COVID-19: 6 months on
On Wednesday 9 September 2020, One Pump Court Chambers hosted a #YLALVirtual meeting reflecting on the effect of the COVID-19 pandemic six months on from the passage of the Coronavirus Act. The meeting explored how the pandemic has affected different areas of social welfare law and the criminal justice system since lockdown began in March. Ciara Bartlam, YLAL committee member and barrister at Garden Court North Chambers, chaired the meeting.
The first speaker was Rose Arnall, solicitor at Shelter, who talked about Shelter’s campaign to end DSS discrimination and their recent court victory during lockdown. She explained that many landlords have ‘no DSS’ policies which mean that they refuse to rent to applicants who receive state benefits. Despite Shelter’s campaign successfully raising public awareness of the issue in the two years since it launched, Arnall emphasised that in practice, DSS discrimination remains widespread. ‘No DSS’ policies put increased pressure on social housing and make it harder for people receiving benefits to access a safe home.
Arnall was proud to announce that for the second time ever, a UK court had ruled a ‘No DSS’ policy to be unlawful discrimination, this time after a contested final hearing. The judge ruled that under the Equality Act 2010, the estate agent’s ‘No DSS’ policy indirectly discriminated against the disabled claimant. They ruled that the policy had a disproportionately negative effect on disabled people as they were more likely to claim benefits than people without disabilities. This is an incredible victory for Shelter but their work is not finished. Arnall concluded by saying that Shelter currently have other ongoing cases involving DSS discrimination that they hope to bring to trial soon.
The next speaker was Rosalind Comyn, Liberty’s Senior Legal and Policy Officer, who talked about Liberty’s campaign to scrap the Coronavirus Act. Comyn explained that despite the Act containing some of the biggest restrictions on civil liberties the UK has ever seen including the power to cancel elections, ban gatherings and huge powers of detention, Parliament nodded it through in a single day. Comyn pointed out that, despite it being widely reported that it will lapse after two years, the Act does not contain a sunset clause and so could remain in force indefinitely. She then explained that the lockdown has no statutory basis as the Government implemented it using a Statutory Instrument.
Comyn argued that many of the powers the Act grants are unnecessary and an overreach of executive power. She voiced concerns that because these sweeping powers were drafted in haste without any real parliamentary scrutiny, they have diminished the role of Parliament and threaten the rule of law. She focused on Schedule 21 of the Coronavirus Act which empowers the police to detain potentially infectious people. A CPS investigation found that the police had never exercised these powers lawfully. Comyn advocated that, instead of using the threat of criminalisation to ensure compliance, the government should rely on clear messaging. She noted that Liberty has also gathered evidence that these powers have been applied in a racially uneven manner.
Comyn finished by saying that six months since the passage of the Act, the failings of the Government have opened up space for Parliament to criticise the Act. Parliament can review it in a few weeks’ time. However, it will be an up/down vote on whether they want to renew or repeal the entire Act.
Alice Irving, barrister at Doughty Street Chambers, spoke next. She discussed how the Coronavirus Act empowers the Secretary of State to downgrade the duties local authorities owe to vulnerable people such as children with Special Educational Needs (SEN) from being a mandatory duty to a duty only to make reasonable endeavours. Irving explained how Education, Health and Care Plans (EHCPs) place legal duties on local authorities to provide care for children with SEN. Prior to the pandemic, local authorities systematically failed to discharge these duties to children with SEN. Empowering the Secretary of State to ease these duties during the pandemic has only exacerbated the problem. The Secretary of State for Education issued these notices in May, June and July. Some parents challenged the notices through judicial review such as the Shaw case. However, by the time the case got into court, the Secretary of State for Education had already announced that he would not issue any more notices unless circumstances change. Shaw’s claim was therefore, unsuccessful and ruled to be purely academic. While Irving acknowledged that the Government needs to make difficult decisions quickly due to the pandemic, she felt that this should not exempt their decisions from parliamentary scrutiny or legal challenge. Despite the Shaw claim failing, it may be appealed – watch this space.
Irving finished her section by talking about her personal experience of the pandemic. In March her Chambers decided to not keep her on. She tweeted about her difficult work situation and luckily a barrister reached out. This has led to Irving working on ground breaking systemic challenges during the pandemic and later securing tenancy at Doughty Street Chambers. She finished on the hopeful note that, despite knockbacks, she has now found a chambers that fit her well.
The final speaker was Lady-Gené Waszkewitz, pupil barrister at 25 Bedford Row, who started practising during the pandemic. Waszkewitz spoke about virtual court hearings, something many herald as the way forward. While she appreciates that they have their time and place, she has found that virtual courts can disorientate clients. She discussed the struggle of trying to deliver her best advocacy in a virtual hearing despite technical difficulties and issues being able to hear the opposition. Waszkewitz felt strongly that virtual meetings with clients on bail are not as effective as in-person meetings. She also spoke of the challenges trying to get through to clients appearing from a police station and concerns about whether calls were truly confidential.
Waszkewitz then spoke about one of her youth clients who was so confused by their virtual trial that they could not work out who their lawyer was. She also talked about an incident where she had requested to appear at a trial by video link several times. When ignored, she turned up in person only to find that everyone else was there via link. These instances have convinced Waszkewitz that virtual trials are not the way forward for clients.
Waszkewitz then talked about her experiences with ‘bucket courts.’ This is when a court schedules lots of in-person hearings for one day and tries to get through as many as possible. The majority of cases have to be adjourned. This can lead to hundreds of people crowded into a court reception trying to find out when their hearing will be. This practice wastes time and money and exposes people to an unnecessary health risk. Waszkewitz cited the example of a man who broke down when told that his case had been adjourned as he had had to starve himself to afford the train ticket to attend his hearing and could not bear the thought of having to do it again. She ended by saying that, with Coronavirus causing such unacceptable delays and difficulties getting h
old of clients, it has been hard to do her job. She, like many other pupil barristers have complained about these issues but no tangible changes have occurred.
The event ended with questions for the panel. Ciara Bartlam then asked the speakers what each of them will take away from the last six months. Rosalind Comyn started by saying that her biggest takeaway is how much she values her colleagues. Rose Arnall followed with hopes that work adaptations such as flexible working will remain after the pandemic, though she worries about the digital exclusion of vulnerable clients. Alice Irving agreed and said she has also learned that the Bar is full of people keen to champion young barristers, including YLAL alumni! Lady-Gené Waszkewitz finished by saying that the pandemic has convinced her that she loves her job. The event was then brought to a close with a limerick by Rebecca Kingi.
We are very grateful to YLAL member Hannah Heilbuth for this write-up. If you’d like to volunteer to write up a future YLAL event, email jobs.ylal@gmail.com.