Law under lockdown: COVID-19 measures, access to justice and vulnerable people
Measures aimed at tackling the coronavirus crisis have had disproportionate impact on some of the most vulnerable in society, solicitors’ leaders warned ahead of the renewal of emergency measures introduced under the Coronavirus Act in March.
In a new report, the Law Society of England and Wales analyses the impact of measures on the ability of vulnerable people* to access justice and legal advice during the pandemic and makes granular recommendations for the government’s six month review of the emergency measures.
“Laws and policies introduced in response to COVID-19 limited state responsibilities to an extent not seen in the UK since World War II,” Law Society president Simon Davis said.
“Those living in prisons, immigration detention or care settings, disabled people, children and victims of domestic abuse are particularly dependent on the state and have been disproportionately impacted by measures to contain the virus.
“Government must maintain access to legal advice and courts during emergencies, so citizens are able to challenge exceptional measures. But many have been unable to access legal advice, despite efforts to set up technology to replace prohibited visits in person.
“Many of the measures introduced by the act were forward-looking, anticipating strains on resources, but Law Society analysis raises questions about their ongoing necessity and highlights concerns about adverse effects on the most vulnerable and on the rule of law.
“Some of the measures reduced obligations on the state to provide public services, in social care and for children, and removed safeguards protecting people’s rights to these, at the same time as avenues for redress were suspended.”
The underfunded justice system has staggered under the strain of the pandemic, with court backlogs up 23% in family courts (to 52,391) and by 26% in criminal courts (to 564,249) from pre-COVID to end of August 2020.** Hearings are being listed for at least 2022 in some places, raising serious questions about whether justice can be served, particularly where those on remand are children.***
The impact of the COVID-19 pandemic on the ability of adults and children detained in custody to access justice has been severe. People have been unable to see family and legal advisors for prolonged periods of time and solicitors report eight-week waits to talk to their clients, with hearing dates sometimes offered before they have been able to take instructions.
A criminal law solicitor responding to a Law Society’s survey said: “… my 14-year-old defendant’s trial [has been] moved from June 2020 to February 2021. He is currently detained in a secure detention centre and he will have been held on remand for over 14 months of his life by the time his trial has concluded […] This is likely to cause him all manner of issues for his social and personal development. If he is found not guilty then he will have served what would be a 2.5-year prison sentence without actually having committed a crime and that is totally unacceptable.”
The Coronavirus Act 2020 permitted the expanded use of video and audio hearings - particularly challenging for children and people with mental health issues, learning disabilities, language barriers, or other factors affecting their ability to understand proceedings, as well as for litigants in person.
Only 16% of solicitors who responded to our survey told us that the vulnerable clients they represent were able to participate effectively in remote hearings, indicating an unacceptable barrier to justice for this group for a range of legal issues.
Research from the University of Surrey, conducted prior to the pandemic, found defendants are more likely to be jailed in video hearings and suspects whose cases were dealt with remotely were less likely to have legal representation. This could mean that there are defendants being unfairly convicted or given harsher sentences as a result of having to undertake their trial remotely.
Access to legal advice in institutionalised settings
People living in institutionalised settings, such as prisons, immigration detention centres, mental health units or care settings have been subjected to worse and more restrictive conditions, including increased use of restraint and solitary confinement in some settings. And this at a time when they have had very limited contact with their family or their solicitor for prolonged periods, removing an essential element of external scrutiny of conditions in institutions.
Many were left in limbo when visa processing, asylum applications and appeals were suspended. Immigration removal centres were closed to most visitors, and detentions and removals have continued, despite international travel bans. The government should review policies on detaining and removing people during pandemics, considering people’s ability to access legal advice.
More than one million people in the UK are subject to the ‘no recourse to public funds’ (NRPF) policy, including at least 100,000 children. This policy prevents migrants with leave to remain from accessing state financial assistance, such as welfare benefits. They are not able to receive income support should they be made redundant (or lose income if self-employed) and are at risk of financial destitution. The government should make the process for applying for support accessible or consider legal aid for these groups.
The economic effects of the pandemic are almost certain to cause an increase in possession proceedings, bringing problems with a lack of legal advice to the fore. Legal advice for people facing eviction is essential. For many the free legal advice provided at courts by not-for-profit organisations on the day of a possession hearing is the only advice they will get, but most providers operate at a loss and are not sustainable. Courts in Shropshire and Cornwall currently have no provision. The Law Society has also repeatedly highlighted legal aid deserts for housing advice, which compound the crisis for anyone facing eviction.
1. Adapt or remove measures not used, or used in a limited way, or which had inadvertent adverse effects.
2. Protect access to justice and legal advice for those most at risk:
- invest in courts and technology to improve access to legal advice for those in institutional settings and address the backlog of cases in family, criminal and court of protection, with particular attention to supported access for groups less able to communicate using remote access technology
- provide non-means tested legal aid for those most at risk, such as victims of domestic abuse or those deprived of their liberty in health and care or immigration settings
- ensure courts continue functioning so cases are heard in a reasonable timeframe
3. Improve information, data collection and evaluation: There are significant gaps in data and monitoring of the impacts of COVID-19 measures on the people solicitors work with. Resources should be allocated to the analysis of the data collected.
Simon Davis added: “Emergency measures must be necessary, proportionate and any limitations on access to justice must be for as short a time as possible, balancing the need to contain the virus with ensuring that those who need legal advice or the protection of the court can obtain it.
“We need more and better data, and further monitoring and evaluation of the measures that have been implemented. As we enter a second wave of this pandemic it is essential that lessons are learned so responses to this ongoing crisis are improved.
“It is vital access to justice and legal advice are maintained during times of exceptional legal measures to ensure protection for those most at risk.”
Notes to editor
For interviews, contact Harriet Beaumont, 0208 049 3854.
* Throughout the report the term ‘vulnerable’ is used to refer, variously, to an individual or group that possesses a characteristic that may increase their vulnerability (such as age or mental capacity), or could be considered vulnerable due to their circumstances (for example, living in an institutionalised setting, at risk of domestic abuse or having insecure legal status). The precise meaning of this term depends on the context
*** As of March 2020, there were 738 children in the youth secure estate, with more than one third (274) held on remand
The Law Society report, Law under lockdown, is informed by parliamentary questions, Freedom of Information requests, correspondence and discussions with government and civil service officials, input from the Law Society’s expert committees, a focused survey of solicitors and desk research.
Full list of recommendations
Theme 1: Access to justice through courts and tribunals
- The UK government must continue to make sufficient resources available as a matter of urgency to the courts, judiciary and legal professions to tackle the backlog of cases across all jurisdictions
- The MoJ should move forward with its early advice pilot and improve access to legal aid to ensure hearings are more efficient and that parties are aware of alternative means of dispute resolution
Remote hearings and vulnerable people
- HMCTS should publish a framework of factors to be taken into consideration when deciding which hearings can proceed remotely and publish an equality impact assessment of this
- Hearings involving vulnerable parties should be considered for postponement, with decisions to be made on a case-by-case basis, weighing the importance and urgency of the issue against the suitability of proceeding remotely, taking into account the nature of the hearing and the vulnerability of the parties
- Where an interpreter is required, including sign language interpreters, there should be a higher presumption that the hearing should be postponed until a physical one can be held, unless it can be shown that it is in the interests of justice for these hearings to proceed remotely
- Where cases are postponed for these reasons, they should be considered for priority listing when physical hearings are fully resumed
- HMCTS should collect and publish comprehensive data which enables the impact of remote hearings to be monitored, which includes disaggregation by protected characteristics and other vulnerability factors
- HMCTS should conduct a subsequent comprehensive evaluation of this data on the impact of remote hearings on access to justice, with specific emphasis on protected characteristics and other vulnerability factors
- The decision to remove the Court of Protection from the HMCTS Reform programme should be reviewed in consultation with expert practitioners
- The UK and Welsh Governments should take steps to support the Mental Health Tribunal and Mental Health Review Tribunal in Wales to conduct hearings with three member panels, by video, wherever possible
Remote hearings - impact on due process
- Case management hearings or other advocates’ meetings should explicitly consider the suitability of the case for remote hearing
- Hearings involving litigants in person, and where lay witnesses are to give evidence, should be considered for postponement
- The use of remote hearings in cases involving litigants in person and lay witness should be evaluated with an emphasis on their ability to participate in the hearing, and on the quality of the evidence
Access to justice in housing
- The two-stage hearings process for possessions proceedings proposed by the Master of the Rolls should be implemented
- The contracts and terms for HPCDSs should be reviewed to ensure financial viability for providers
- The UK government should consider bringing forward temporary measures allowing for judicial discretion in section 21 and ground 8 evictions, limited to the consideration of criteria related to the pandemic and resulting economic position of the tenant
- Immediate or temporary measures should be followed by longer term solutions, including:
- consultation on establishing a pre-action protocol for the private rented sector, to ensure that landlords are applying for possession orders only as a last resort
- legislation providing for judicial discretion in mandatory evictions, so that a pre-action protocol would also apply to these going forward
- revisiting the Renters’ Reform Bill and publish the UK Government’s response to the ‘no fault evictions’ consultation, conducted in October 2019
Theme 2: Access to legal advice and representation
Prisons and the secure estate for children
- The Prison Service should expand its CVP VMR service facilities and provide adequate staff to enable all prisoners to access legal advice in a timely and confidential manner
Mental health settings
- The UK government should adopt the relevant recommendation from the JCHR’s report and encourage NHS England to ensure hospitals understand their obligation to allow visits to patients, unless an individual risk assessment has been carried out
- Health Inspectorate Wales should collect and publish data on the number of inspections undertaken during the pandemic and any future inspection plans
- Where Deprivation of Liberty Safeguards (DOLS) assessments cannot be undertaken, the Legal Aid Agency should extend non-means tested funding to those cases where the Court of Protection authorises the deprivation of liberty, and includes a recital that it would, in any other circumstances, be authorised under a DOLS
- The access of detainees to legal representatives during the lockdown should be reviewed, including collecting and publishing data where possible so that evaluation can be conducted
- The UK government should review policies on detaining and removing people during pandemics, considering the ability of those concerned to access legal advice at the time
- The government should make the NRPF change of conditions application process practically accessible to individuals or consider the possibility of permitting legal aid for such applications
Those at risk of domestic abuse
- The UK government should reinstate non-means tested legal aid for victims of domestic abuse
- The UK government should consider allowing solicitors to certify that an individual is a victim of domestic abuse for the purposes of obtaining legal aid
- The UK government should seek to ensure adequate funding for services to support victims and survivors of abuse as the COVID-19 crisis continues and into the future
- The Domestic Abuse Commissioner should be consulted as part of future lockdown planning and discussions to ensure that protecting victims remains a key priority
Theme 3: Removal of safeguards
- The six-month review of the Coronavirus Act 2020 should consider removing:
- Schedule 12 providing for easements under the Care Act 2014
- Schedule 8 providing for easements under the Mental Health Act 1983
- the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 in their entirety
- the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020
- The Welsh and UK Government (respectively) should collect and publish data regarding:
- use of easements to the Social Services and Well-being (Wales) Act 2014 in Wales
- the extent to which local authorities are using measures contained in The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 and the impact this is having on children and young people with SEND and their families
- If provisions relating to the Care Act 2014 and Social Services and Well-being (Wales) Act 2014 continue in force, the UK and Welsh Governments should publish detailed guidance clarifying how to conduct the required processes and what minimum standards apply, making clear these are limited to the pandemic period
- The UK government should conduct an evaluation on the preparedness of children’s social care services for future emergency situations, with a focus on the least restrictive means through which to respond
- When reducing individual rights and safeguards in relation to the provision of public services it must be ensured that appropriate routes to redress remain open and accessible, including access to solicitors and independent complaints or inspection processes
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