Weekly Notes: legal news from ICLR, 9 November 2020
This week’s roundup of legal news and commentary includes an American election, an English lockdown, and what’s been happening to courts, judges, litigants and lawyers in the meantime.
Election fever goes viral
Last week, as a second national lockdown took effect in England, many of those confined to working or staying at home spent the time watching and waiting for results from the US Presidential Election. There was widespread coverage and discussion online, some of it moderate, some moderated, much of it hyperbolic. On his Twitter feed the incumbent President Trump claimed victory before any announcement had been made, and then complained that announcements of his defeat had been made prematurely: he has vowed to continue his fight for re-election via challenges in the courts. His lawyers, led by Rudy Giuliani, the former Mayor of New York City, held a press conference in the parking lot of the Four Seasons Total Landscaping company (not the swish hotel of that name, which had to issue a clarification lest the contrary be assumed), to announce their litigatory intentions.
This followed, apparently, a tweet from the President, subsequently deleted, announcing a “big press conference” at the Four Seasons in Philadelphia. The President meanwhile spent the day playing golf, perhaps intending to give the impression he was going to “keep calm and carry on”, notwithstanding the content of his tweets, many of which were subject to an advisory notice by Twitter under its “Civic integrity policy”.
According to The Independent, since election day, “More than a third of Trump’s tweets have been flagged for disinformation since election day”.
Following the announcement by broad consensus of major press and broadcast outlets that Joe Biden had effectively won the election, the Prime Minister Boris Johnson tweeted his formal congratulations; as did many other world leaders. While legal disputes may continue for some days or weeks, the chance of a judicial reversal of that general recognition of Biden’s victory seems to be receding rapidly, and not even the most partisan Supreme Court, in the unlikely event of any case reaching it, would be able to effect such a reversal. At least three states’ Electoral College votes would have to be set aside to reverse the overall result, it seems. But maybe those lawyers in a Philadelphia garden centre parking lot at the weekend knew something we don’t.
The election result is, as the saying goes, consequential. The most immediate consequence for the UK is likely to be increased pressure to reach a deal with the European Union over Brexit. Other political consequences include likely restored US support for multilateral endeavour, including the Paris Climate Accord, the United Nations, Nato and the World Health Organisation, though this may all need to wait till Biden takes office next year.
- Each Other, US Election 2020: 5 Ways The Result Could Affect Our Rights In The UK
- The Law Report, ABC Radio National podcast, Trump disputes election loss in court, Australian challenges to COVID-19 restrictions and First Nations art from Victorian prisons
- Useful case law resource: Election Law at Ohio State Moritz College of Law (of which Edward B. Foley, Ebersold Chair in Constitutional Law, interviewed in that Law Report podcast, is Director)
Review of parental access presumption
The government has announced a review to consider how the current approach to decisions on parental access made in the family courts is impacting child safety, in the next step forward for government’s wider plans to reform family courts and bring in greater protections for domestic abuse victims.
This follows the publication in June of the final report of a consultation panel Assessing Risk of Harm to Children and Parents in Private Law Children Cases (the Harms Report) and a package of reforms to overhaul how family courts deal with domestic abuse cases — providing extra protections in courtrooms for victims, stronger powers to block abusers repeatedly dragging victims back to court and a new investigative court process to reduce conflict.
Currently, the presumption of ‘parental involvement’ which the courts are required to follow in their judgments encourages a child’s relationship with both parents, unless the involvement would put the child at risk of harm. The Harms Report found this presumption ‘detracted from the focus on a child’s welfare and safety — causing harm to children in some cases’.
Justice Minister Alex Chalk said:
“We are determined to strike the right balance between making sure children are safe while ensuring they have the best possible family life. This is a complex area and any action we take following this review must be rooted in solid evidence. That is why it’s so important we take the time to look at this thoroughly.”
Recovering in the Civil and Family Courts
The number of cases completed in the family court is now returning to pre-Covid levels, according to HM Courts and Tribunals Service, whose latest report, COVID-19: Overview of HMCTS Recovery for Civil and Family Courts and Tribunals offers a generally positive overview of how the civil and family courts are coping these days. (A similar report in relation to the criminal courts was published in September: see Weekly Notes, 5 October 2020.) This latest report says:
“There has been little reduction in demand on the Family Court since the pandemic began, and in some regions, we have seen demand increase. Where suitable, many hearings were heard remotely and we achieved planned levels of judicial sittings, with record number of sittings in June and July 2020. We have also reopened hundreds of courtrooms enabling far more cases to be heard face-to-face.”
The report goes on to record that “Throughput in probate exceeded pre-COVID levels in the four weeks to 20 September 2020”, which may be explained by the dismal fact that “The higher death rate during the pandemic has increased demand for probate services”.
In relation to civil litigation,
“Final hearings of tracked claims are expected to return to pre-COVID levels by autumn. We have introduced new procedures for possession hearings as we prepare for increased levels of demand now the stay on possession hearings has been lifted. We have made extensive use of video and audio technology, and reopened around 600 courtrooms so we can sit more than half of future hearings face-to-face.”
Unlike Crown Court trials, which require a jury, civil courts have not had to depend on “Nightingale” courts, though the report does point out that competition for resources between family and civil courts and the criminal courts may result in “capacity pinch-points”. Where “additional capacity … required to support recovery in crime … displaces civil, family or tribunal capacity we will mitigate the impact where appropriate through Nightingale courts.”
However, while they may be used in civil courts to deal with the backlog, there are currently “no plans to introduce COVID Operating Hours in the family courts”.
Supreme Court Justice recruitment
The proposed early retirement of Lady Black of Derwent from the Supreme Court bench in January 2021 will reduce still further the number of women on the UK’s highest court (it was three just before Lady Hale retired), but it has made the recruitment of at least one racially or ethnically more diverse candidate possible.
A dedicated section of the Supreme Court website has been set up to promote the vacancy and to explain the selection process, as well as to host information for prospective candidates. In a recent BBC interview, the current President of the Supreme Court, Lord Reed, told legal correspondent Clive Coleman he hoped a justice from an ethnic minority background would be appointed “before I retire which is in six years’ time.” One would certainly hope so. But even if a more ethnically diverse candidate were not to be selected from the UK’s own jurisdictions in this round, there is a way the court could be made to operate in a more diverse way, and that is by adopting the policy (more commonly done in the past than now) of inviting a senior justice from one of the overseas jurisdictions currently or formerly served by the Judicial Committee of the Privy Council to sit with the Board for a term or so.
For more on this, see
- via LinkedIn: Judicial diversity and common law collaboration
- Obiter J, Recruitment to the Judiciary
- Guardian, UK supreme court could be left with only one female justice
- Clifford Bellamy, via ICLR: What Do We Know About This Judge?
New chambers forged online
Legal Futures reports on the formation of a new set of chambers, Crucible Law , headed by Neil Hawes QC. It has emerged, phoenix-like, from the closure of Charter Chambers, which announced it would close at the end of October, citing as causes of its demise the pending sale of its office building together with the impact of Covid-19 on the justice system and the government’s lack of support for legal professionals. Crucible declares itself as adopting a “modern, creative and agile approach” to its specialist areas of financial and serious crime, professional discipline and regulatory law. “We have learned from the challenges the pandemic has posed for businesses, both financially and organisationally.”
Diversity and opportunity
Unsurprisingly, a research report by the Bar Standards Board has revealed, or rather confirmed, that female barristers and barristers from ethnic minorities are likely to earn less than male and white barristers respectively. Black African and Asian Bangladeshi were particularly low-earning groups, with a median income band of £30–60,000, compared to £90–150,000 for White barristers.
Read the report: Income at the Bar — by Gender and Ethnicity
Meanwhile, a national law firm is considering the use of a ‘blind’ work allocation scheme to ensure that the decisions it makes about how to distribute work are free from bias on the grounds of factors such as gender, according to Legal Futures. Virginia Clegg, senior partner of DAC Beachcroft, said the aim was to ensure decisions on how work is allocated to teams of lawyers depended on factors such as their capacity to do it, rather than decisions made at a “personal level”.
Legal Futures: Leading firm considers ‘blind’ work allocation scheme
Pro Bono Week 2020
The overarching theme of Pro Bono Week UK, 2 to 6 November 2020, was “Pro bono: Through the pandemic and beyond“. Events were designed to highlight and explore the following three key areas:
- Celebrating pro bono > events celebrating those who give back and recent successes in pro bono
- Pro bono pathways > events exploring different ways lawyers can volunteer throughout their careers
- Effective pro bono > events sharing best practice and discussing what makes an effective pro bono service
In the Law Society Gazette, David Lammy MP, shadow justice secretary, wrote about the need for a national pro bono network: In the pandemic, pro bono work has never been more vital. He said:
“there is a glaringly absent national pro bono framework in the UK. We can look to the United States for inspiration. The Anti-Racism Alliance has brought together more than 240 US-based law firms, acting as an ‘air-traffic control’, to improve the availability and accessibility of pro bono work. The UK is crying out for similarly coordinated hubs that operate on a local, regional and national level. These could serve as rallying points, both visible and vocal, and become ‘go-tos’ for those needing advice. Crucially, these need to work beyond the M25, bridging the city and town divide in legal advice.”
Dates and Deadlines
Mental Wellbeing in the Legal Profession
Online survey — open now
The International Bar Association (IBA) has embarked on a global project aimed at addressing the mental wellbeing of legal professionals as Covid-19 exacerbates tensions in professional and personal lives. The key initial phase of the project consists of two global surveys — one for individual lawyers, the other for law firms and other legal institutions, including bar associations, law societies and in-house legal departments. Available in both English and Spanish, the surveys are anonymous and take approximately ten minutes to complete.
- The IBA Individual Lawyer Wellbeing Survey can be accessed here.
- The IBA Institutional Wellbeing Survey is available here.
Grays Inn Mixed Messes talk on Nuremberg War Trials
Grays Inn (online via Zoom) — 12 November 2020–18:00 to 19:30
As this year is the 75th Anniversary of the start of the Nuremberg War Trials, a lecture will be delivered by the Treasurer who will give an introductory talk, setting the scene for the trials and will focus on the Gray’s Inn lawyers who were involved in the trials.
Digital Interventions in Criminal Justice Settings
18 and 19 November 2020 — 16:00 GMT
Justice in the Digital Age is a new conference series examining the latest technological developments in the justice sector, and how they are helping to improve support for service users and staff.
We will be bringing together experts from three continents to discuss the future of digital innovations in the global justice sector.
The first conference in the series, Digital Interventions in Criminal Justice Settings, will examine how digital approaches have increased the impact and reach of intervention programmes in justice settings across the world.
‘The Law and the Media: Maintaining Justice’
Society of Editors — Thursday 19 November 2020 at Noon
‘The Law and the Media: Maintaining Justice’ will form the basis of the Lord Chief Justice’s In Discussion With… talk with the Society of Editors (SoE) as part of the Society’s Virtual Conference for 2020.
Doughty Street Chambers Children’s Rights Group Annual Children’s Rights Lecture, 2020
Thursday 19 November 2020, 15.00–16.30 GMT (online)
The Children’s Rights Lecture 2020 will be jointly delivered by Bruce Adamson, Scottish Commissioner for Children and Young People, together with one of his young advisors, Beccie White. Reflecting recent developments in Scotland in terms of the pending full and direct incorporation of the UN Convention on the Rights of the Child into Scottish law, as well as the pressing need to encourage such advances in other parts of the UK, they will be speaking on the topic of advancing children’s rights in the UK.
The lecture will be chaired by the Rt Hon the Baroness Hale of Richmond and will be online. There will be a panel discussion and Q&A with the audience. The panellists will be:
- Louise King and a young person from the ChangeIt! campaign, Children’s Rights Alliance for England (CRAE)
- Professor Simon Hoffman, Swansea University
- Shu Shin Luh, Doughty Street Chambers
- Professor Aoife Nolan, Doughty Street Chambers and University of Nottingham
To book your place, please click here.
PI Futures Conference 2020
Daily sessions — 23 to 27 November 2020
This year’s PI Futures conference will run online as one session a day over the course of one week. Sessions cover the whiplash reports, scheduled to come into force in April 2021, along with other issues affecting personal injury litigation. See full programme and booking form via Legal Futures.
Family Law Awards 2020
Online at 3.30pm — Wednesday 25 November.
The LexisNexis Family Law Awards will now take place as a free virtual awards ceremony. Please click here to see Family Law Awards 2020 shortlist.
Tweet of the week
is from Republicans for the Rule of Law, supporting the idea of counting votes in a democratic election (something not all Republicans appear to support).
If you’re still losing sleep, try counting sheep.
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.