Shadow Justice Secretary, specifically commenting on Labour’s call to live-stream court cases during and after the covid-19 crisis, said:
“Open justice is a fundamental right that underpins the justice system. As a result of restrictions on non-essential travel, it is currently not possible for most members of the public to attend court.
“To maintain public confidence in the justice system, with a few exceptions, all court cases should be streamed online.
“Labour is calling for the live-streaming cases to become the norm during and after the covid-19 crisis because a more transparent system is a fairer system, which gives greater access to justice for us all.
“We know this is possible because proceedings at the Supreme Court can already be observed in this way.
“If it takes bold steps now, the government can not only get the justice system running again, it can make improvements that will improve the system for generations to come.”
Full text of the letter below:
Further to my letter dated 14th April 2020 regarding the prison and probation system, Labour is calling for an emergency action plan for courts and the judicial system in response to the Covid-19 crisis.
As HM Opposition has been clear throughout this crisis, our aim is to work constructively with the government. Nonetheless we have serious concerns regarding not only how the justice system has become incapacitated by the crisis, but also around how our critically weakened infrastructure will cope with the enormous challenge it will face post Covid-19.
We must look not only to short-term fixes, but confidently address the systematic and historic failings which left it critically weakened long before the crisis began. By taking a number of bold measures now, we can make improvements to the justice system that will last once the crisis is over.
Access to Early Advice
A first priority must be to rebuild our early advice infrastructure, and ensure those who need advice can easily access it. Since 2012, legal aid has been stripped from most areas of early legal advice, including housing, family matters, employment, welfare and immigration. The result is that issues which could have been easily resolved- for example, housing disputes – escalate into costly and time-consuming litigation.
In a time of crisis, when people find themselves isolated and alone, agencies like Citizens’ Advice not only provide much needed advice to the vulnerable, they also minimise the burden on our already overstretched justice system and protect the public purse from unnecessary cost. The government must take steps to redirect funding back into early legal advice and undo the damage of a decade of critical underinvestment. Failure to do so would serve no purpose other than to place our judicial system under additional pressure at a time when it simply can take no more. What steps is the government taking to restore Early Advice?
Re-opening the doors of the court system.
For matters which will inevitably result in litigation, the government must ensure that citizens have access to a functioning courts and tribunals system which is capable of dealing with a different types of cases quickly, efficiently and transparently.
Crown court criminal cases:
As a result of Covid-19 jury trials up and down the country are stalled. Victims and defendants alike are stuck in limbo as trials are postponed indefinitely. To continue in this manner for an indeterminate time would result in a backlog of cases which could seize the wheels of justice for many years to come. The government must act urgently to allow jury trials to restart in a way that is safe.
In the past month there has been speculation over whether remote jury trials could be used to reduce the current burden on the criminal justice system and restart jury trials.. While remote technology should be embraced when appropriate, it should treated with healthy skepticism with regards to criminal jury trials.
Labour is concerned that remote trials will require jurors to have access to a quiet and private environment, as well as expensive technology, to take part. Unfortunately, many people across the country do not have such an environment, or access to the required technology. Until comprehensive solutions are found to prevent remote juries from becoming socially unbalanced juries, we cannot support them.
In the absence of further trials and subsequent advancements in methodology, the government’s main priority must be to find an alternative to allow jury trials to continue in a way that is safe and follows public health advice. Large courts and other large public spaces which are currently sitting empty could be used to allow socially distanced trials to take place, as it fits with advice from Public Health England.
What steps has the Ministry of Justice taken to assess the number of large courtrooms standing idly across the country? What steps have you taken to assess the steps needed to convert these courtrooms into socially distanced trial spaces? How long would this process take?
The same considerations, in relation to safety, apply to the Magistrates’ Courts. As the Magistrates’ Courts are the first courts to which all criminal cases are referred to, it is vital that they are able to continue their work throughout the crisis. If the Magistrates’ Courts cannot function, the rest of the criminal justice system stands still.
With this in mind, it is vital that the government develops urgent plans to ensure that Magistrates trials are able to proceed in accordance with advice from Public Health England. In the meantime, Magistrates should be given guidance to complete as much other business by alternative means, for example, by post or remotely. Once more, the overwhelming priority of the government should be to enable courts to function without jeopardising the health of those involved, or the legitimacy of due process.
During the Covid-19 crisis, families across the country find themselves under immense strains of lockdown, economic pressure and employment concerns. It is imperative that the government ensures services which support families in times of crisis are properly funded, and able to provide protection to children, and those suffering domestic abuse. As you will be aware, since the beginning of the pandemic, numerous support organisations have seen a marked increase in the number of people requesting support as a result of domestic abuse.
It is vital that family courts are able to hear urgent cases, and grant emergency orders to protect the safety of children and survivors of domestic abuse. While some family law matters are currently being dealt with remotely, it is clear that this strategy has its limits. The courts should always tread carefully when making child welfare considerations if parents are giving evidence remotely by zoom or telephone.
Once more, the focus of the government’s efforts must be to implement measures, like the criminal courts and magistrates courts, to ensure that family courts are able to sit in a focused manner and in accordance with advice from Public Health England. Has the Ministry of Justice taken any measures so far to ensure that family proceedings can proceed not only remotely, but also in person? What measures have been put in place to ensure that authorities who investigate allegations of harm to children have the necessary personal protective equipment to ensure their own safety, as well as that of the child?
Civil courts and tribunals
Some civil courts and tribunals, such as those covering mental health and special needs, have managed to implement remote hearings. However, a number of other tribunals, such as those covering immigration and employment, are not hearing cases. Unless measures are put in place urgently to allow interested parties to attend tribunals, a backlog will develop very quickly. What contingencies has the Ministry of Justice put in place to deal with the backlog of cases tribunal cases? How many tribunal cases are currently backlogged?
Even in a time of national emergency, open justice is a human right that underpins the justice system and the public’s confidence in its ability to function. As a result of the Covid-19 lockdown and the restriction on all non-essential travel, it is currently not possible for the public to attend court.
In order to maintain open justice, it is imperative that all criminal hearings must remain open to the public. If it isn’t possible for the public to physically attended hearings, the government must act urgently to ensure that the public are given alternative access. In practice this means that, with the exception of certain family, criminal and youth cases, all courts should be streamed online. Proceedings at the Supreme Court can already be observed in this way. Once these reforms are in place, there can be no turning back. Streaming court cases online is a reform we should keep.
Is the government taking steps to ensure the public can observe live court proceedings online? If not, what alternatives is the government pursuing to maintain its commitment to open justice, and maintain the confidence of the public in the justice system?
Protection of legal professionals
Since taking my post in the Shadow Cabinet, I have been inundated with serious concerns from the Bar Council that Covid-19 could spell the end of the public Bar as we know it in England and Wales.
As you may be aware, a survey conducted by the Bar Council of 145 chambers showed 67% of criminal chambers, and 55% of all chambers, felt they could close in three to six months without further financial support from the support. While 80% of the Bar are classed as self-employed, very few find themselves eligible for the government’s Self-employment Income Support Scheme (‘SEISS’). This is partly due to the trading-profit threshold of £50,000, but it also because many junior barristers who have just completed pupilage – often the youngest barristers in the country, and already saddled with thousands of pounds worth of debt- can’t access the scheme as they don’t have tax returns for 2018-2019.
The chambers which are most likely to close as a result of hardship caused by the covid-19 crisis are disproportionately those which rely on legal aid. Incidentally, those chambers which rely on legal aid are home to some of the most ethnically diverse barristers. 55% of BAME barristers earn more than half their income from legal aid work. As a result, if these chambers close, the profession will become even less diverse than it currently is.
What steps, if any, is the Ministry of Justice taking to secure further financial support from the Treasury to assist barristers and ensure the survival of the public Bar? Have you considered making representations, for example, for a tapering of the £50,000 threshold, or for chambers to exempt from business rates? Have you considered requesting a rescue fund for barristers who derive the majority of their income from criminal legal aid, but find themselves ineligible for SEISS?
It would be wrong to suggest that members of the Bar are the only legal professionals struggling to survive during the Covid-19 crisis. Over the past two weeks I have spoken to many solicitors’ groups who have made it clear firms up and down the country face closure as a result of savage cuts to legal aid, and reductions to solicitors’ fees.
As far back as 2014, the Otterburn report warned that the financial position of most criminal solicitors firms was ‘precarious’ with profit margins often of between 3-5%. Within weeks of the publication of the Otterburn report, the Ministry of Justice cut 17.5% from criminal Solicitor Legal Aid rates and further reduced the scope of legal aid. While the final cut to legal aid rates was limited to 8.75%, this has still not been reinstated. This is further compounded by the fact most criminal solicitors haven’t received a fee rise beyond inflation since the 1990s.
In many respects, it seems like without urgent financial assistance from the government, the Covid-19 crisis could be the final straw which results in many solicitors- and especially criminal defence solicitors- closing their doors for the last time. Even before this crisis, in the past decade the number of duty solicitors decreased by 33% and many areas of the country have no duty solicitors at all.
It is vital that the Ministry of Justice acts now with the Treasury to ensure that solicitors, and in particular criminal defence solicitors, receive the financial assistance they need in order to maintain their services. What steps is the Ministry of Justice taking to ensure that the legal professions survive after the covid-19 crisis? Has the Ministry of Justice called for solicitors to be exempt from business rates during the crisis, or at least receive a reduction in the rates they pay? Will the Ministry of Justice commit to reinstating the 8.75% cut to legal aid rates? Will the Ministry call on the Legal Aid Agency to amend its rules so that firms do not see reductions in Standard Monthly Payments until the crisis is over?
Legal framework post Covid-19
Finally, in the interests of human rights and civil liberties, it is necessary and right for the government to devise a proper legal framework that gives it the powers necessary to manage the pandemic, but also contains safeguards to ensure these powers are not unlimited, nor abused. This should be done by way of a properly scrutinised Act of Parliament, which also includes when these powers will become dissolved. Has the Ministry of Justice started this process? When can we expect an Act to come before the House?
The Covid-19 crisis poses some of the greatest challenges this country’s criminal justice system has faced in the modern era. It is clear it will not be over in a matter of weeks. Furthermore, there is no possibility of returning to the status-quo. The actions the government takes in the coming weeks should not only consider the immediate crisis, but also keep in mind the justice system we want to see in years and decades to come. After a decade of savage cuts, and years of undervaluing our legal professionals, we now have an opportunity to create a better and fairer system which works for all.
Rt. Hon. David Lammy MP
Shadow Lord Chancellor and Shadow Secretary of State for Justice
Rt. Hon. Lord Charles Falconer QC
Shadow Attorney General