The Weekly Round-up: More restrictions and court backlogs

In the news:

On Monday 23^rd November, a self-isolating Boris Johnson announced a new system of restrictions to replace the UK’s second month-long lockdown, due to come into effect on Wednesday 2^nd December. The new set of rules represents a stricter and no less confusing version of the old three-tiered system. 

Non-essential shops, gyms, and hairdressers will be allowed to reopen across the country. People are still encouraged to minimise travel and to work from home where possible. The following additional tiered restrictions will apply:

• Tier 1 (Medium Risk):
  • The ‘Rule of Six’ will apply for both indoor and outdoor gatherings
  • Pubs and restaurants must shut at 11pm
  • Limited numbers of spectators may be permitted at sports and music events

• Tier 2 (High Risk):
  • People from different households may not meet indoors
  • The ‘Rule of Six’ will apply for outdoor gatherings
  • Pubs and restaurants must shut at 11pm
  • Alcohol can be served only alongside a substantial meal

• Tier 3 (Very High Risk):
  • People from different households may not mix indoors or outdoors in hospitality venues or private gardens
  • People from different households may only mix in public spaces like parks, where the ‘Rule of Six’ will apply
  • Pubs and restaurants must close except for takeaway and delivery services
  • Travelling into and out of the area is discouraged

The government’s postcode checker can be used to identify which tier applies in a given local area. Chancellor Rishi Sunak’s insistence that the new rules represent a ‘tangible change compared to the last four weeks’ will provide little consolation to the 23.3 million people in England set to transition from lockdown to the harshest tier of restrictions on Wednesday. 

Lockdown fatigue certainly reared its head in the days following the announcement. Leader of the Opposition Kier Starmer expressed his concern at PMQs on Wednesday, questioning the predicted efficacy of any new restrictions in the absence of a well-functioning test and trace system. Harsher criticism came a day later from the Prime Minister’s own party when Steve Baker, who co-chairs the 70-strong Conservative Covid Recovery Group, averred that ‘the authoritarianism at work today is truly appalling.’ A number of Baker’s backbench colleagues questioned the logic by which their constituencies exited lockdown under a higher risk category than they entered with. Johnson, for his part, could only implore the public to make ‘one final push’ into the Winter months, keeping everything crossed for the vaccine roll-out in the meantime.

In other news:

• The Equality and Human Rights Commission confirmed what many already expected this week when it published its Windrush scandal report on Wednesday. The Home Office failed to comply with equality law when administering its ‘hostile environment’ policy agenda. The damning report finds that ‘negative consequences were repeatedly ignored, dismissed, or their severity disregarded at crucial points of policy development,’ and that ‘there was limited engagement with representatives of the Windrush generation, even as the severe effects of hostile environment policies began to emerge.’
• Two days later, on Friday, the Bar Standards Board published an anti-racist statement, developed in collaboration with barristers and BSB members of the regulator’s Race Equality Taskforce. The statement outlines four anti-racist actions to be implemented by barristers’ chambers and other BSB-regulated entities:
  • complete a race equality audit to identify the barriers to race equality within a practice;
  • design and implement positive action measures, where the audit shows that there is an underrepresentation of, or adverse impact on, people from Black, Asian and Minority Ethnic backgrounds;
  • undertake comprehensive anti-racist training for all barristers and staff; and
  • produce and publish an anti-racist statement for members of chambers and the public.
• Access to justice campaigners welcomed Chancellor Rishi Sunak’s new Spending Review unveiled in Parliament on Wednesday, which included a pledge of £337m in extra funding for the criminal justice system. Law Society President David Greene praised the Review as ‘good news’. Bar Council Chair Amanda Pinto QC called it a ‘ray of hope’. Both, however, were quick to warn that much more still needs to be done in order to redress the colossal backlog of crown court cases exacerbated by the pandemic – not least given that the justice system will now have to shoulder the downstream impact of 20,000 new recruits to police forces across the country, which made for some of the biggest winners in the Review. No pledges were made for increases in legal aid spending, and overseas aid was cut by a third.

In the courts:

• Last week’s round-up previewed the Home Secretary’s appeal to the Supreme Court in Shamima Begum’s case. The Court of Appeal had ruled that she should be given leave to enter so that she could participate meaningfully in a legal challenge to the removal of her British citizenship. The appeal was heard on Monday and Tuesday.  Lord Pannick QC, representing Begum, warned of procedural unfairness, explaining that his client had hardly been able to talk with her legal team due to the oppressive conditions of the Syrian detention camp in which she is currently held. The Home Office’s riposte, delivered by Sir James Eadie QC, came in the form of an MI5 risk assessment, which insists that Begum continues to pose a national security threat. 1COR’s Angus McCullough QC acted as her Special Advocate. Only a day after the appeal was heard, the London-based charity Rights and Security International released a damning report, which condemned ‘the UK’s systematic policy of depriving women in the camps of their citizenship.’ The practice, it warned, is ‘at risk of developing into a long-running human rights disaster.’
• Article 39, R (On the Application Of) v Secretary of State for Education [2020] EWCA Civ 1577 (24 November 2020): The Court of Appeal unanimously held that the Secretary of State for Education, Gavin Williamson, had acted unlawfully in failing to consult the Children’s Commissioner for England and other children’s rights organisations before introducing The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 on 23^rd April, which made a range of temporary amendments to ten statutory instruments governing the children’s social care system. In allowing the appeal from children’s rights charity Article 39, Lord Justice Baker declared that the changes to legal protections were ‘unquestionably substantial and wide-ranging and, when implemented, had the potential to have a significant impact on children in care.’ The judgment was delivered on the very same day that the Children’s Commissioner accused the state of being a ‘bad parent’ for failing thousands of vulnerable children.
• G.R., R (on the application of) v Director of Legal Aid Casework & Anor [2020] EWHC 3140 (Admin) (24 November 2020): The High Court ruled that the Legal Aid Agency must not automatically deny financial support to victims of domestic abuse who jointly own property with their abuser on the grounds that they have access to capital that is in practice ‘trapped’. This strategic litigation was brought by Public Law Project, supported by the Law Society. ‘G.R.’ was refused civil legal aid in 2019 despite having only £28 in her bank account because she had interest in a £650,000 London house co-owned with her allegedly abusive ex-partner. The Court identified a tension in statutory regulations for legal aid assessments, which demand careful interpretation in order to comply with Article 6 and 8 convention rights. In The Civil Legal Aid (Financial Resources & Payment for Services) Regulations 2013, regulation 31 offers guidance for estimating the equitable value of seemingly all ‘resources of a capital nature’, while regulation 37 takes a stricter approach to the market value of ‘interests in land’. It was held that the general rule in regulation 31 need not yield to the specific rule under regulation 37, permitting the director discretion to attribute a reduced or no value to assets that the applicant cannot in practice use to fund litigation. To hold otherwise, the Court considered, ‘would prevent some people on low incomes who cannot access the equity in their homes from having fair and effective access to justice.’

On the UKHRB:

• 1COR’s Shaheen Rahman concludes her three-part analysis of important recent authorities relating to Article 2 ECHR and the provision of healthcare.
• 1COR’s David Hart QC takes an in-depth look at two insurers’ successful Protection of Property claim concerning benefits reimbursement in asbestos claims.
• And Michael Rhimnes explains a recent judgment in the Constitutional Court of South Africa and what it means for intersectionality and equality in the country.