The Weekly Round-Up: Happy (Legal) New Year!

5 October 2020 by Alethea Redfern

In the News:

On 1 October 2020, the Lord Chancellor, Robert Buckland QC, gave a speech at Temple Church to mark the opening of the legal year.  He praised the “enduring success” of our legal system, our “healthy democracy”, and the “commitment to the Rule of Law” which steered the government’s response to the coronavirus pandemic.

The Lord Chancellor delivered his speech two days after the controversial Internal Market Bill cleared its final hurdle in the House of Commons with ease, by 340 votes to 256. Earlier in September, Brandon Lewis, the Northern Ireland secretary, told the House of Commons that the government’s plans would “break international law in a very specific and limited way.” On September 29, the Lord Chancellor voted against a proposed amendment to the Bill “requiring Ministers to respect the rule of law and uphold the independence of the Courts.” He was joined in doing so by the Attorney General, Suella Braverman, and the Solicitor General, Michael Ellis.

The speech came just after Parliament voted to extend the government’s sweeping emergency powers by 330 votes to 24, following Health Secretary Matt Hancock’s promise to let MPs vote “wherever possible” on coronavirus rules (without going into specifics). This outcome illustrates the inefficacy of a plea made by Baroness Hale, former President and Justice of the Supreme Court, for the United Kingdom to return to parliamentary scrutiny and a “properly functioning Constitution as soon as we possibly can”.

Since the Lord Chancellor’s speech, Home Secretary Priti Patel condemned “do-gooders” and “lefty lawyers” in the same breath as “traffickers”, and vowed to tighten up the asylum system. The Home Secretary is understood to believe that lawyers are clogging up the judicial system by challenging deportations. Whilst the Home Secretary pointed to “decades of inaction by successive governments”, it may also be noted that the Conservative Party has been in government as part of a coalition since 2010 and as the sole governing party since 2015. Significant cuts to the funding of the justice system are also very likely relevant to the backlogs in the courts. Amanda Pinto QC, Chair of the Bar Council, fired back earlier today with this riposte: “It is not the job of lawyers to limit Parliament’s own laws in a way that the Government of the day finds most favourable to its political agenda.”

The Lord Chancellor characterised his role as poised “on the frontline, where the law meets policy and policy meets the law.”

But the past month has made the extent to which the role has diminished under the Constitutional Reform Act 2005 painfully obvious. The 2005 Act asserted that the officeholder would no longer act as head of the judiciary, nor have an integral role in the appointment of judges, nor act as speaker in the House of Lords. As Jake Richards wrote earlier this year in Prospect Magazine, what was once a key constitutional office has, in recent years, been filled by “officeholders [who] have shown at best ignorance and at worst contempt for their duties.”

We usher in the new legal year with many restrictions still in place, and the distinct possibility of more to come before the calendar year ends. The outbreak of Covid-19, the spectre of Brexit and the impact of 30% cuts in budgets at the Ministry of Justice over the last decade cause acute constitutional concern to many in the profession. The Lord Chancellor’s speech may not allay these fears.

In Other News:

• The Times has criticised judges who might have handed down shorter sentences since April, when the Court of Appeal ruled in Manning [2020] 4 WLR 77 that judges should “keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be.” The Sentencing Council published a note highlighting the decision at the end of June. The change in approach followed well-publicised revelations that many inmates have been kept in their cells for 23 hours a day. Among other shortcomings, an August report by HM Chief Inspector of Prisons found that social distancing measures left some prisoners without access to a shower or fresh air for weeks.
• In his first media interview since assuming the role of President of the Supreme Court, Lord Reed called the treatment of barrister Alexandra Wilson “appalling”. Wilson, who is mixed-race, has been in the news recently after being mistaken for a defendant three times in the same morning at a magistrates’ court. Lord Reed expressed hope that a justice from a black, Asian or minority ethnic background would be appointed to the court within the next six years.
• The Legal Service Board announced that its review of the quality of the Bar Standard Board’s decision-making would not include the recent, controversial and technically troubled BPTC examinations. The examinations are a source of ongoing disruption and confusion for many, as some traditional “pen and paper” re-sits for those affected have now been cancelled due to Covid-19 restrictions.
• Under cross-parliamentary proposals brought by MPs and peers, human rights campaigners would for the first time be able to seek redress on behalf of Uighurs and other Muslim minorities for cases of alleged genocide in China, ahead of the issue being determined at the UN. A report from last week found that China has now built nearly 380 internment camps in Xinjiang. The human rights minister Lord Ahmad has called for international observers to be given unfettered access to the region in light of “compelling evidence […] of systemic human rights violations”.

In the Courts:

• FS v RS and JS [2020] EWFC 63: in a “most unusual case” in the family court, Sir James Munby held that the 41-year old applicant, son of the respondents, was not entitled to financial relief against them. The applicant had not made good his case that article 6, 8, 14 or protocol 1, article 1 of the European Convention were engaged. The court had no jurisdiction to grant relief under the Matrimonial Causes Act 1973 Act or the Children Act 1989 Act, and “these provisions were never intended to be used and cannot be used to fund the education of a perpetual student.” A costs order was made against the applicant and his application for permission to appeal was dismissed.
• P v Griffith [2020] EWCOP 46: in an illustration of the change in sentencing approach discussed above, the Court of Protection committed a woman to prison for contempt. She had falsified a court order in an attempt to obtain disclosure of confidential medical records relating to a relative. Handing down an immediate term of 12 months imprisonment, Mr Justice MacDonald stated that the term would have been 18 months but for the fact that the woman had not been in prison before, “and the current impact on the nature of custody of the COVID-19 pandemic.”
• Fatkhutdinov v Russia [2020] ECHR 648: in a case in which the applicant, who considered himself the father of a young boy, had been unable or unwilling to take a paternity test, his complete and automatic exclusion from the boy’s life violated his right to a family life. Article 8 of the ECHR had accordingly been breached.

On the UKHRB:

• In the latest episode of Law Pod UK, environmental experts Mark Avery and Nikki Gammans join solicitor Carol Day for the first of three panel discussions on environmental law.