Already an IBA member? Sign in for a better website experience
The IBA’s response to the situation in Ukraine
The UK government faces a rising tide of legal action regarding decision-making during the Covid-19 pandemic. As Martyn Day, Co-Founder at Leigh Day in London, tells Global Insight, the handling of the pandemic has in some ways been ‘ripe for legal intervention’.
On behalf of UK healthcare workers, unions and legal campaign group the Good Law Project have been increasing legal efforts – which commenced in spring 2020 – to force a public inquiry into Covid-19 deaths among National Health Service (NHS) and care workers due to a lack of personal protective equipment (PPE).
Other cases are set to examine the protection of care homes and bans on visits to them, and UK Members of Parliament have joined one of the Good Law Project’s numerous judicial review proceedings that have been launched in respect of government procurement contracts and appointments. The Project has also launched judicial reviews regarding several other issues.
National Audit Office report
Investigation into government procurement during the COVID-19 pandemic
While some cases were launched in the spring, most gained traction and visibility during and after the summer, when there were opportunities for greater public awareness and scrutiny of government actions.
Earlier in the pandemic, some law firms saw less legal cases than they might have expected, particularly individual claims. Day was ‘surprised’, having expected ‘quite an avalanche of claims in relation to PPE, people not getting proper treatment,’ for example.
Day adds that in the individual claim cases that did come through, his firm found that most reached a resolution without needing to go through court. He says there seems to be more interest in reaching a resolution. ‘The powers that be,’ he says, ‘seem to be prepared to listen, perhaps in a way that wasn’t always true in the past.’
In fact, he suggests that the mere involvement of lawyers and suggestion of legal action was all the incentive needed to bring about change.
Day says that without major cases and group claims with substantial repercussions, firms were left with limited insight into how courts may respond to cases that did reach them, and accountability efforts were less visible to the public.
Jolyon Maugham QC, Director of the Good Law Project, tells Global Insight that in several cases his team brought in spring and summer 2020, the UK government ‘folded’ before the team could commence proceedings. The government changed course on a number of policy decisions after media concern and legal challenges during the height of the pandemic’s ‘first wave’ in spring.
At Bindmans, Jamie Potter, Joint Head of the firm’s Public Law and Human Rights team, suggests that a lack of access to legal aid could have reduced cases. Ministry of Justice (MoJ) statistics from September show a fall in the number of legal aid cases, despite an increase in demand for both civil and criminal legal aid.
The legal system has also been hit by significant delays through a reduction in court hearing hours. The MoJ’s report, Legal aid statistics quarterly, England and Wales April to June 2020, shows a 41 per cent reduction in Crown Court case expenditure during the given time period, and a 50 per cent decrease in work coming through the magistrate’s court compared to the same period in 2019.
The public’s mood may also have played a significant role. Potter, Maugham and Day all suggest there may have been a reluctance from the public – and the courts, lawyers felt – to challenge the government at the start of the crisis.
In April, Potter sent a pre-action letter to the government about exercise restrictions and the lack of exception for children with autism or other special needs. Even though the government changed the law in response to his letter – ‘unsurprisingly,’ he says, ‘the government could not think of everything and they were willing to listen to some concerns that were raised’ – Potter received unprecedented personal abuse from the public.
In some cases, courts have been keen to leave to the government decisions about policy response. Andrew Mackenzie, Member of the IBA SPPI Council Advisory Board and Chief Executive of the Scottish Arbitration Centre, highlights a judicial review case heard by Scotland’s Court of Session in December. Six operators of various hospitality businesses and a short-term let business sought interim suspension and reduction of the decision of the Scottish Ministers to continue the Level 3 restrictions for the City of Edinburgh.
‘Lord Ericht, endorsing the approach taken by the English Court of Appeal to challenges to English Covid regulations in R (Dolan) v Secretary of State for Health and Social Care, held that the decision by the Scottish Ministers was rational and proportionate’, explains Mackenzie. ‘Lord Ericht noted that the challenges facing government are primarily political, and that the Court will only intervene if a decision is unlawful’.
Potter believes it is particularly following several leaks and media investigations exposing the government’s handling of the crisis that the public and courts have increased engagement.
Several of the judicial reviews brought by Maugham’s team have been granted permission to proceed, and the Project has experienced surging support from the public regarding cases relating to government contract procurement in particular.
Day says the cases coming through now are likely just the beginning. With confusion and frustration around differing regional restrictions between national lockdowns and waning public patience, ‘it’s starting to break apart, and once that happens people will question more and more through the law what these rules and regulations are, and what science justifies them,’ Day says.
In November, the National Audit Office (NAO) published a report, Investigation into government procurement during the COVID-19 pandemic, which found ‘specific examples where there is insufficient documentation on key decisions, or how risks such as perceived or actual conflicts of interest have been identified or managed’. Legal action on PPE procurement that paused during the NAO investigation has now resumed.
For Maugham, a major area of legal action must be what he sees as a distinct lack of transparency from government. ‘Tens of billions of pounds have been spent and the government has by its own admission failed to comply with transparency obligations around that spending,’ he says.
Potter believes the UK is now seeing the consequences of the government going largely unchallenged and unscrutinised. Ministers, he says, ‘did not feel like the spotlight was on their decisions.’ He emphasises that in a crisis, proper processes and governance have added importance.