UK government ministers condemned for anti-lawyer rhetoric
JENNIFER VENIS, IBA MULTIMEDIA JOURNALIST
UK government ministers face increasing condemnation for verbal attacks on the legal profession in the aftermath of an alleged terrorism incident at a London firm.
In early September last year, a member of the public allegedly threatened to kill a lawyer at a law firm’s office in Harrow. He has been charged with preparing terrorist acts, among other charges that include actual bodily harm, making a threat to kill and a racially-aggravated public order offence. At the hearing, prosecutors alleged the motivation was connected to ‘the firm’s involvement in preventing the government from deporting people’. The man charged has yet to enter a plea.
Days before the incident, Home Secretary Priti Patel had tweeted to complain that Home Office ‘removals continue to be frustrated by activist lawyers’, despite the Home Office being condemned for a video using the same language only days earlier. The Law Society of England and Wales had criticised the ‘dangerous and misleading’ video that claimed government attempts to remove ‘migrants with no right to remain in the UK’ were blocked by ‘activist lawyers’ delaying and disrupting returns by ‘abus[ing]’ return regulations.
The video was removed from circulation and replaced with one that does not reference ‘activist lawyers’, but the Home Secretary continues to use the phrase.
Philip Rodney, former Member of the IBA Senior Lawyers’ Committee Advisory Board, tells Global Insight that he finds it ‘breath-taking that a government channel should seek to disparage as “activists” lawyers who work within the limits of the law to uphold the rights of those whom they represent. The ability to scrutinise executive powers and protect the interests of our clients is an essential part of the rule of law’.
‘I can’t recall in more than 40 years of practice seeing that sort of language being used by government in an attempt to discredit lawyers who are just doing their jobs,’ he adds.
Although concerns were raised about the connection between ministers’ language and the incident in the aftermath of the alleged attack, ministers have continued to politicise the work of lawyers representing asylum seekers.
At the Conservative Party Conference in early October last year, the Home Secretary gave a speech in which she denounced ‘lefty lawyers’ working within the ‘fundamentally broken’ asylum system.
Other government figures have also echoed the Home Secretary’s rhetoric, including Parliamentary Under Secretary of State at the Home Office and Ministry of Justice Chris Philp who accused lawyers of ‘playing politics’ in a leaked letter to another MP.
Home Secretary Priti Patel attends a Cabinet meeting of senior government ministers in London, 1 September 2020. REUTERS/Toby Melville/Pool
Several law firms have since revealed security concerns. At a UK Home Affairs Committee meeting in November, the Committee was told law firms working on immigration cases have received an increased amount of serious threats and abuse from the public, and have subsequently bolstered their security.
The Home Office declined to respond to Global Insight’s questions regarding an alleged connection between ministers’ language and the alleged attack on the law firm, and other firms’ security concerns. It also declined to comment on whether ministers had committed to changing their language.
Representatives of the legal profession have condemned ministers’ language from the outset, particularly following the alleged attack. In late October last year, more than 800 legal professionals and former judges signed a letter accusing the government of ‘hostility’ towards lawyers representing asylum seekers. The letter called for the ministers to apologise for attacks that ‘endanger not only the personal safety of lawyers and others working for the justice system, as has recently been vividly seen; they undermine the rule of law, which ministers and lawyers alike are duty-bound to uphold’.
In response, a government spokesperson said in a statement that: ‘The government rejects the underlying insinuation in this letter and is clear any form of violence is unacceptable. Lawyers play an important role in upholding the law and ensuring people have access to justice. They are however not immune from criticism.’
Lawyers in the field tell Global Insight it is ‘astounding’ that not only did government ministers and the media not cease the use of inflammatory language once they became aware of the alleged attack, but that they doubled down on it. There is a sense of dread, they say, not only of physical attack but of how the Home Office and the press will respond to their work.
Some lawyers are calling for an independent inquiry or other investigation into the government’s approach to the legal profession.
A statement from the International Bar Association (IBA) and its Human Rights Institute (IBAHRI), published in November, argues that constructive criticism is acceptable, but that ministers’ comments constitute a ‘dangerous state-endorsed rhetoric’, which is ‘part of the government’s wider attack against the rule of law’.
Jamie Potter, Co-Head of the Public Law and Human Rights team at Bindmans, spoke to Global Insight about the government’s attitude to challenges through judicial reviews. ‘If they’re attacking us, it’s because what we’re doing is working,’ he says. ‘So we can’t really do anything but keep going. We can’t let them off the hook.’
Sternford Moyo announced as new IBA President
Sternford Moyo, Chairman and Senior Partner of Zimbabwean law firm Scanlen & Holderness, has assumed the IBA presidency with a two-year tenure through to 31 December 2022. He is the first IBA President of African descent in the history of the 74-year-old organisation.
Sternford has held numerous senior roles across the IBA including Co-Chair of the International Bar Association’s Human Rights Institute, Chair of the African Regional Forum and positions on the IBA Council and Management Board.
Recognising the achievements of his predecessors and committing to building on their efforts, he commented: ‘It was great and visionary leadership that conceived and implemented the idea of the International Bar Association: to create relationships and exchanges among individual lawyers, bar associations and law societies; to pursue capacity building for bar associations; to promote continuing professional development in order to enhance service to the public; to protect and promote the rule of law, human rights, effective administration of justice and core values of the legal profession; to promote harmonisation and uniformity in the resolution of difficult legal problems; and to work with international juridical organisations.’
‘I am pleased to say that I stand on a platform of excellent work done by my predecessors and the employees of the association. My role shall be to work towards deepening the fulfilment of the objectives of our association and increasing diversity, eliminating all forms of discrimination in the practice of law and administration of justice.’
The IBA’s new Vice-President is Almudena Arpón de Mendívil. Almudena is a partner with the Spanish law firm Gómez-Acebo & Pombo, where she leads the Technology, Media and Telecommunications Group. A member of the IBA for more than 20 years, she joined the IBA Management Board in 2009 and has held several IBA senior leadership roles, including IBA Secretary-General, Treasurer and Chair of the Legal Practice Division.
New e-book available: Contested Histories in Public Spaces
The IBA is publishing a new e-book, Contested Histories in Public Spaces, which launches on 11 February 2021.
The book focuses on topics including slavery, colonialism, mass atrocity, human rights abuses and more. It comprises ten in-depth case studies of contested legacies in public spaces around the world., The book is the product of a multi-year initiative undertaken by the IBA, the Institute for Historical Justice and Reconciliation and Salzburg Global Seminar. The purpose of the text is to analyse controversial historical legacies and their contexts, and also to provide decision-makers with guidance and best practices when responding to future cases.
The book launches via a webinar on 11 February, with a panel of distinguished speakers including Baroness Usha Prashar, a crossbench member of the House of Lords, Ambassador Lamberto Zannier, former OSCE High Commissioner on National Minorities and Harriet Senie, member of the New York City Mayoral Advisory Commission on City Art, Monuments and Markers.
For more information about the project, visit the Contested Histories page
Register to attend the virtual book launch here
IBA webinars 2021
IBA webinars are a great tool for increasing knowledge and interacting with other legal professionals. The IBA’s webinar programme, a major focus for the Association through 2020, has started strongly in 2021 with numerous sessions taking place across the various committees and groups. Topics covered so far have included innovation in legal project management, mentoring programmes, bribery and corruption in the energy sector and developments in European M&A.
Forthcoming webinars already organised for this year will look at intellectual property in the Asia Pacific region, international law and the environment, Covid-19 and criminal liability and leadership training, with many more currently in the planning stage. All webinars are free to IBA members to attend and many are free for non-members too.
See the webinar and events list on the IBA website
Exporting artworks and the law
The IBA Art, Cultural Institutions and Heritage Law Committee has published a report entitled Art law: Restrictions on the export of cultural property and artwork, which looks at the law around such exports in 14 jurisdictions worldwide. A valuable starting point for any practitioner in the field, the report also presents information on protection of cultural property, consequences in case of violation of export restrictions, restitution and repatriation of illegally exported cultural property and due diligence obligations across the jurisdictions.
Download country reports individually or the complete report here
Two IBA Financial Services Section committees publish survey results
Two IBA Financial Services Section committees have recently published substantial reports on surveys they have carried out.
The IBA Banking Law Committee has undertaken a comprehensive survey of emergency measures implemented in the context of the Covid-19 pandemic to financially support private companies and consumers, mitigate the impact of the outbreak on financial contracts and payment obligations and avoid systemic insolvencies. The survey responses are now published in a report and cover a selection of jurisdictions from Africa, Asia, Europe and North and South America.
The report provides a comparative description of measures under a standard grid of questions around four themes, namely: emergency funding through state guaranteed loans and sectorial support; relaxation of regulatory requirements for lenders; stay or rescheduling of statutory time periods and of contractual obligations, and temporary changes to insolvency; and work out frameworks.
The report is intended to assist practitioners in understanding risk patterns, trends, challenges and opportunities, and in preparing for adjustments in their fields of practice from a domestic and international perspective. Further, it is expected that the report will provide a base of reference to explore new paradigms in banking and finance that may emerge out of the Covid-19 crisis, and their impact on banking and financial services, markets and players.
The IBA Securities Law Committee has completed a survey, spanning over 25 jurisdictions, on form requirements. Topics include the creation and transferral of ‘dematerialised securities’ and the use of electronic signatures.
Example questions posed in the survey include whether a jurisdiction has a general form requirement for contracts; whether a jurisdiction has specific form requirements in connection with the purchase, sale, issuance, transfer or listing of securities; and whether handwritten ‘wet ink’ signatures are required.
New discussion paper continues IBA work on bullying and sexual harassment in the legal profession
The IBA’s Legal Policy & Research Unit (LPRU) has continued to prioritise and drive positive change within legal workplaces around the world with the publication of a thought-provoking discussion paper on ‘Trust Tech’ – technology that enhances and propagates trust in professional settings.
Innovation-Led Cultural Change: Can Technology Effectively Address Workplace Harassment?, authored by Kieran Pender and Emma Franklin, explores how the emerging field of Trust Tech empowers workplaces, representative bodies and regulators to provide flexible channels for targets to report incidents. The authors write that, while traditionally ‘the fear of retaliation means many targets choose to remain silent’, technological solutions are ‘at the forefront of new efforts to facilitate reporting’.
The paper directly addresses the seventh recommendation – ‘Explore flexible reporting models’ – of the LPRU’s Us Too? Bullying and Sexual Harassment in the Legal Profession report, published in 2019. Us Too? encouraged workplaces to ‘investigate the potential utility of technological solutions’.
Pender explains there’s no one solution to effectively addressing inappropriate behaviour within law. ‘Instead, we require a range of innovative solutions that can change the culture that facilitates bullying and sexual harassment, and empower targets to speak up when it does occur,’ he says. ‘Trust Tech is one piece of the puzzle – and an innovative and exciting puzzle piece at that.’
Access to justice: pandemic forces courts to incorporate remote technology
JOANNE HARRIS
The Covid-19 pandemic has forced the introduction of remote hearings, e-filing and similar measures globally. However, the success of remote technology to facilitate court hearings varies.
While commercial and civil practitioners are generally happy with their roll-out, in the criminal courts, remote hearings are less common and the challenges of handling cases while protecting those involved from Covid-19 are proving tricky to overcome.
The requirement for criminal defendants to appear in person, while managing social distancing, is a challenge few jurisdictions have successfully managed. An IBA Litigation Committee report produced in June 2020 showed that while most countries have set rules requiring ‘urgent’ criminal hearings to go ahead, delays are rife.
In England and Wales, the tension between keeping trials running and keeping the courts ‘Covid-secure’ is at breaking point. The Lord Chief Justice, Lord Burnett of Maldon, said in early January that the facilitation of remote attendance was the ‘default position’. However, some courts have issued statements saying this is not possible.
In a statement published in mid-January, the UK’s Criminal Bar Association said failure to move to more remote hearings and minimising in-person appearances would mean ‘there will come a point when the courts become too unsafe to continue’.
A question remains, however, as to whether defendants’ human rights are infringed if they do appear virtually. A report produced by the United States-based Brennan Center for Justice in September highlighted a study which found that higher bond amounts were set for defendants in criminal bail hearings conducted virtually, compared to in-person.
On the other hand, the report also found that video hearings could improve access to justice for those in remote areas, or those who lacked the time or resources to travel to court.
Jane Anderson, Co-Vice-Chair of the IBA Access to Justice and Legal Aid Committee, who is based in Australia, says a combination of investment in infrastructure and training and the adoption of protocols and rules could well help alleviate the pressure on criminal justice systems.
Anderson says of holding criminal proceedings remotely, ‘if you’re a judge that’s prosecuting, you’ve often got a lot of parties who you’re having to control and direct in an environment where they’re not all in the same place. That poses challenges but they’re not insurmountable’.
She agrees that concerns that a witness or defendant’s credibility might be reduced if they are not present in person are valid, but adds that ‘as our technology improves and our connectivity improves there’s potential for these concerns to be mitigated. It’s important to look at these new ways of conducting hearings and trials and see how they might be appropriate in the future. It might not be an either/or’.
‘Let’s see how we can use this positively so that access to justice isn’t denied but is enhanced and widened,’ says Anderson, who suggests the legal profession can lead in this.
The Brennan Center report says more research on the potential impact of remote technology on outcomes in a diverse range of cases, and consultation with a broad range of stakeholders, was necessary to help courts develop policies and protocols.
Remote justice in civil cases, meanwhile, is welcomed.
‘Commercial law has had it pretty easy. The switch to remote hearings has been ridiculously smooth,’ acknowledges Tim Strong, Co-Chair of the IBA Litigation Committee and a partner at Taylor Wessing.
Strong says that in England and Wales the commercial courts were running hearings and trials over a range of video platforms within a month of the first UK lockdown last March.
‘I’ve not had a conversation with anyone who’s said that they’re worried that the courts aren’t doing justice to cases,’ Strong adds.
In the US, many civil trials have the additional burden of requiring a jury to be present, making remote trials more challenging.
‘Most of the civil jury trials that have been done remotely are where there have been only two parties and a limited number of witnesses and a limited number of issues. For cases that involve any complexity at all most lawyers would want to be in court, and certainly most judges prefer that as well,’ says Frederick Acomb, Senior Vice-Chair of the IBA Litigation Committee and a partner at Miller Canfield.
However, US pre-trial hearings have gone virtual and have been welcomed by practitioners.
‘It gives much more of a feeling that things are happening, you’re participating and you’re getting your issues across,’ says Chris Helmer, Senior Vice-Chair of the IBA Litigation Committee and a partner at Miller Nash Graham & Dunn.
Despite these challenges, practitioners believe the adoption of video technology to keep the courts running during the pandemic will have a lasting effect – at least for shorter hearings and case management globally.
‘There’s a clear need to simplify the way justice is rendered and also in an easy way to make the process quicker, safer and easier to understand for the parties,’ concludes Jacques Bouyssou, Vice-Chair of the IBA Litigation Committee and a partner at Alerion Avocats.
For more on this subject, watch a recording of Open for justice in the Covid age - how courts have responded to the pandemic at the IBA 2020 - Virtually Together Conference.