Archive for May 2020
Covid-19 and the English Legal System (3): the experience of Judicial Review
As one of a series of items on the impact of the pandemic on the English Legal System, I am reblogging this interesting study of how Judicial Review cases are being dealt with online
Judicial review during the Covid-19 pandemic (Part I)
By Joe Tomlinson (University of York), Jack Maxwell (Public Law Project), Jo Hynes (University of Exeter), and Emma Marshall (University of Exeter).
This piece originally appeared on the Admin Law Blog on 26 May 2020 and can be found here. It is reposted with permission and thanks.
The COVID-19 pandemic raises at least two important questions for judicial review in England and Wales. The first is about process: how is judicial review operating in a time of social distancing, when most court processes have quickly shifted to a remote format? A second, related question is about litigation patterns: how are people using judicial review to challenge the Government’s response to COVID-19 itself?
In this two-part post, we offer some tentative answers to these questions. This first part examines how the Administrative Court’s amended judicial review procedure has been working in practice…
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Domestic Abuse Bill 2020
The problem of domestic abuse has slowly risen up the political agenda over the past few years. For far too long regarded it was regarded as essentially a private matter in which public authorities, in particular the police, were often reluctant to act. However, the indefatigable work of charitable organisations, such as Refuge, have done much to change the minds of policymakers. And it was an issue which the former Prime Minister Theresa May took particularly seriously.
Over the last 2 and a half years, there have been a series of steps leading to reform of the law.
1. A Consultation Paper, setting out proposed changes to the law, was published in March 2018. This identified 4 objectives for change:
- promoting awareness – to raise public and professional awareness
- protection and support – to enhance the safety of victims and the support that they receive
- transforming the justice process – to prioritise victim safety in the criminal and family courts, and review the perpetrator journey from identification to rehabilitation
- improving performance – to drive consistency and better performance in the response to domestic abuse across all local areas, agencies and sectors.
2. The consultation was followed by a draft Domestic Abuse Bill in March 2019 which was considered by a Joint Committee of the House of Commons and House of Lords. It set out the following issues which required legislative change. They are:
- creation of a statutory definition of domestic abuse;
- establishment of the office of Domestic Abuse Commissioner, and setting out the commissioner’s functions and powers;
- providing for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order;
- prohibiting perpetrators of domestic and other forms of abuse from cross-examining their victims in person in the family courts (and preventing victims from having to cross-examine their abusers) and giving the court discretion to prevent cross-examination in person where it would diminish the quality of the witness’s evidence or cause the witness significant distress;
- creating a statutory presumption that complainants of an offence involving behaviour that amounts to domestic abuse are eligible for special measures in the criminal courts;
- enabling high-risk domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody;
- placing the guidance supporting the Domestic Violence Disclosure Scheme on a statutory footing;
- ensuring that, where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy to a social tenant who had or has a secure lifetime or assured tenancy (other than an assured shorthold tenancy), this must be a secure lifetime tenancy;
- extending the extra-territorial jurisdiction of the criminal courts in England and Wales to further violent and sexual offences.
3. The consultation on the Draft Bill was concluded in July 2019, and a Domestic Abuse Bill was introduced into Parliament on the same day. However, it fell when the December 2019 General Election was called.
4. In March 2020, a revised Domestic Abuse Bill was published which is now proceeding through Parliament. It is largely the same as the 2019 Bill though a number of proposed clauses have been strengthened. For example, the powers of the Courts to protect victims from being cross-examined by abusers have been enlarged.
The timetable for the Bill provides that it should have passed through the Commons by the end of June 2020. It is likely to have passed the Lords and be given Royal Assent sometime in the Autumn of 2020.
Although I have not linked this initiative directly to Covid 19, as I have done in a number of other blog items, there is a clear link between the two since one of the well-publicised consequences of the Covid-19 lockdown has been a sharp increase in the numbers of people seeking help to protect them from domestic abuse.
I will update the blog on this issue after the Bill becomes law.
For the work of Refuge, see https://www.refuge.org.uk/
A press release relating to the 2020 Bill is at https://www.gov.uk/government/collections/domestic-abuse-bill
Further documents relating to the Bill are at https://services.parliament.uk/bills/2019-21/domesticabuse.html
Covid 19 and the English Legal System (2) Virtual hearings and on-line courts
Almost exactly a year ago (May 2 2019) I noted in this blog the introduction of the Courts and Tribunals (Online Procedure) Bill. This was to be an important staging post in the process of reforming Courts and Tribunals, to enable more hearings and other proceedings to be on-line. The Bill would have provided for the creation of a new Procedure Committee to deal with how such hearings and other proceedings should take place. The Bill fell when the General Election held 2019 was announced.
Nevertheless, far from derailing the Government’s reform plans, the Covid 19 pandemic has done more to speed up progress towards the development of new online courts than might have been imagined. Although the Online Procedure Bill has not, to date, been introduced, the Coronavirus Act 2020 has effectively stepped in. For as long as the Act is in force (the legislation is time-limited to 2 years), it provides for the transformation of ways in which courts and tribunals are to be run. It does this by disapplying or amending existing legislation regulating a large number of aspects of public policy.
Sections 53 to 57 and Schedules 23 – 27 of the Coronavirus Act deal with the use of video and audio technology in Courts and Tribunals. I do not propose to go through these provisions in detail. But it worth setting out the policy objectives of these provisions. I have adapted these from the Explanatory Notes to the Act:
1. [Although] the courts currently have various statutory and inherent powers which enable them to make use of technology, the Act amends existing legislation so as to enable the use of technology either in video/audio-enabled hearings in which one or more participants appear before the court using a live video or audio link, or by a wholly video/audio hearing where there is no physical courtroom and all participants take part in the hearing using telephone or video conferencing facilities.
2. Provisions are also made within the Act to enable the public to see and hear proceedings which are held fully by video link or fully by audio link. This enables criminal, family and civil courts and tribunals to make directions to live stream a hearing which is taking place in this manner.
3. There are existing restrictions on photography and sound recording in physical courts. (Section 41 of the Criminal Justice Act 1925 provides prohibitions on photography in courts. The Contempt of Court Act 1981 prohibits the making of unauthorised sound recordings.) These offences were created to protect participants in court proceedings, but long before the concept of a virtual hearing was thought possible. Provisions in the Act therefore create similar offences to protect participants and prohibit recording or transmitting live-streamed proceedings, photography and sound recordings in the context of virtual hearings and live-links.
4. The Act provides for restrictions to be imposed on individuals who are potentially infectious and that the decision to impose such restrictions can be appealed to magistrates’ court. The Act therefore ensures that such hearings should be conducted fully by video link, unless the court directs otherwise, given the person appealing the decision would be subject to restrictions, and there is the risk of passing on the infection if they were to travel to court.
Although these specific provisions will, I hope, have a limited shelf life, they are having the effect that, like it or not, judges, legal practitioners and other court and tribunal users are being forced to use these new technologies.
There have been sporadic reports in the professional legal press and elsewhere that, actually, many really like the new ways of doing business and are surprised how well they work. Others, particularly where the technology does not work as it should, are less enthusiastic.
But the champions of reform among the judiciary and policymakers clearly see these currently emergency procedures as a really valuable practical testbed and the precursor to significantly more substantial reform in the years ahead.
The Act can be found at http://www.legislation.gov.uk/ukpga/2020/7/contents/enacted
A useful report on these matters from Susan Acland-Hood, who is leading the Courts and Tribunals reform programme, was published on 30 April 2020 and is available at https://insidehmcts.blog.gov.uk/2020/04/30/using-remote-hearings-to-maintain-justice-during-the-coronavirus-pandemic/
See international developments at the website: https://remotecourts.org/
Reforming divorce law
The current law provides that divorce can only be initiated by one party to the marriage (the “petitioner”). The other party (the “respondent”) must then acknowledge that they have received (been “served with”) the petition and state whether they disagree with the divorce and intend to contest (“defend”) it. Only around 2% of respondents indicate an intention to contest, and only a handful of such cases progress to a final court hearing in front of a judge.
The law requires a person seeking a divorce to satisfy the court that the legal test of irretrievable breakdown has been met. This is done by citing in the divorce petition one or more of five “facts”. Three facts are based on conduct (adultery, behaviour – commonly referred to as “unreasonable behaviour” – and desertion). Two facts are based on a period of separation prior to filing the petition for divorce (two years if both parties consent to the divorce, or five years otherwise). If one of the five facts is made out, the court must grant the decree of divorce.
A similar regime exists for those couples who have entered a Civil Partnership.
It has long been argued that the need to ‘prove’ irretrievable breakdown in this way too often leads to unnecessary conflict between separating partners, which in turn too often has very harmful impacts on the children of the relationship. It has been argued for many years that – particularly where irretrievable breakdown is proved by conduct – the current law in effect requires one party to blame the other party for the breakdown. In reality, relationships break down because neither party is able to sustain the relationship. Changing the law is, however, politically difficult because many members of the public regard marriage as a permanent arrangement, at least until ‘death do them part’, so that, for those people, it should not be too easy to obtain a divorce.
After many years of campaigning, in 2018 the Government launched a Consultation paper on possible changes to the law on divorce. (Noted in this blog on October 2, 2018). The results of the consultation and a statement of the then Government’s policy for reform were published in April 2019 (Noted in this blog on May 1, 2019). It was said at the time that a Bill would be brought foreward “when Parliamentary time permits”.
This can often be used to delay progress with a measure that might be seem to be politically diffcult. In fact, the present Government – despite all the attention it was initially giving to Brexit, and all the attention it is now givng to dealing with the Covid 19 pandemic – published, in January 2020, the Divorce, Dissolution and Separation Bill. The Bill started in the House of Lords, where it has completed all its stages. It is now waiting to be debated by the House of Commons.
The key features of the Bill are that:
- The requirement to provide evidence of conduct or separation facts is replaced with a new requirement simply to provide a statement of irretrievable breakdown.
- The possibility of contesting the decision to divorce is removed, as the statement of irretrievable breakdown is to be taken as conclusive evidence that the marriage has broken down irretrievably. (Divorce proceedings will still be able to be challenged for other reasons including jurisdiction, validity of the marriage, fraud and procedural compliance.)
- There will be a minimum overall timeframe of six months (26 weeks) for the divorce process, made up of a period of twenty weeks between the start of proceedings and when the application can be progressed to conditional order (there is currently no minimum period between these stages), and six weeks between the grant of a conditional order and when the order can be made final.
- The Lord Chancellor will have power by order to adjust the initial 20 week time period, subject to the proviso that the total period may not exceed 26 weeks (six months).
- There will be a new option of a joint application for cases where the decision to divorce is a mutual one, in addition to retaining the current ability of one party to initiate the legal process of divorce.
- The legal language will be updated. For example, for example the “decree nisi”, “decree absolute” and “petitioner” become the “conditional order”, “final order” and “applicant”.
For further details see https://services.parliament.uk/Bills/2019-21/divorcedissolutionandseparation.html.
Also https://www.gov.uk/government/publications/divorce-dissolution-and-separation-bill
Covid 19 and the English Legal system (1)
Media attention has inevitably and properly been focused on the impact of Covid 19 on our health and care systems and how they are coping with the virus. Away from the headlines (most of the time at any rate), the Legal System has also been subject to the disruptive consequences of the pandemic. No part of the legal system has been untouched. Just take a look at today’s Ministry of Justice website. The impact is obvious. Prisons, courts, tribunals, legal advice services – all are mentioned in separate news items listed on the website.
The professional press has also been describing how law firms, barristers chambers, and other legal advisers are all offering their services online, through emails, video conferencing, the phone. Homeworking has become the norm, rather than large numbers of people commuting to work in large office blocks.
I am sure that there are many who want the virus to be controlled so that ‘normal’ – i.e. pre-Covid 19 life – can be resumed. My question is: Should ‘normal’ (legal) life be resumed? Should we not see the arrival of Covid 19 as a tremendous opportunity to change the ways in which legal services are delivered? Might this not lead to significant improvements in the ways in which legal services of all kinds are delivered to the public?
I guess that many in the professions have from time to time asked themselves how they might change the ways in which they work. There have been numerous discussions and conferences about how IT or AI or other innovations will transform legal practice. But the dreams of the visionaries, such as Richard Susskind, often seem to get lost in practice. People are just too busy to make radical changes to their working routines.
Covid 19 has altered all that. It has forced many to practice from home; it has forced many court processes to be delivered online. It has enabled those who work in any different corners of the legal system to discover that much if not all of their work can be done away from historic office/chambers settings. Of course, even before the arrival of Covid 19, experiments in new ways of working were taking place. But Covid 19 has created a momentum for change that I hope will ensure that the ‘old normal’ will not be resumed but will be replaced by a much more responsive and flexible ‘new normal’.
See https://www.gov.uk/government/organisations/ministry-of-justice
See also Richard Susskind, Online Courts and the Future of Justice. Details at https://global.oup.com/academic/product/online-courts-and-the-future-of-justice-9780198838364?cc=gb&lang=en&
Back on line!
Dear Readers and Followers, You will be aware that I have taken a rather extended period of furlough (as it is now called!). But I am writing to say that I am now back and will be resuming my regular blog items on the English Legal System.
For an announcement relating to the next edition of my book Introduction to the English Legal System please click on the link on the sidebar to this page, just below my author pic.
Comments always welcome
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 