The rule of law
The Lord Chancellor‘s prayer
“As a new legal year begins, my mind turns to the enduring success of our legal system over the centuries, with judicial independence and the Rule of Law at its heart.
When I took my oath of office in both English and Welsh, I swore to uphold and respect these principles. Principles which act as guardians of fairness in our society. In many ways, my role is right at the frontline, where the law meets policy and policy meets the law. There will be tensions at times, which can be frankly, difficult to resolve. …
As Lord Chancellor I will of course tackle sensible criticism head on but, ultimately, my focus will remain on discharging my duties in accordance my oath.”
— Robert Buckland QC MP, in his speech at Temple Church for the Opening of the Legal Year Service. His comments were understood to be a veiled or coded response to criticism (mainly from lawyers) of his apparent lack of opposition to the government’s explicit threat to enact provisions in the UK Internal Markets Bill empowering ministers to make regulations in breach of the Withdrawal Agreement and Northern Ireland Protocol signed as a treaty with the European Union last December.
The threat to breach international law, albeit in a “specific and limited way”, was acknowledged by the Secretary of State for Northern Ireland, Brandon Lewis in Parliament. According to Mark Elliott, on the Public Law for Everyone blog, “whatever spin other Ministers may have attempted to apply to this matter, there can be no doubt that the Bill, if enacted, would flagrantly breach the UK’s obligations under international law.” He has written a number of posts on the Bill, as have others, including the following :
- Mark Elliott: The Internal Market Bill — A Perfect Constitutional Storm
- Mark Elliott: The Internal Market Bill: My evidence to the House of Lords Constitution Committee
- Mark Elliott: One step forward, two steps back? Judicial review and the Government’s amendments to the Internal Market Bill
- Sean Molloy: Breaking international law: the UK is biting off its nose to spite its face
- David Allen Green: The Anatomy of a Potential Constitutional Crisis — Part III — the Failure of the Gatekeepers (with links to earlier posts in the series)
- Ronan Cormacain: The United Kingdom Internal Market Bill and Breach of Domestic Law (UK Constitutional Law Association)
- Kenneth Armstrong: Can the European Commission Secure UK Compliance with the Northern Ireland Protocol? (And why we should be worried if it can)
The threat to breach international law was unacceptable to a number of lawyers working for or with the government or associated agencies, including:
- Sir Jonathan Jones, who resigned as the Treasury solicitor and permanent secretary to the Government Legal Department (see comment by Institute for Government)
- Lord Keen of Elie, who resigned as Advocate General for Scotland, the UK Government’s most senior adviser on Scots law (as reported in The Scotsman)
- Rehman Chishti, who resigned his post as Prime Minister’s special envoy for freedom of religion and belief (as reported in Church Times)
- Amal Clooney, who resigned as UK Special Envoy on Media Freedom, with the support of Lord Neuberger of Abbotsbury and Baroness Helena Kennedy QC (as fellow members of the International Bar Association’s High Level Panel of Legal Experts on Media Freedom)
Nevertheless, the House of Commons passed the bill by 340 votes to 256. A former Attorney General tweeted a reference back to the turbulence of Tudor times:
— Geoffrey Cox QC MP (@Geoffrey_Cox) September 18, 2020
It’s taken from the film of A Man for all Seasons, which is about the life of Sir Thomas More, to some a Christian martyr, to others a secular hero of jurisprudential intransigence.
Scrutiny and review
While the House of Commons prepares to undertake its long promised Six-Month Review of the Coronavirus Act 2020, over the summer months there has been a steady stream of scrutiny of the effects of Covid-19 and the lockdown on the courts, human rights and access to justice, both from committees within parliament and from lawyers’ bodies and public interest groups outside.
The Joint Select Committee on Human Rights recently published their Report on The Government’s response to COVID-19: human rights implications, following an earlier inquiry, part of which looked at issues around access to justice. In July the Commons Justice committee published its report on Coronavirus (COVID-19): The impact on courts and in August the House of Lords Committee on the Constitution concluded its inquiry into the Constitutional implications of COVID-19, part of which looked at the effect on the courts and the impact of virtual proceedings on access to justice, participation in proceedings, transparency and media reporting.
A report from the Civil Justice Council, The impact of COVID-19 measures on the civil justice system found that commercial lawyers were generally keen to continue using remote hearings even after the present crisis has abated. But they found that remote hearings were more problematic for litigants in person and those with accessibility issues, with access to face to face support no longer available. Though efforts have been made by HMCTS to provide support for those joining remote hearings, people may need to access the internet to find it, and telephone support may not be available at the point of need, particularly if that need is a hearing already being conducted by telephone. A recent review of HMCTS face-to-face digital support provided in conjunction with the Good Things Foundation found users ‘overwhelmingly positive’ about their experience, but the pilot dates mainly from before the lockdown, and has been extended in order to cover the necessary adaptation to remote support.
In family cases the Nuffield Family Justice Observatory report from a Rapid Consultation conducted in April had said that “significant concerns” had been raised over the fairness of remote hearings. It said “not having face-to-face contact made it difficult to read reactions and communicate in a humane and sensitive way” and highlighted “the difficulty of ensuring a party’s full participation in a remote hearing”.
In a report entitled The Road Ahead in July Sir Andrew McFarlane, President of the Family Division said that after an initial dip at the beginning of the lockdown, receipts in the Family Court had continued at normal levels overall, but had “risen significantly in certain areas, such as domestic abuse injunctions”. Inevitably there had to be compromises in what could be managed.
“The need to achieve finality in decision-making for children and families, the detrimental effect of delay and the overall impact on the wider system of an ever-growing backlog must form important elements in judicial decision making alongside the need for fairness to all parties.”
A report in July by the House of Commons Justice committee, Coronavirus (COVID-19): The impact on courts, drew attention to the impact of the lockdown on criminal justice. The backlog of Crown Court cases, which already stood at over 37,000 at the end of 2019, had increased to 46,467 by the end of August 2020. On the same date, there were 517,782 cases awaiting disposal in the magistrates’ courts.
Beyond the court system, social distancing measures have changed the way in which people are able to access legal advice, the Law Society points out in its recent report, Law Under Lockdown. “For those who are living in institutionalised settings, such as prisons, immigration detention centres, mental health units or care settings, this is particularly important.” Such institutions were unable to meet the sudden increased demand for telephone and video conferencing services, creating a barrier to accessing legal advice for those living within them.
See also: Parliamentary Scrutiny of Coronavirus Lockdown Regulations: A Rule of Law Analysis, by Ronan Cormacain
Independent Panel launched
The government officially launched its Independent review of administrative law, as promised in the Conservative Party Manifesto before the last general election. A panel of experts “will consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government”.
The panel will be chaired by Lord Edward Faulks QC and its members will be Professor Carol Harlow QC, Vikram Sachdeva QC, Professor Alan Page, Celina Colquhoun, and Nick McBride.
The opposition are not fans of the plans, which were compared to “anti-democratic measures taken by the Hungarian and Polish governments”, by Shadow Lord Chancellor David Lammy MP and shadow Attorney General Lord Falconer. They said people should be “just as outraged” at the plans as they have been by a Hungarian law undermining the independence of the country’s judiciary, and a Polish law making it possible for judges to face disciplinary measures for rulings the government does not like, according to a report in Litigation Futures.
by David Allen Green (The Law and Policy Blog): The government is looking at judicial review
by Mark Elliott (Public Law For Everyone):
- The Judicial Review Review — I: The Reform Agenda and its Potential Scope
- The Judicial Review Review II: Codifying Judicial Review — Clarification or Evisceration?
- The Judicial Review Review III: Limiting judicial review by ‘clarifying’ non-justiciability — or putting lipstick on the proverbial pig
Recovery in the Criminal Courts
At a webinar given on 23 September, HMCTS explained how they have made huge strides in expanding capacity to deal with the growing backlog (see item above) in criminal trials. Perspex screens and Portacabins have been added to existing court buildings to enable them to be used safely for jury trials. They are also operating nine “Nightingale” courts, with a further eight on the way. These have been created by temporarily converting other public buildings, the most recent of which include a branch of the aptly named Jury’s Inn, and a theatre (perhaps signalling a return to the more dramatic style of advocacy made famous by historical barristers such as Edward Marshall Hall QC).
Less popularly with the legal professions, HMCTS are now proposing to run extended “Covid operating hours”, on the basis that each court would operate one list in the morning (starting earlier) and another list in the afternoon (ending later), plus some hearings (for cases requiring fewer lawyers) on Saturdays. Saturday sittings in magistrates’ courts would also be extended.
For more details, see their latest update pdf: COVID-19: Update on the HMCTS response for criminal courts in England & Wales and this one on the COVID-19 Operating Hours Crown Court Pilot
Custody time limits extended
Justice delayed is justice denied. One of the harshest effects of the increased delay has been the extension of periods of pre-trial incarceration. Custody time limits have been temporarily increased by 56 days, under the Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 2020 (SI 2020/953), which came into effect on 28 September 2020.
These provide for CTLs to be extended from 182 to 238 days for cases sent for trial and from 112 to 168 days for cases where a voluntary bill of indictment has been preferred or a fresh trial ordered by the Court of Appeal. Though this may be justifiable by reference to the pandemic, much of the need for this potentially oppressive measure was caused by the existing trial backlog.
The legislation follows a ruling given by Judge Raynor at Woolwich Crown Court in August, refusing to exercise the court’s discretion to extend the limit in a particular case because, in view of a lack of appropriate investment by the government, the lack of available courtrooms was not a sufficient justification for doing so. This case was the subject of a thread by the Secret Barrister.
White paper published
At its launch last month, A Smarter Approach to Sentencing, was described as a plan “to crack down on crime and protect the public by ensuring dangerous criminals are kept in prison for longer”. The Lord Chancellor Robert Buckland QC MP said it represented “a fundamental shift in our approach to sentencing. Among the key proposals were
- Whole life Orders for child killers, as well as allowing judges to hand out this maximum punishment to 18–20-year olds in exceptional cases to reflect the gravity of a crime. For example, acts of terrorism which lead to mass loss of life.
- New powers to halt the automatic release of offenders who pose a terrorist threat or are a danger to the public.
- Reducing the opportunities for over 18s who committed murder as a child, to have their minimum term reviewed — ensuring they cannot game the system and torment victims’ families further.
- Ending the halfway release of offenders sentenced to between four and seven years in prison for serious crimes such as rape, manslaughter and GBH with intent. Instead they will have to spend two-thirds of their time behind bars.
- Increasing the starting point for determining sentences for 15–17 year olds who commit murder from a minimum of 12 years to two thirds of the equivalent starting point for adults. It will ensure that the seriousness of the offence is taken into account and there is less of a gap between older children and young adults.
- Longer tariffs for discretionary life sentences. Increasing the minimum period that must be spent in prison by requiring judges to base their calculation of the tariff on what two-thirds of an equivalent determinate sentence would be, rather than half as they do now. This will mean life sentence prisoners serve longer in prison before they can be considered for release by the Parole Board.
- Raising the threshold for passing a sentence below the minimum term for repeat offenders, including key serious offences such as “third strike” burglary which carries a minimum three-year custodial sentence and “two strike” knife possession which has a minimum six-month sentence for adults. Making it less likely that a court will depart from theses minimum terms.
- Piloting Problem Solving Court models in up to five courts, targeted at repeat offenders who would otherwise have been sent to custody.
- Making full use of tagging technologies to create a tough restrictive order in the community.
Many of these seem to be targeted responses to recent public or media-fomented outcries about particular cases or individuals, but the idea of problem solving courts seems worthwhile (and long overdue), and the use of technology to monitor offenders on licence or community sentences is a sensible development that might justify the tag (so to speak) of “smart” sentencing.
- Robin Allen, via Unlocking Potential: A Game of Two Halves
- Centre for Justice Innovation report: Smarter Community Sentences
- Russell Webster, Smarter Community Sentences ( commenting on the Centre for Justice Innovation report)
- The Justice Gap: Sentencing reforms: Talking tough to distract from collapsing justice system
- Joshua Rozenberg, Not so tough after all (on why Robert Buckland’s sentencing reforms are more balanced than expected)
Remote witnessing legislation
Earlier in the year the government announced that it would be introducing legislation to allow people to use video-conferencing technology for the witnessing of wills being made during the Covid 19 pandemic and issued guidance to help them do so. (See Weekly Notes, 27 July 2020 and, via Lawyer2B, Where there’s a will there’s a (remote) way: witnessing wills in the time of coronavirus)
That legislation has now been enacted, in the form of The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 (SI 2020/952). This basically amends the Wills Act temporarily to permit the use of electronic means to achieve the necessary “presence” via video, when witnessing another person’s signature.
Brian Sloan, Lecturer in Law, University of Cambridge, explains how it works in Coronavirus and the Electronic Witnessing of Wills: The Legislation Analysed (via the University of Oxford Faculty of Law blog).
See also: Alex Ruck Keene, via Mental Capacity Law and Policy, Remote witnessing of wills — legislation now before Parliament
New Family, Drug and Alcohol Court
The UK’s tenth Family, Drug and Alcohol Court (FDAC) was launched last week in the Midlands. The Black Country FDAC, which covers the Walsall, Sandwell and Dudley areas, was officially opened on Monday 28 September.
First piloted in London in January 2008, FDAC teams now work in 13 venues serving families in 20 local authorities. In each of the 10 courts, a specialist multi-disciplinary team works closely with the judge and other professionals to provide intensive treatment and support for parents wishing to turn their lives around, helping them abstain from drugs and alcohol, thus enabling more children to be reunified with their parents.
Running alongside the launch of the Black Country FDAC is the launch of the FDAC National Advisory Board, which met last week for the first time.
See also the national website of the Family, Drugs and Alcohol Courts.
45 years of the Family Law Act 1975
To mark this anniversary, CCH Australia Ltd have published a special edition of its Family Law Cases (FLC) series containing 60 of the most significant and most frequently cited cases from the last 45 years. The cases were chosen by a panel led by the Deputy Chief Justice of the Family Court of Australia, the Hon Robert McClelland, and have been divided into 30 different family law topics such as Jurisdiction, Procedure, Spousal Maintenance, Children, Financial Agreements, Property, Tax and so on. The volume reproduces the full text, or in some instances an edited text, of Australian Family Law Cases, including child support cases, decided by: the High Court of Australia, Full Court of the Family Court of Australia, Family Court of Australia, Family Court of Western Australia, Federal Circuit Court of Australia and the state Supreme Courts.
Australian Family Law Cases Anniversary Edition 1975–2020 was launched on 30 September 2020 in a special webinar presented by Sue Ann Yap, Special Liaison to the Family Court of Australia. Speaking at the launch, the Chief Justice of the Family Court of Australia, the Hon William Alstergren said the selection of cases for reporting was an important exercise of quality control. The sheer volume of material now published electronically could sometimes overbear the tracing of legal principle as it evolved and it was important to celebrate these milestones in the incremental development of the law.
Sherika Ponniah, Deputy Head of Legal Content at Wolters Kluwer said the idea had been to curate the most significant and frequently cited cases of the past 45 years, and to create a handy reference to key legal principles via case law against key topics while celebrating CCH’s long history with the Family Court of Australia.
Supreme Court justice(s)
The liberal icon of progressive justice, Ruth Bader Ginsburg, died last month, at the age of 87 and the longest serving female justice of the US Supreme Court. Her life and career have been the subject of two films, the lightly fictionalised On the Basis of Sex (which we reviewed here last year) and the documentary RBG (see official trailer), which came out the previous year.
See also: A Life’s Work: Justice Ruth Bader Ginsburg, by Ruby Peacock on the UK Human Rights Blog.
President Trump moved quickly to nominate a successor, plumping for Amy Coney Barrett, a judge on the US Court of Appeals for the Seventh Circuit in Illinois. She was also a professor of law at Notre Dame Law School. According to her Wikipedia entry, she once clerked for Justice Antonin Scalia, and has spoken and written of her admiration of his adherence to the text of statutes and to originalism. (In other words, she is probably not going to be a liberal icon of progressive justice. But let’s not prejudge this judge.)
Barrett is the third SCOTUS judge nomination made by this POTUS, who has also nominated a number of less senior federal court judges during his term. This week the President has been coping with coronavirus. Nor is he the only one. At least eight other attendees of the recent White House nomination ceremony for Judge Barrett have now tested positive for Covid-19, including Trump’s wife Melania and former governor of New Jersey Chris Christie. Even if he recovers his health, it seems unlikely he will fully recover his earlier electoral gains. But again, it may be too early to judge.
blog posts and articles on various topics…
- Justice Matters launch: ‘No return to the status quo’ (collection of essays published by Legal Action Group, reviewed on the Justice Gap blog)
- Scott Wortley, via Medium: Where does legislation come from? Policy formulation to drafting.
- Sarah Phillimore, via Bar Council Guest blog: Life as a disabled barrister
- Bloomsbury Professional Family Law blog, Conjugal Rites and Rights (Paul Magrath of ICLR looking at some more of the curiosities of ancient matrimonial law, as revealed in the Law Reports)
- Lucy Reed, via Transparency Project: The Harms Report (parts 1 to 3)
- Joshua Rozenberg, A clean slate after five years (on limitation of prosecutions against serving or former members of the armed forces arising out of their deployment in overseas operations)
- David Cabrelli and Jessica D’alton (via UK Labour Law) Law Frustration and Redundancy in the Context of Covid-19 Furlough
- Rosalind English (UK Human Rights Blog) A bonanza of C-19 challenges (looking at claims in the USA and elsewhere) and see also her earlier post, Face masks in Strasbourg
Dates and deadlines
Term dates for the new legal year
Michaelmas 2020: Thursday 1 October to Monday 21 December 2020
Hilary 2021: Monday 11 January to Wednesday 31 March 2021
Easter 2021: Tuesday 13 April to Friday 28 May 2021
Trinity 2021: Tuesday 8 June to Friday 30 July 2021
Tweet of week
is from Barbara Rich, commenting on a son’s claim that “the bank of mum and dad” had a legal obligation to maintain him, even as a 41 year old adult, which was comprehensively dismissed in the judgment of Sir James Munby (now retired, but sitting as a High Court judge) in FS v RS and JS  EWFC 63 (30 September 2020).
The claim for a positive obligation of maintenance arising out of the High Court’s inherent jurisdiction in relation to vulnerable adults was particularly adventurous, well away from the coastline and deep into the rainforest of uncharted legal territory
— Barbara Rich (@BarbaraRich_law) September 30, 2020
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.