection between ‘furloughing’ under the Scheme, and the right to paid annual leave.
Guardian, Domestic abuse cases soar as lockdown takes its toll
Mark Townsend reports that “More than 25 organisations helping domestic violence victims have reported an increase in their caseload since the start of the UK’s coronavirus epidemic”.
Follows on from an earlier story by Louise Tickle, also in the Guardian, Coronavirus puts vulnerable UK children at greater risk, campaigners warn
UK Human Rights Blog, Inquests into deaths in custody during the COVID-19 pandemic
Following the sad news of the first death in custody from COVID-19, this post discusses what are likely to be the issues at inquests into the deaths in custody from COVID-19.
See also, on the same blog, Coroners’ Investigations, Inquests and COVID-19
Free Movement, Coronavirus and the UK immigration system
This post gathers together various updates on changes to immigration law and practice caused by coronavirus.
UK Constitutional Law Association, Windrush: Lessons learned or perhaps not?
Carol Harlow, Emeritus Professor of Law at LSE, considers the scope, background and effect of the report into the Windrush scandal that was published on 19 March, “screened by the draft Corona: Defence of the Realm Bill” as it was then known (ie at a time when it was likely to be buried by other news).
Inforrm’s Blog, The Good, The Bad and The Ugly of Social Media during the Coronavirus pandemic
Peter Coe discusses how people’s behaviour during the crisis has been reflected in our use of social media; we have used it to do some great things, but it has also been used badly (and for some really ugly stuff too), which I will come to in a moment.
Legal Cheek Awards 2020
Instead of a noisy event planned to take place at Sea Containers House on the evening of 26 March, 200 guests donned their most glamorous getups (from the waist upwards!) and tuned in live to a Virtual Legal Cheek Awards. The invite-only online event was sponsored by BARBRI, whose managing director Sarah Hutchinson delivered an online presentation of the findings of the Legal Cheek 60-second SQE survey.
Legal Cheek founder and host Alex Aldridge then kicked off the evening with a short welcome featuring Legal Cheek reporter and resident DJ Adam Mawardi, who provided the themed soundtrack to the announcements of the 21 awards. You can read the full list of winners here.
Of particular interest was the winner of the award for Best Use of Social Media which went to Carpool Caselaw, from Wilberforce Chambers, an innovative twist on the concept of vehicular vlogging, for anyone interested in watching a barristerial father and daughter discussing landlord and tenant law on the road.
Book Launch: The ‘Secret’ Family Court
Instead of the launch event planned to take place at the Law Society on the evening of 26 March, Bath Publishing held a webinar to mark the publication of The ‘Secret’ Family Court: Fact or Fiction? involving the author, retired judge Clifford Bellamy, and a team of leading thinkers on transparency and media reporting in the family courts. The session was chaired by Louise Tickle, campaigning journalist on family court reporting, who began by interviewing HH Clifford Bellamy on why he wrote the book and what he sought to achieve as a result of publication.
The session then moved onto a lively panel discussion with Sir James Munby (immediate past President of the Family Division,) Lucy Reed (family law barrister, at St Johns Chambers, PinkTape blogger and Chair of The Transparency Project), and Dr Julie Doughty ( lecture in family and media law, University of Cardiff) plus questions from the audience.
You can watch the recorded webinar via the Bath Publishing website, where you can also order the book. We will be reviewing it in due course.
Dates and Deadlines
Tips for being on your feet – a practical guide
Jaime Hamilton QC in association with the acclaimed website Pupillage & How to Get It will host two webinars focussing on addressing the fears and knowledge gaps new criminal advocates face when stepping into court for the first time.
14 April 2020 – Your first meeting with the client. This will focus on conferencing skills, advising on evidence and taking instructions.
16 April – Your first days in court. Focussed on all the need to know information to successfully transition from first to second six
To apply, send an email to email@example.com with the subject matter header “Webinar 1" or “Webinar 2".
Tweet of the Week
Is from New Zealand, where courts are coping with remote hearings just like here.
Strictly Obiter is not always strictly serious — as may be apparent from a recent blog post, Members of Supreme Court regretting choosing to bubble together
That’s it for this term. We’re taking a break now, but we’ll be back towards the end of the month after the start of the Easter Term on Tuesday 21 April. 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.
Featured image: Cherry Blossom by Pixabay, via Pexels