Your weekly update from the Law Society’s public affairs team on all the latest developments and debates in Parliament and across Whitehall.
One thing you need to do
The current lockdown has changed the way legal services are delivered. These changes have presented an opportunity for cyber-criminals and fraudsters. The Home Secretary has reported that cases of fraud and scams have increased significantly since lockdown.
We've published a new COVID-19 cybersecurity, fraud prevention and lawtech hub to support solicitors and law firms to prevent fraud and scams, safely deliver legal services online and run their organisations effectively by using legal technology.
Five things you need to know
1. Our coronavirus response
The impact of coronavirus on how legal services are delivered continues to dominate our public affairs work. We've been pushing government to increase the support provided to the justice sector and solicitors firms. As social isolation measures look set to continue, further support for businesses is vital to ensuring the wheels of justice continue to turn and the rule of law is upheld.
The current lockdown has changed the way legal services are delivered. These changes have presented an opportunity for cyber-criminals and fraudsters. We're supporting solicitors and law firms to prevent fraud and scams, safely deliver legal services online and run their organisations effectively using lawtech. This week we launched a new hub providing advice and guidance on how to make sure your practice is safe.
The pandemic is triggering both short and long-term consequences that include a wide range of social and legal issues for people in their everyday lives, and huge policy interventions by governments.
It's also a huge challenge to the advice and free legal services sector and their support organisations. This week we've published new guidance for members who are thinking of providing pro bono assistance during the coronavirus (COVID-19) pandemic. We've also donated £75,000 to the Access to Justice Foundation Emergency Advice Appeal and £25,000 to the Law Centres Network Emergency Advice Fund in order to provide immediate financial support.
2. Joint Committee on Human Rights hears evidence from the lord chancellor
Last Monday the Joint Committee on Human Rights heard evidence from lord chancellor Robert Buckland QC MP on the human rights implications of the government’s response to Covid-19.
Criminal justice system
Lord Brabazon (Conservative) asked about the operation of the justice system during the pandemic, noting that the Crown Prosecution Service guidance now requires prosecutors to consider the context of the crisis when applying the public interest test, and that this would mean also considering backlogs, delays and possible prolonged time spent on remand.
He asked if the lord chancellor had concerns about whether justice could really be done in circumstances where the justice system cannot function properly, and given that there are already concerns about its sustainability. He also asked whether there were not ‘real risks’ to the right to a fair trial, outlined in Article 6 of the European Convention on Human Rights (ECHR) and under Articles 5.3 and 5.4, which outline reasonable timeframes for trials.
Responding, Robert Buckland QC MP said that the justice system is facing an unprecedented challenge, mainly because the trial process is predicated on physical presence and proximity of individuals in a court room. He said this is in direct contradiction to the lockdown restrictions, which has had a dramatic effect on the court system. He noted that jury trials have now stopped and that magistrate courts have almost stopped, and paid tribute to HM Courts and Tribunals Service for their huge effort to keep courts running, including scaling up technology, however despite this there is a growing backlog of cases.
Buckland said that he was impressed by the way that courts have adapted to the restrictions in terms of listing, and the way that the judiciary has embraced technology. He said he was pleased to report that the judiciary are beginning to consider what the recovery effort will look like at an operational level. He said that while the effects of coronavirus will be felt for a long time to come within the justice system, the Government is doing everything it can to ensure the system continues to function.
Joanna Cherry QC MP (SNP) asked about issues with jury trials, and what relevant measures are currently under discussion in England. Buckland replied that a move to judge-only courts is a disproportionate step and one that would have wider consequences that he believes would be regretted.
He said that as a practitioner, he was very much a supporter of the jury system. He said that the reduced-jury model used in World War II should be seriously considered as a solution, and noted that JUSTICE’s ongoing work piloting remote jury trials. He said he is also deeply encouraged by the work of the Bar, where everyone is getting involved in measuring out how jury trials can be conducted safely up and down the country. He praised these efforts for their ‘widening of the options available’ for conducting jury trials, and said that his priority is getting these up and running again.
Rule of law and the Coronavirus Act
Committee Chair Harriet Harman QC MP (Labour) said that the Coronavirus Act has resulted in a raft of significant new government powers, which has been accompanied by a wide range of new criminal offences. She said these placed major restrictions upon human rights during the crisis, and asked the lord chancellor to outline the government’s approach to human rights, whether it is monitoring relevant human rights implications and whether human rights is high on its current agenda.
Responding, Buckland said that, fundamentally, the question of human rights cannot be compartmentalised, and that every minister should be considering human rights when formulating policy. He said that he has always felt very strongly as lord chancellor that the government needs to incorporate human rights in the policy-making process, and that not doing so would be a failure in its duties.
Buckland said that the legislation does represent a change, and an infringement, to human rights as we know them. He said the measures which are needed to deal with the crisis involve a curtailment of our human rights, and that if we acknowledge this, then the question becomes: which measures are absolutely necessary and proportionate in order firstly to preserve life, and secondly to ensure that we are still operating within the rule of law in a civilised society. He argued that the right to life is a fundamental right within the ECHR as well as within other international conventions, and therefore the measures the government is taking, while a curtailment, have the ultimate purpose of upholding human rights.
Harman asked Buckland to confirm that there is no formal role that he is taking as lord chancellor, or machinery he has established, to review the human rights implications of the implementation of the Coronavirus Act.
Responding, he said that there is the government Legal Department Human Rights Centre of Excellence, where departmental lawyers are able to go for further guidance on particular issues or tensions they encounter. Buckland said that he sees his role more as the ‘political antennae’ of government – to pick up day-to-day operational issues – and said that it is better for the relevant ministers to ‘square up to the consequences of the measure and make the necessary adjustments’, as this would make it clear that human rights are the responsibility of all parts of government.
Karen Buck MP (Labour) said the consequences of using criminal law to enforce the Act are incredibly profound and could have a real impact on people’s lives. She said it was important that we are not left to ‘pick up the pieces of this’ after the crisis. She also argued that there has been a discrepancy between public understanding of guidance and the legislation itself, and noted the case of an individual who was prosecuted and fined under the coronavirus legislation for an offence that doesn’t exist in law.
Buckland said that where there are examples of failures by investigating authorities to apply the law properly, then ‘thank goodness that we have a robust and independent judiciary and court system that deals with it,’ and that ‘eloquently epitomises the rule of law’. He said the way the law of England and Wales has developed has very often been because of individuals who have been wrongly charged and gone on to stand up to authorities. He said that this highlighted why the independence of our judiciary is absolutely vital, especially in times like this.
3. Lords discuss the impact of coronavirus on the self-employed
Last Thursday saw oral questions in the House of Lords on the impact of coronavirus for the self-employed. The session focused on measures to help self-employed individuals who are ineligible for the Government support schemes that have been announced so far.
Opening on behalf of the government, minister of state for the Cabinet Office and the Treasury Lord Agnew (Con) said that the government has taken a number of steps to support the self-employed during this difficult time. He cited the Self-Employed Income Support Scheme (SEISS), the Coronavirus Business Interruption Loan Scheme (CBILS), mortgage holidays and an income tax deferral.
The Earl of Clancarty (Crossbench) asked whether the government would reconsider the £50,000 cap for the SEISS, and whether they would review the income threshold which “at 50% excludes many for whom a mixed portfolio is the norm,” as well as those paid through dividends.
Replying, Lord Agnew said that delivering a scheme for the self-employed represents an operational challenge, particularly within a rapid timescale. He said that the scheme is designed to be fair, and the £50,000 threshold means it is targeted at those who need it most. He said that 95% of self-employed individuals will benefit from the SEISS, and that those who do not meet the eligibility criteria may be able to access other support.
Baroness Bull (Crossbench) said that large numbers of self-employed workers operate as personal service companies, meaning they receive the majority of their remuneration as dividends and are therefore disbarred from the SEISS. She asked whether the government will consider accepting proof of dividend incomes from dividend certificates and self-assessment tax returns so that freelancers can fairly claim compensation on income earned through dividends from their own personal service companies.
Responding, Lord Agnew said that the choice for business owners to take dividends is a personal one, which is often done to mitigate employers’ national insurance obligations, so he does believe that it is right for the government to consider it as a form of income. He said that a dividend is defined as the surplus of a business after expenses have been paid, profits retained and taxes paid, and that while the Government would “keep an open mind,” they would not be dealing with this issue urgently.
The Minister was questioned further by Baroness Young of Old Scone (Labour) about support for those who are not eligible for the SEISS and find themselves without any income, with financial commitments, and operating on such small margins that taking out a loan is not an option. Lord Agnew replied that the government will keep its policy under review. He said that 11 measures have been made available for self-employed people and businesses, and that this was “a pretty strong safety net.”
4. BEIS Committee questions secretary of state on Coronavirus
Last Thursday the Business, Energy and Industrial Strategy Select Committee heard evidence from BEIS secretary Alok Sharma MP, alongside BEIS acting permanent secretary Sam Beckett and BEIS director general for energy and security Joanna Whittington.
Acting chair Mark Pawsey MP (Conservative) asked for Sharma’s view on the current state of British Business. Sharma stressed the unprecedented scale, magnitude and nature of the challenges that are being faced, and argued that the government’s business support package matched this. He said he was speaking every day to businesses and representative organisations to understand their needs at the time. He said 387,000 applications covering 2.8 million employees have occurred within the furlough scheme, and that half a million businesses have received grants. He encouraged businesses to “take advantage” of government schemes and support.
Peter Kyle MP (Labour) asked about the business rates holiday in retail and leisure industries, and why this was not extended to other sectors. Sharma said the industries selected are the ones most likely to have ceased to function due to the crisis. Kyle went on to the self-employed who pay themselves via dividends, and their exclusion from the majority of Government support measures. Sharma said HMRC is not able to discern between dividends from singular companies and those from other sources, but said these people will be able to use the job retention scheme.
Mark Jenkinson MP (Conservative) asked about pregnant women and the furlough scheme, and the reports of discrimination from employers. Sharma said no law had been changed regarding mistreatment of pregnant women, and encouraged anyone who has been unfairly dismissed instead of being furloughed to bring the case to the employment tribunal.
5. Home Affairs Select Committee hears evidence on coronavirus and immigration
Last Tuesday the Home Affairs Committee heard evidence as part of their inquiry on Home Office preparedness for Covid-19. The witnesses were Adrian Berry, chair, Immigration Law Practitioners Association and Colin Yeo, barrister, Garden Court Chambers.
Chair Yvette Cooper MP (Labour) asked their assessment of the impact of the coronavirus crisis. Berry noted the risk to those in detention and those in asylum support accommodation, and the impact on those with leave to remain but no recourse to public funds. He also observed that many are having issues with extending their leave to remain, but are justifiably unable to travel, so are having to consider overstaying.
Berry suggested that leave to remain should be granted automatically via a statutory instrument, to counter the lack of clarity due to guidance and measures being released on “an ad hoc basis.” Yeo suggested “a much more comprehensive legal communications programme” was necessary, and that immigration practitioners were unsure how the Government’s intention to extend visas for (as yet unspecified) NHS staff and key workers would be legally implemented. Yeo flagged that circulars are being sent round the legal community from the Home Office, but that these are not public documents – he called for more clarity.
Holly Lynch MP (Labour) asked about the EU Settlement Scheme, referring to the closure of the helpline and several centres aiding in registering for the scheme, and the deadline of June 2021. Yeo argued that many are going to be “left behind” by this process, and this has only been exacerbated by cutting off the support necessary for “vulnerable” people to register. He suggested an extension, and also automatically granting leave to remain for this group of people. Berry pointed out the settlement scheme can legally be extended – six months after the transition period ends is simply the minimum term allowed by the withdrawal agreement.
Coming up this week
In the House of Commons, this week will see the second readings of both the Finance Bill and the Domestic Abuse Bill, as well as oral questions to the Ministry of Justice and the Attorney General.
The Home Affairs Select Committee, Treasury Select Committee and Business, Energy and Industrial Strategy Select Committee will be hearing evidence on the impact of coronavirus.
In the House of Lords, today will see oral questions on the progress made in negotiations on the future UK-EU relationship.
If you made it this far
We've published new guidance on EU Legal Professional Privilege post-Brexit, which reflects ongoing discussions on EU LPP for UK practitioners, especially those operating in the EU as third country lawyers following the end of the transitional period.