The Future Lawyer Weekly Update – w/c 25th May

The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.

Medical Law

Organ donation in England becomes opt out

Reported by Ellena Mottram

Since organ donation was introduced in England and Wales, the system was opt in, meaning donors had to sign up to the organ donor register to be listed as donors. However as of 20 May 2020 the system in England will move ‘opt out’. The system in Wales changed in 2015.

The opt out system means that all adults in England will be classed as organ donors when they die as consent will be presumed, unless they have recorded a decision not to donate or are in one of the excluded groups.

The excluded group includes those who are under the age of 18, those who lack mental capacity to understand the new arrangements and those who have lived in England for less than 12 months.

This consent can however be removed where the family intervenes, or the individual opts out. The consent of the family will be required for organs or tissues to be removed.

It is reported that less than half of families give consent for organs to be donated where they are unaware of their wishes. They are however much more likely to honour their families wishes where they are aware of what their loved ones wanted. The NHS has therefore stressed that it is important for people to choose whether they want to be a donor and discuss what they want to happen with their family so that the decision is clear.

The law known as Max and Keira’s law after a boy whose life was saved after receiving the heart of a nine-year-old girl who died in a car crash, is expected to save hundreds of lives each year. The change in the law is hoped to lead to an additional 700 transplants by 2023 and increase the conversation around organ donation in England.

Prior to the introduction of the new law 80% of adults in England said that they would consider becoming a donor but fewer than 40% had actually signed up. The law in Wales changed in 2015 and it is reported that the consent rate has risen from 58% to 75%.

There is currently a shortfall of organ donations in the UK. Currently there are around 6000 people on the Transplant Waiting List in the UK. In 2019 alone over 400 people died whilst waiting for a transplant.

The director of Organ Tissue Donation and Transplantation welcomed the new legislation and that that the organizational hope ‘this law change will prompt all of us to consider whether to not we would want to donate our organs and encourage us all to register and share our decision with family and friends.’

Currently in Scotland and Northern Ireland, the rules have remained opt in, in relation to both organ and tissue donation. The Scottish Parliament has however unanimously voted in favour of an opt in system and it is set to be introduced in Scotland next year. In Northern Ireland it was decided that organ donation would remain in its current form back in 2016.

You can find more here or here.

Legal Tech

The LawtechUK Sandbox

Reported by Jasmine Cracknell

Technological growth platform Tech Nation have recently announced an initiative that could see a ‘huge boost’ to innovation in legal tech.

LawtechUK will be a government-backed, collaborative effort between Tech Nation, the Lawtech Delivery Panel and the Ministry of Justice and will aim to accelerate the UK’s position in the world of legal tech.

The scheme is comprised of four projects: a dispute resolution platform for SMEs, a Lawtech hub, a guidance and training centre, and the Lawtech Sandbox. The Sandbox is at the heart of the scheme as it will bring technologists and law firms together to share and test new, innovative ideas.

The Sandbox was inspired by the success of the FCA’s regulatory sandbox, which is deemed to have propelled innovation and growth in the UK fintech sector since its introduction in 2016. The Lawtech Sandbox will facilitate research and development opportunities, alongside information and training on legal tech.

The platform will also be developed in collaboration with the SRA, the Legal Services Board and the Information Commissioner’s Office so that new solutions can be tested in a controlled environment with minimal risk of regulatory breach. It is hoped this will encourage more companies to bring innovative solutions to market and, at the same time, incentivise firms to integrate tech into their daily work. The Sandbox will also be particularly useful to smaller practices who may have been reluctant to delve into the world of legal tech due to the added expense of safeguarding around data protection.

Tech can be used in a range of ways to streamline legal services and complete legal transactions more efficiently, and while tech has been slow to enter the UK legal industry, more firms are now realising its benefits through reduced overall costs and better client experience. In fact, investment in UK lawtech has increased threefold in the last two years.

Through the introduction of the Sandbox, firms will now find it easier than ever to access effective technologies and trial them in their practices. Law Society president, Simon Davis, also emphasised the benefit this would have on the UK legal sector as a whole, stating ‘’the adoption of new technologies could boost the sector up from 1.3% per year to 2.7% per year’’ and allow the UK to “increase its contribution” to the global legal tech market.

Find out more here and here.

Security Law

Draft controversial Chinese Security Law to be implemented in Hong Kong

Reported by Laurence Tsai

The National People’s Congress of China announced on Thursday 21 May 2020 that it proposes a new law on Hong Kong’s national security regulations under the Basic Law in an attempt to place the semi-autonomous territory under its control.

Article 23 of the Basic Law provides that the city shall enact national security laws “to prohibit any act of treason, secession, sedition, subversion” against the Chinese government. However, Article 23 was never properly enacted due to public fears by Hong Kong citizens that it would diminish their fundamental rights. In February 2003, a proposed bill that attempted to enact the law caused considerable controversy in Hong Kong, resulting in half a million people taking to the streets in protest, so it was shelved.

Pro-Beijing lawmakers have increasingly pushed for the revival of these shelved laws, particularly due to the mass protests which commenced in 2019. While the COVID-19 pandemic postponed the protests, as lockdown restricts have eased in Hong Kong, small groups of protests have restarted. Thus, the Chinese government is adamant in taking control over the city immediately to ensure the protests do not enlarge any further. Perhaps Beijing hopes the new law will frighten future protesters or be used as a weapon to subdue protesters completely before the virus fully recedes. China’s official agenda is to improve national security protections in Hong Kong, deeming that such improvements are highly necessary.

Since the UK handed Hong Kong over to China in 1997, Hong Kong has operated under a one-country, two- systems framework which guaranteed it 50 years of autonomy, will all civil rights and freedoms preserved during that period. The fear and view among critics is that the new Chinese security law will likely mean the end of Hong Kong’s current way of life. Beijing construes “national security” as any act that criticises the communist party, so if the new law is imposed, it would clearly extinguish various liberties not available in mainland China, including freedom of expression and, thereby, disrupt the agreement. It can already be seen that China is disturbing the agreement before it officially expires, as Carrie Lam, Hong Kong’s chief executive, sought to introduce a law that will impose criminal penalties on people who mock the Chinese national anthem.

The controversy behind Article 23 raised international concern, leading to other countries responding to China if it implements the new law. The US has already taken measures that may jeopardise its trade relationship with China. For instance, the Hong Kong Human Rights and Democracy Act, broadly, provides that if Hong Kong’s autonomy is found to be eroded by Beijing, President Trump may revoke certain economic and trade privileges Hong Kong enjoys with the US that are not extended to China as a whole. A bill was also introduced in the US Senate that would penalise banks that did business with any entity enforcing the law.

Article 23 could be implemented by decree, which effectively bypasses Hong Kong’s legislative council. Though, analysts argue that this is unlikely due to the aggravation that would arise if such a manoeuvre were executed. Instead, it is likely that it will follow the proper procedure by sending it through to Hong Kong’s legislative council. Crucially, if Article 23 were executed by decree, such a provocative act may reignite the protests in 2019 and likely intensify the tension between the US and China. Preserving the economic relationship between the US and Hong Kong should be a key concern for Beijing in the impact of this law.

You can find more here or here.

Criminal Law

Criminal cases challenge posed by pandemic in England and Wales.

Reported by Emma Ducroix

The scale of the challenge to the justice system posed by the coronavirus pandemic is becoming apparent, as virtual hearings transform business in the higher civil courts but trigger alarms about the fairness of remote proceedings in the family and lower courts.

The criminal justice system in England and Wales is facing a backlog of 40,000 criminal cases, which will not be solved even if all crown courts are brought into service under physical distancing rules, the Criminal Bar Association has warned.

Reliance on video technology is accelerating the government’s pre-existing £1bn court modernisation programme but also throwing up questions about where it is appropriate: many unrepresented claimants do not have super-fast broadband or are among those categorised as “digitally excluded”.

Even before the pandemic, some criminal cases were being listed more than a year ahead due to austerity cuts in the number of allocated judges’ sitting days. With jury trials suspended, the backlog grew at 1,000 cases a month.

The justice secretary, Robert Buckland, is considering whether to rent commercial premises – dubbed “Nightingale courts” – with space to spread out jurors, lawyers and court staff. In December, the crown court backlog was 37,500 cases. Caroline Goodwin QC, the chair of the Criminal Bar Association added: “The lord chief justice this month estimated it was now around 40,000. Only when social distancing comes down from 2 metres to 1 metre can all the available courts be used for hearings.

“Once we have the existing crown court estate open and functioning to the maximum and operating within safe social distancing parameters, then HM Courts and Tribunals Service (HMCTS) may want to consider using other court buildings or other buildings, not presently part of the court estate.”

Labour’s shadow justice secretary, David Lammy, told the Guardian: “Unless we can really up the pace of bringing particularly criminal and some civil law matters, where vulnerable people need to be heard, we are heading for a very serious backlog which this generation of lawyers has never seen.

The Conservative former justice minister, Lord Faulks, warned that “justice delayed is justice denied”. He raised the prospect of trial by judge rather than jury in some cases. “There’s already a big backlog because the Ministry of Justice (MoJ) decided to restrict the number of sittings days,” he told the Guardian.

“I personally wonder whether we are not a bit too wedded to the concept of trial by jury … For a long time there’s been a view that fraud trials are really unsuitable for trial by jury. There are different ways you could do it; you could have a judge with a couple of magistrates.

There are attempts to reduce caseload pressure. Deputy chief constable Sara Glen, of the National Police Chiefs’ Council, has suggested forces consider whether more cases should receive a caution. The director of public prosecutions, Max Hill QC, on Thursday denied there has been “decriminalisation” of offences but said cases were being delayed during the crisis. However, he supported calls for forces to consider whether lesser offences which are charged by the police might be dealt with by cautions rather than court appearances.

The lord chief justice, Lord Burnett of Maldon, warned that the administration of justice had been “underfunded for years and years and the consequences are coming home to roost …” A HMCTS spokesperson said: “A huge amount of work has gone into increasing the use of video and audio technology to keep courts running during this unprecedented crisis. Measures to increase hearings and help reduce the number of outstanding cases are being considered and these will be set out in due course.”

Find out more here or here.