Weekly Notes: legal news from ICLR, 8 June 2020

This week’s roundup of legal news and commentary includes a debate about parliamentary debates, more courts open but not necessarily more open courts, whether there remotely is a way where there’s a will, a bit of statuary deconstruction, and a further stay on renters not being allowed to stay.

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Honk for the NHS! [Photo by Brandon Montrone from Pexels]

Parliament

During the coronavirus lockdown MPs have been using a “hybrid” system of sittings, with some appearing in person in the Commons chamber, and some appearing via video link. A number of votes have thus been held remotely for the first time in Parliament’s history. Those measures were initially due to end on 12 May, but MPs agreed to a motion from the government to extend the relevant standing orders until 21 May — the start of the Whitsun recess. These were considered by the Procedure Committee in its report Procedure under coronavirus restrictions: remote voting in divisions (7 May 2020).

However, the government (represented by the Leader of the House, Jacob Rees-Mogg MP) was opposed to any further extension of the measures, saying that allowing members to debate and vote digitally had been ineffective and would be “better done face-to-face”. See: Politics Home, Jacob Rees-Mogg confirms virtual Parliament will end despite claim shielding MPs will be ‘euthanised from Commons’

In a letter to all MPs, the Speaker explained why he had acceded to the government’s request to hold a vote on the matter on 2 June. In view of advice from Public Health England that the division lobbies should not be used, arrangements were made for voting on a motion on the future conduct of business to take place in the main chamber, with a long queue in stretching back into Westminster Hall, to ensure appropriate personal distancing. The government motion was carried, which meant that remote sittings and remote divisions would cease and the House would return to wholly physical proceedings. However, they would still need to be appropriately distanced, so there would be a limit of 50 in the chamber at any one time.

On 4 June, in response to a number of the concerns which had been expressed, government motions to allow virtual participation in questions, urgent questions and statements, and remote voting for those Members restricted from attendance by coronavirus, were agreed. However, there is to be a further emergency debate on this on Monday 8 June. See House of Commons Library Briefing Emergency Debate on the conduct of House business during the coronavirus pandemic

See also: Institute for Government, Parliament’s role in the coronavirus crisis, which notes that

“Working virtually enhanced the ability of select committees to hold the government to account, as remote meetings were easier for MPs to attend during a recess and could reach a broader range of witnesses. MPs could ask questions of ministers, respond to ministerial statements, and debate and vote on legislation. Crucially, no MP was disadvantaged by participating remotely rather than in person.”

Courts

An expansion of face-to-face hearings is planned this week as 16 more court and tribunal buildings open across England and Wales, the Ministry of Justice announced on 8 June. They say

“16 more sites have been assessed as suitable to hold socially-distanced hearings. These are spread across the country and across all jurisdictions. Each building has been individually assessed and will strictly follow public health guidance to ensure the protection and safety of all court users.”

A full list of the newly reopened courts is provided in the announcement. They bring up to 184 the number of court and tribunal buildings open for essential face-to-face hearings, in addition to which a further 109 court and tribunal buildings remain closed to the public but open to HM Courts and Tribunal (HMCTS) staff, the judiciary and those from other agencies.

See also: HMCTS weekly operational summary on courts and tribunals during coronavirus (COVID-19) outbreak

The report from the Civil Justice Council’s rapid review of the impact of COVID measures on the civil justice system was published on 4 June. The review was led by Dr Natalie Byrom, Director of Research at The Legal Education Foundation, with the support of a wider virtual working group. We summarised the report’s main findings and recommendations in a separate post: Civil Justice Council report on the impact of COVID-19 on civil courts

See also

Wills

A story in Legal Futures raises the question whether a will can be validly witnessed via WhatsApp. The testator, who was ill with Covid-19, made a will which was then witnessed on video using the app. As the LF article explains:

“There has been a lively debate over executing wills during the period of lockdown and social distancing, with the conventional wisdom being that the Wills Act 1837 does not allow someone to witness a will via video messaging, as a witness must be physically present.”

The firm involved, Royds Withy King, drafted the will after an initial consultation via WhatsApp and then the solicitor and his wife both witnessed his signature during a second video call. But the firm says it will seek to execute the will conventionally if possible once the lockdown is over. The case highlights the problem relating to the need for physical proximity to witness signatures during the lockdown, which a campaign led by Gina Miller has sought to address.

The problem was the subject of a post by Barbara Rich, a barrister who specialises in this area: Honora Jenkins and her legacy. She has also recently given a webinar on the topic, Will Formalities, which is available via her chambers website. The predominant view is that the 1837 Act requires actual simultaneous presence of testator and witnesses, and would not be satisfied by remote witnessing via live-stream video, although no court has yet been asked to determine whether such a will would be admissible to probate. Several English-speaking jurisdictions have introduced emergency laws permitting a will to be witnessed in this way, and if similar provisions were to be introduced in England and Wales that would put the question beyond doubt.

Land law

The Nearly Legal blog reports that the stay imposed by CPR PD 51Z on possession claims is to be extended. A government announcement states that the existing stay will continue till 23 August, and that “Renters across England and Wales will receive greater protection”.

“The extension announced by the Housing Secretary today (5 June 2020) takes the moratorium on evictions to a total of 5 months to ensure that renters continue to have certainty and security.

Ministers are also working with the judiciary, legal representatives and the advice sector on arrangements, including new rules, which will mean that courts are better able to address the need for appropriate protection of all parties, including those shielding from coronavirus.”

The use of the term “renters” is presumably intended to cover a wider category than those strictly categorised as tenants, but looks confusingly similar to the word “rentier” which actually means a landlord.

Nearly Legal notes that

“A working group on possession proceedings has been established by the Master of the Rolls to ensure appropriate arrangements are in place across the county courts when possession claims resume.

This is a blunt instrument to be sure, but the right thing to do.”

Human Rights

Public protests have continued both in the United States and in other countries, including the United Kingdom, over the unlawful killing of a black suspect by police and other examples of systemic and institutional racism. They have been amply reported in the news.

The Bar Human Rights Committee of England and Wales has issued a statement, USA: Policing response to peaceful protests indiscriminate and excessive, in which it “expresses condemnation at the excessive use of force deployed by State law enforcement officers in the United States”, and notes that:

“The law enforcement response, widely covered by reporters on the ground and across social media, has deployed excessive and indiscriminate force against peaceful civilians as well as widespread attacks on journalists. … The US is a party to the International Covenant on Civil and Political Rights (ICCPR) which guarantees rights to life, liberty and security of person, freedom from arbitrary detention, freedom of expression, and the right of peaceful assembly. All these rights are, of course, also protected by the US Constitution. … The ICCPR requires States to investigate alleged violations of these rights.”

In the United Kingdom protests have taken place in a number of cities. In Bristol an angry mob pulled down a statue, erected in 1895, to memorialise a former slave trader, MP and public benefactor, Edward Colston (1636–1721), and threw it into the harbour. The incident was condemned by some as wanton vandalism likely to undermine the message of the protest, and justified by others as civil disobedience in the face of civic intransigence. Comparisons were made with the statues erected in the segregationist era memorialising Confederate leaders who resis abolition of the slave trade in the American Civil War, and the continuing affront they represent to the descendants of the former slave population.

Whereas Colston’s effigy was placed in a watery dock, his reputation is now in the metaphorical dock of the court of public opinion, and his iconoclasts (if rounded up and arrested) could find themselves in a real dock in a criminal court. The likelihood of their being convicted is the subject of a post by Matthew Scott, aka BarristerBlogger: The Colston statue destroyers have no defence in law but they will never be convicted.

See also:

Recent commentary

One Kingdom but four nations emerging from lockdown at four different rates under four different laws, by Dijen Basu QC via the UK Police Law Blog explains “the difficulties with the amended legislation, the inconsistencies between the laws of the four nations of the UK, as well as the problems of enforcement by the police”.

The clock is ticking — bail breaches and Covid-19, Guest post by Hannah Edwards on the Secret Barrister blog, drawing attention to need to comply with the 24-hour time limit on magistrates dealing with alleged bail breachers once arrested.

Principles for legislators on the implementation of new technologies, posted by Dr Eoin O’Dell on his Cearta.ie blog: a joint proposal by him and other signatories of an earlier joint letter to the Irish government and legislators, on the need for robust protections for human rights and privacy in any laws regulating new technology, such as contact tracing apps.

Furlough and Common Law Rights and Remedies, by David Cabrelli and Jessica D’alton, via the UK Labour Law Blog, who “focus on the effect of furlough on the common law rights of employees and workers”.

South African lockdown rules declared unlawful: case comment by Rosalind English on the UK Human Rights Blog.

“A High Court judge in South Africa has just taken a stand on the ANC government’s reaction to the pandemic. He has ruled that some of the lockdown regulations do not satisfy the rationality test under public law, and that their encroachment and limitation on the freedoms set out in the South African Bill of Rights are not justified in a society based on ‘human dignity, equality and freedom as contemplated in Section 36 of the Constitution’.”

The case is De Beer v Minister of Cooperative Government and Traditional Affairs [2020] ZAGPPHC 184 (Case № 21542/2020 High Court of South Africa, Gauteng Division, Pretoria)

Why the Attorney General should resign, by David Allen Green, via his Law and Policy Blog. Explains what Suella Braverman AG did wrong when tweeting to support a statement from the Prime Minister’s office that Dominic Cummings did nothing wrong after he was alleged to have breached the coronavirus regulations, and then made public statements about the case that were incompatible with her special role as government legal adviser.

Still on the Cummings debacle, Colette Allen on Inforrm’s blog, in Cummings, #MediaWitchHunt and Trust, discusses the role of fake news and lack of government transparency in relation to its management of the coronavirus crisis and its impact on public trust in the news.

Media companies can now be held responsible for your dodgy comments, case comment by Michael Douglas on Inforrm’s blog, about the case of Fairfax Media Publications and othes v Voller [2020] NSWCA 102. The court held the newspaper publishers liable as publishers for comments hosted by them on their social media accounts.

When Privacy and Security Collide: the legality of using facial recognition security systems in quasi-public spaces, by Raghav Mendiratta via Inforrm’s blog. He says it is

“indisputable that members of the public do stand to benefit from more sophisticated security systems. However, the benefit of increased security cannot be at the risk of violating the right to privacy and data protection principles.”

Dates and Deadlines

Panel events via Google Meet — 6pm, 12 June and 17 June 2020

Organised by Holly Girven, hosted via Google Meet. Joining details via Forms.

LawWorks — 9.30 am 19 June 2020

LawWorks’ second Clinics Conference is a live online event bringing together clinic coordinators, supervisors and volunteers from different sectors, organisations and specialisms within the pro bono clinic community. Discussions will consider the role of clinics in a changing legal advice sector, contribute to conversations about pro bono and policy work, learn about tools to support the efficient and effective delivery of advice, and build new partnerships to ensure that a strong pro bono community continues to deliver much needed services in the ‘new normal’ future.

Andrea Coomber, Director of Justice, will deliver an opening keynote on ‘Justice in a time of crisis’, and panel sessions will cover changing need, supporting volunteers, and delivering differently.

Registration link; Clinics Conference 2020 registration

Applications open until 11pm on 22 June

The government has launched the recruitment process for the Independent Reviewer of the Prevent programme. The function of the reviewer is to “look at the effectiveness of the government’s strategy to protect vulnerable people from being drawn into terrorism” and to “make recommendations for the future”.

The appointment of the next reviewer will be through a full and open competition. This will involve an advisory assessment panel, with an independent chair, that will review the applications and interview shortlisted candidates. You can find out how to apply on the HM government public appointments website.

And finally…

is from Jon Worth and relates to that Parliament story about queuing to vote in the chamber:

Worth reading the whole thread, to track and trace the original source of the gag.

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.

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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.

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