Brexit

Are we nearly there yet?

As lockdown gradually lifts, and families can once again makes trips to the seaside or visit their friends and relations, the opportunity returns for small children to infuriate the grownup driving the car by asking “Are we nearly there yet?” Some of us may feel like that about Brexit, four years after the fatal referendum vote, on 23 June 2016. Others may feel they never want to get there, and regret having ever got in the car.

We could take the motoring analogy too far, perhaps, and get stuck in a queue at the docks, with our dockets. Let’s not go there. Instead, let’s see what remains to be done.

First of all, we have already left the European Union. That happened on 31 January 2020. We are now in a transition period that will end on 31 December. The UK has made clear it will not seek any extension of time and the EU appears to have accepted that position. So in a matter of a few months we will need to have negotiated a trade deal. Actually, it’s more than that: we will need to have forged a new EU-UK relationship for the future.

How is that going? Not particularly well, it seems. After four rounds of negotiations amid the coronavirus crisis, UK Prime Minister Boris Johnson and EU leaders including Commission President Ursula von der Leyen held a virtual summit in order to break the deadlock. Both sides now speak of a “new phase” of less formalistic negotiations and greater readiness to do business.

Two key issues are fishing rights and the principle of the “level playing field”. The EU wants to see the status quo maintained for fishing access and quotas, but the UK Government wants Britain to have controls of its own waters.

On the level playing field, which is aimed at preventing the UK from undercutting EU standards on issues including workers’ rights, environmental protection and state subsidies, Britain believes Brussels is trying to bind the UK to EU law. A suggestion which may have gained some traction involves the UK being allowed to diverge or adopt different standards from those of the EU on some matters, subject to the EU being able to impose tariffs in response.

The EU is striving to get a deal in place by the end of October, which is about as late as it can get if it is going to be ratified in time for final exit on 31 December. Mr Johnson is said to be hoping for a deal by the end of July, which seems fanciful. In the absence of a deal by either date, the UK faces the prospect of a no-deal Brexit, which could prove even harder to bear after the economic shock of the pandemic. So fasten your seatbelts, kids, this could be a bumpy ride.

Grenfell Tower

Cladding report

Last week saw the third anniversary of the Grenfell Tower fire which, on 14 June 2017, claimed the lives of 72 people. The public inquiry which has been looking into the causes of the disaster is currently adjourned by reason of the pandemic, but in its Phase 1 Report last October it found that the principal reason for the rapid spread of the fire was the use of aluminium composite material (ACM) cladding fitting during a refurbishment of the building. The inquiry chair, Sir Martin Moore-Bick said it was essential that such cladding be removed from other high rise buildings as quickly as possible.

Now the National Audit Office has investigated and reported on the progress of a programme of remediation of dangerous cladding on high-rise buildings instituted by the Ministry of Housing, Communities and Local Government. It has found, among other things, that of the 456 buildings identified within the scope of the programme, only 149 buildings had been fully remediated, leaving 307 which have yet to be fully remediated, 167 of which have seen no work even begin yet. There have been concerns, too, that buildings falling outside the scope of the programme could still pose a risk. Such a building was the Cube, a student accommodation block serving the University of Bolton, which caught fire in November 2019. It narrowly came below the 18m threshold height and had a different sort of combustible cladding (high pressure laminate, or HPL).

Read the report: NAO, Investigation into remediating dangerous cladding on high-rise buildings

Coronavirus

Legislation

Last Monday the The Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020 came into force, having been made on a Sunday (14 June). In common with other Coronavirus statutory instruments, they were made without a draft having been laid and approved by a resolution of each House of Parliament, on grounds of urgency, but they will cease to have effect after 28 days unless, during that period, the instrument is so approved. Moreover, they are expressed to expire in any event a year after coming into force. (Explanatory memo.)

They followed the The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (№4) Regulations 2020 — the fourth edition of the now infamous regulations which have been so unevenly enforced (see Weekly Notes, 1 June 2020) — which brought in amendments designed to permit the opening of retail businesses and certain outdoor attractions, to enable churches to open for private prayer by individuals, to make provision for linked households, and to permit certain gatherings. The more often these and other coronavirus regulations are amended, the harder it is for anyone to know what restrictions are currently in place and, a fortiori (as we lawyers like to say) for the police to enforce them.

There is a useful guided tour of an earlier coronavirus Statutory Instrument by David Allen Green on YouTube (via the Financial Times).

See also his comment on the latest round of regulations: The dangerous daftness of legislative “fine-tuning” and “nudges” — the Coronavirus regulations (Law and Policy Blog)

Open Justice

New Court of Protection resource

The Open Justice Court of Protection Project, launched by Professor Celia Kitzinger and Gill Loomes-Quinn, has begun reporting on cases in the specialist court, which was set up under the Mental Capacity Act 2005 to deal with health, welfare and financial issues affecting persons temporarily or permanently lacking capacity to manage those issues for themselves. As they explain:

“The decisions made by the court on behalf of some of the most vulnerable members of society can be life-changing, and the case law it produces impacts the rights of disabled people far beyond the walls of the court rooms. In 2016, the ‘Court of Protection Transparency Pilot’ was launched with the aim of increasing access to the court for the public and the media (click here to find out more about the Transparency Pilot). The Pilot has since been adopted into court procedure, and provides an avenue for public scrutiny of the court’s work, and an opportunity for health, social care, and voluntary sector professionals whose work is shaped by the Mental Capacity Act 2005 to gain insights into court practice.”

Till now, the main blogging coverage of the Court of Protection has been done by the Transparency Project (to which both Gill and Celia have contributed) and by specialist practitioners, some of them via the Court of Protection Handbook blog. The launch of this new resource which help open the work of the court to a broader readership and is very much to be welcomed. It will provide a less legal focus on the court, with contributors who are not lawyers but are interested in the work of the court. It will also keep the court under scrutiny at a time when many of its hearings are being conducted remotely, and therefore less visibly to the public eye. In the circumstances, Seeing, Hearing and Understanding Justice Being Done seems an apt title for the latest blog post on the new site.

Prisons

Youth custody

The Standing Committee on Youth Justice have published their report, Ensuring custody is the last resort for children in England and Wales. The report’s introduction notes that:

“The principle that custody should only ever be used as a last resort for children is enshrined in domestic law and international human rights conventions. This paper sets out evidence that this principle is not currently applied as such, and recommends potential legislative criteria that could ensure sentencing or remanding children to custody is used as a last resort in future practice.”

Commenting on the report, Russell Webster adds that:

“It also highlighted the worrying trend that as the number of children in custody has declined over the past decade, the over-representation of Black, Asian and Minority Ethnic (BAME) children has worsened to the point that 2019 saw more BAME children in custody than white children for the first time.”

The SCYJ report recommends that:

“The suggested legislative criteria in this paper would ensure that custody is only available for the most serious crimes, where the child poses a serious and continuing risk to the public, and where there is genuinely no way of managing that risk in the community.”

Law Reform

Reimagining the Law, the latest project of the British Institute of International and Comparative Law (BIICL) has involved inviting a range of legal professionals — from practising lawyers to former judges, academics and legal commentators — to reimagine an area of the law or the justice system. The proposals have been interesting. Each day they have been publishing five new ideas. The following is a selection grouped by theme:

On criminal justice and hearing transcripts

Every Court should have a real-time transcription service, like LiveNote, to provide an instantaneous verbatim record of everything said. Hence in summing up in criminal trials, the norm should be a minimal review of the evidence or none, with a direction to the jury to ask if they need reminding of anything.
Francis FitzGibbon QC

At the end of a trial, defendants should be presented with a USB stick with an audio-recording of the entire trial. Trials are digitally recorded anyway; transcripts are prohibitively expensive and (bizarrely) courts destroy recordings after seven years. In one (almost) cost-free move, the courts could increase transparency and provide a lifeline to the wrongly convicted.
Jon Robins

On public legal information

Many individuals cannot afford a lawyer for personal matters, eg family disputes, wills, employment difficulties, putting law out of reach. Legal aid is devastated and is not the answer. Court procedures, tax forms, and other regulatory formalities should be simplified to enable individuals to understand their rights, see what needs to be done and then handle matters themselves.
Julian Lew QC

Adopting the Apple store model, rather than legal advice being provided in a formal hierarchical manner, lawyers should provide a concierge-style service where clients sit down side by side with them in an informal environment where together they work out solutions.
Philip Rodney

Why do we not better educate children about the fundamentals of the rule of law and of our constitution?
The Rt Hon Lord Neuberger of Abbotsbury

There should be a plain English audit of all guidance issued and forms used by central and local government bodies dealing with housing, benefits and immigration claims to ensure that they are easily understood and all personnel dealing with those claims should be trained to be as helpful as possible.
Edward Sparrow

On equality before the law

Magna Carta stands for Equality Before the Law, but ensuring the law protects everyone equally is the Cinderella of Rule of Law principles. To earn the confidence of BAME communities that the Rule of Law is for them, all relevant recommendations should be urgently implemented, starting with Windrush, Lammy, Grenfell and PHE reports.
Murray Hunt

If we thought of discrimination as a virus, we could then incorporate public health approaches into equality law to tackle it. This would mean prioritising treatment at the individual level as well as at the societal and environmental level. Positive action would then become a norm alongside individual litigation.
Iyiola Solanke

On legal theory

We should abandon precedent — at least in areas of significant inequality. Access to justice is typically seen as a problem solved by better dispute resolution or more legal aid. Rule complexity is a large part of the problem. Precedent does not aid decision making to the extent lawyers think it does. We need to think radically about simplification in key areas of law.
Professor Richard Moorhead

Traditionally UK courts do not create new law, merely discover better versions of it. So the old law was never the law and the new version is retrospective. This can be a very costly fiction e.g. Cadder (possibly 600,000 trials), O’Brien (a £2 Billion hole in the MoJ’s Budget), Cheshire West (£2.2 Billion a year). Allowing some UKSC decisions to have a mainly prospective effect would be more realistic, less costly and (occasionally) more democratic.
Professor Alan Paterson OBE

On access to justice

The civil legal aid system should be decentralised and administered regionally. It should no longer fund by reference to individual cases but should mainly fund organisations and develop their capacity and skills. It should ignore time spent on cases but should measure the benefits of its work to the public.
Guy Beringer

Recent news and commentary

Immigration

Last week was Refugee Week. From 15–21 June 2020, the UK celebrates the contribution of refugees to the UK and promotes better understanding of why people seek sanctuary. There’s an explanation and infographic on the Free Movement website, Refugee Week: asylum in the UK, by numbers

See also the Refugee Week website, Theme of Refugee Week 2020: ‘Imagine’

Data protection

Piloted in May, ditched in June: the failure of England’s Covid-19 app, report by the Guardian on how the coronavirus contact tracing app being developed by or for NHSX has had to be abandoned. The app, which uses bluetooth technology to detect the presence of other smartphone users in the vicinity who have reported symptoms, was to have been designed on the “centralised” basis, with data being collected and analysed centrally, with a view to providing a clearer picture of where hot spots might be developing across the nation. Instead, the “decentralised” approach favoured and supported by Apple and Google, whose operating systems most smartphones use, will be adopted. NHSX were warned of the likely problems of running their centralised version with most smartphones but went ahead anyway, wasting valuable development time and a loss of public support, though it is probably fair to say that any eventual non-uptake will be more likely due to apathy and indolence than to informed concern over data protection risks.

We covered this previously in Weekly Notes, 5 May 2020.

See also Lawyer 2B, Contact tracing apps for Covid-19 and data protection concerns

Human Rights

Racism and the Rule of Law (UK Human Rights Blog) Michael Paulin on what he calls the “steady churn of systemic inaction” over “an incontrovertible chasm in the application of the rule of law in liberal democracy”, namely the way that “ in the United Kingdom today Black people are treated as second-class citizens by a system that is meant to protect them”.

Media law

296 days to correct a factual inaccuracy – effective press regulation? asks the Transparency Project rhetorically, with a post discussing their sisyphean efforts to complain about inaccurate reporting of a family case in the Daily Express, and the time it took to get the publisher’s supposed regulator, IPSO, to insist on the publication of a correction.

IPSO have now also published their ruling on the case: 07867–19 The Transparency Project v Daily Express

A new book on press regulation, by Paul Wragg, is the subject of a post by him on Inforrm’s Blog: A Free and Regulated Press: the Case for Compulsory Press Regulation

Parliamentary drafting

Drafting Guidance has been produced by the Drafting Techniques Group of the Office of the Parliamentary Counsel. It is not intended to be a general set of rules for drafting, but rather a sort of internal handbook for the team: “It is meant to help them in their task of making it as easy as possible for readers to understand the Bills that we produce.”

That said, it will be of interest to lawyers, who spend a lot of time drafting things in such a way as to be clear, unambiguous and comprehensive in their writing. Even so, knowing how lawyers write, and how most legislation actually reads (or re-reads, with puzzled frown), it is rather surprising to begin with a paragraph that reads:

“Take readers by the hand and lead them through the story you have to tell. Imagine that you are trying to explain something orally to interested listeners. Where would you start? What will they want to know first?”

Legal professions

What to wear? Court attire for women advocates has apparently not been as well designed as it might have been. But now there is a specialist supplier, Ivy & Normanton, who claim to be

“the first legal outfitter dedicated to courtwear for women. Our designs have been created with the day-to-day experience of female advocates, clerks and judges in mind. That’s why we designed products with an emphasis on comfort, quality and fit.”