While the House of Commons prepares to undertake its long promised Six-Month Review of the Coronavirus Act 2020, there has already been a steady stream of other scrutiny of the pandemic’s impact on law and justice. 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.
Lawyers’ groups, campaigners and the senior judiciary have also been drawing attention to the problems around delayed hearings and the mounting backlog of cases that can’t be dealt with remotely and which the courts are not currently able to manage.
For many civil practitioners the experience of remote hearings has been a positive one, not least because they generally have the equipment and surroundings necessary to make a success of the process. 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.
Sadly the same has not been the case for the typical litigant in public law family proceedings, the majority of whom (according to a survey by the Transparency Project) are having to attend their hearing via a mobile phone, even where the hearing is by video, and with no access to the court documents concerning their case. The CJC report had also 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.
For certain types of case, remote hearings are simply inappropriate, and in such cases the problem is not so much about the accessibility of the hearing as whether and when there will be a hearing at all. 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.
Meanwhile in the magistrates’ courts there were 517,782 cases awaiting disposal. The Justice Committee report said these figures “create the ingredients for a significant crisis in the criminal justice system. Victims of crime will have to wait longer to know whether they will get justice. Defendants awaiting trial will spend longer on remand in custody or out on bail in the community.”
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, 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 backlog in an under-resourced criminal justice system.
HMCTS say they have made huge strides in expanding capacity to deal with the backlog. 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.
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.
“The level of interference with rights was for most people, the greatest they will have experienced in their lifetime”, says the joint human rights committee in their report. While accepting that the purpose of the lockdown was to save lives in compliance with article 2 of the Human Rights Convention, they say: “It is vitally important that checks and balances are in place to ensure that human rights remain fully protected.”
Legal challenges to the lockdown regulations have faced an uphill battle. In Dolan v Secretary of State for Health and Social Care  EWHC 1786 (Admin) the High Court refused permission for a crowdfunded claim for judicial review of the regulations on grounds including that they were ultra vires, irrational, disproportionate and in breach of human rights. Leave to appeal appears to have been given, with a hearing now listed for late October. However, the regulations themselves have been amended so many times that it will be hard to keep track of what might be considered rational or proportionate, unless they were found ultra vires in the first place. That depends on whether they comply with the delegating provisions of the Public Health (Control of Disease) Act 1984. (It is important to remember that many of the Coronavirus Regulations are not actually made under the Coronavirus Act, however logical that might seem.)
It is against that background that Parliament will be reviewing the Coronavirus Act 2020. There are now over 240 coronavirus-related statutory instruments, largely made under emergency powers (nearly 50 of them under an Act dating, perhaps sinisterly, from 1984). Few if any of them have had proper parliamentary scrutiny.
As a report from the Bingham Centre for the Rule of Law observed: “Six months in, it is unclear why it is still necessary by reason of urgency to use the emergency procedure. The twists and turns of the virus are not entirely unpredictable. It is no longer a new disease, but one with which we have been living for six months. We know that, in broad terms, if we relax restrictions the disease will spread more quickly, and if we tighten them, the disease will spread more slowly. There is less and less justification for using the excuse of urgency to make regulations which, in the words of the Constitution Unit ‘sideline Parliament’.” (Parliamentary Scrutiny of Coronavirus Lockdown Regulations: A Rule of Law Analysis, by Dr. Ronan Cormacain)
Meanwhile the lockdown, relaxed to a large extent over the summer, is being once again tightened as we go into the autumn, with the latest regulations threatening fines of up to £10,000 for infringement. Students are being virtually imprisoned in their residences, in draconian local lockdowns. How long before the “Rule of Six” becomes the “Rule of Section 6” (of the Human Rights Act 1998)?