Westminster update: coronavirus and our courts

Your weekly update from the Law Society’s public affairs team on all the latest developments and debates in Parliament and across Whitehall.

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1. Coronavirus latest

We've continued to provide bespoke support for our members in response to the coronavirus pandemic.

Last week, the government announced changes to the the Coronavirus Business Interruption Loan Scheme. Larger businesses will now be able to benefit from loans of up to £200 million, rather than the previous £50 million. We’ve updated our tool which summarises the business support measures available to small firms. We're continuing to press and lobby for further support measures, particularly for legal aid firms, many of whom are struggling as a result of the pandemic.

Jury trials have commenced across the country in London, Cardiff, Bristol and Manchester, with further courts to resume jury trials in the coming weeks. Since the start of the coronavirus outbreak, the safety of all who use the court and tribunal buildings has been a key priority for us. We would encourage practitioners to report any poor practice they see on the ground through this reporting form.

Last week was Mental Health Awareness Week, and we know that the coronavirus pandemic and the social distancing measures are having a significant impact on the profession. We've updated our coronavirus wellbeing and mental health resources.

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Check out the business support measures for small firms

Explore our wellbeing and mental health resources

2. Lord Chief Justice gives update on courts

Last Friday, the lord chief justice, the Rt Hon Lord Burnett of Maldon gave evidence to the Justice Select Committee regarding coronavirus and the impact on the court system.

Chair of the Justice Select Committee Sir Bob Neill MP opened by asking about the impact on the functioning of the courts caused by coronavirus.

The lord chief justice noted that the position of the court has improved since the lockdown was implemented, but it varies in different areas of law. Telephone and video proceedings have allowed the court to continue to operate. Criminal cases are more complex. Jury trials were temporarily adjourned, and several have started this week, with more to follow across the country in the coming weeks. In the interim period, the number of disposals has actually increased, as there has been more space for outstanding sentencing and procedural hearings. They are aiming for the end of June to have jury trials as far back to normal as possible.

The lord chief justice highlighted that the “haphazard systems” that operate in a number of our courts has meant it has been extremely difficult to gather useful and reliable data on the number and types of cases that are occurring.

Chair of the Justice Select Committee Sir Bob Neill MP asked about international comparisons on court operation. The lord chief justice said that it was key was to keep the wheels of justice turning. The UK was ahead of many other countries in that it kept the court going as far as possible through the strict lockdown period.

With respect to a growing backlog of cases, the lord chief justice said that if the current situation persists, we are going to accumulate an outstanding body of Crown Court trials which will take a considerable amount of time to dispose of under the current arrangements.

Richard Burgon MP (Labour) asked about vulnerable court users and their experience of digital proceedings. The lord chief justice said in the future nobody will be forced to use digital proceedings if they decide not to do so. John Howell MP (Conservative) asked about the future of the modernisation programme, and whether it can be achieved in the timescales set out previously. The lord chief justice said the funding must be made available to allow the programme to continue. Delays to the programme have been regrettable and the current crisis will likely impact progress.

Watch the session

3. Government publishes legal texts ahead of next round of Brexit negotiations

Last Tuesday the UK government published the legal texts it has been using as a basis for negotiation with the EU. These consist of the main draft free trade agreement (FTA) and several supplementary agreements, one of which covers criminal judicial co-operation.

Services are covered in articles 8-13 in the draft FTA, and there is no indication that legal and other professional services are excluded via negative listing (those that are have been mentioned explicitly). We understand that supplementary information on lawyers is yet to be published.

There are also significant draft provisions on mutual recognition of qualifications. On intellectual property, the UK text largely reflects the EU-Japan agreement, including incorporation of trade secrets as a category of IP rights.

The next round of negotiations begins on 1 June, and will be the final round before the European Council Summit on 18-19 June and the EU-UK stocktake meeting in late June (and the 30 June deadline to apply for formal extension to the transition period).

Read the UK legal texts

4. Immigration Bill debated

Last Monday the Immigration and Social Security Co-ordination (EU Withdrawal) Bill had its second reading in the House of Commons.

Shadow home secretary Nick Thomas-Symonds MP said that Labour would be putting forward “proposals for fairness” in the coming stages of debate, including an “all-important” 28 day time limit for immigration detention – an issue we have previously been active on.

SNP Spokesperson for Immigration Stuart C. Macdonald MP spoke of the UK’s “addiction to immigration detention and the shame of being the only country in Europe without a time limit on detention.”

These feelings were echoed by David Davis MP (Conservative), who argued that “Detention is meant to facilitate deportation, but we routinely detain people for extraordinary lengths of time without deporting them.”

He also referred to “the destabilising psychological burden of having no idea when they will be released” and said this flew in the face of the rule of law. He spoke of his intention to table an amendment limiting migrant detention to 28 days and “providing robust judicial oversight” – something supported in the previous Parliament by the Home Affairs Select Committee and Joint Committee on Human Rights.

Minister for Immigration and Future Borders Kevin Foster MP said that migration rules would continue to be set in secondary legislation, arguing this would allow the government to “remain flexible and able to respond to changing situations.” He argued the coronavirus pandemic necessitates this, saying that automatically renewing NHS workers’ visas, granting waivers to in-country route-swapping conditions or allowing tier 4 sponsors to move courses online would be extremely laborious to do through primary legislation.

Read the debate

5. Lords interrogate NHS app privacy concerns

Last Monday in the House of Lords Baroness Jones of Moulsecoomb (Green) asked an oral question on the steps the government is taking “to address privacy concerns about (1) the use of the NHS Covid-19 contact tracing application, and (2) the introduction of immunity certificates.”

In response, the parliamentary under secretary of state for health and social care, Lord Bethell, said that, with regard to the app, the government has put privacy at its heart and has ensured that users do not need to provide personal details.

He also noted that the government has worked in partnership with the National Cyber Security Centre and the Information Commissioner’s Office throughout the development of the app. With regard to immunity certificates, he said that the science around immunity is currently unclear and a number of issues remain to be addressed.

In response to a supplementary question about transparency of the app, Lord Bethell noted that the government has published the open source code and a preliminary privacy impact assessment.

Lord Reid of Cardowan (Labour) argued that the app would exclude many elderly people, who are at most risk from the virus, who do not own a smartphone. In response Lord Bethell noted that the government’s testing and tracing regime also involved access to tests and centrally run contact tracing operated by phone and email, to ensure everyone is adequately protected.

Lord Scriven (Lib Dem) meanwhile asked the minister to give a “cast-iron guarantee” that the app will not use location tracking or request personal information at any point as it evolves. Lord Bethell said the government has no plans to use geolocation information, but that it is open to options for users to choose to share various kinds of data.

Read the full exchange

Read the preliminary privacy impact assessment (PDF)

Coming up this week

Parliament is in recess this week following the Bank Holiday weekend, but Select Committee sessions are continuing to meet.

On Wednesday the prime minister will face scrutiny from Select Committee Chairs at the House of Commons Liaison Committee.

Elsewhere, on Wednesday and Thursday Michael Gove MP and Sir David Frost will be giving evidence to both the Future Relationship Select Committee and the Lords EU Committee regarding negotiations on the UK's future relationship with the EU.

View all upcoming parliamentary business

If you made it this far

Read our response to the Civil Justice Council's consultation on the impact of coronavirus on the civil justice system