And in other news....

For those who have had enough of reading about our current pandemic, here are three recent legal stories, which reduce in their connection to coronavirus as they proceed.  

The first, which has full coronavirus connection, comes from a New York Times article about will-writing in England and Wales. It reported on the difficulties thrown up by the Wills Act 1837 (‘the first year of Queen Victoria’s reign’) regarding the two witnesses rule. Solicitors have ‘executed drive-by signings and signings through nursing home windows. They have pinned documents under windshield wipers and dog bowls.’

We know that the Law Commission was looking into a reform of the law of wills in 2017, but this was paused to undertake a review of the law concerning weddings. I wonder if anyone regrets that now? In response to a recent parliamentary written question, the government announced that it is reviewing the case for reform of will-making law given current circumstances, including further work on witnessing documents by video-conference generally.

The NYT article gently contrasted this position to that of the US. The US has the same two witness rule, but it had already been relaxed in many states to allow remote witnessing and other solutions, and the pandemic has led to further changes.

For instance, in California, holographic wills (entirely handwritten and signed by the testator) were already able to be admitted to probate, and there is now guidance that ‘California citizens who wish to have their documents notarized remotely can obtain notarial services in another state that currently provides remote online notarization’ – for instance, Montana.

In Maine, there is a new order modifying the in-person notarisation requirements, allowing video signature. Among the list of requirements is that the act of signing and initialing must be captured up close by the technology, and that the recording of the two-way audio-video communication must be preserved for the notary for five years.

Solicitors have put themselves in harm’s way during the current crisis to provide will-making services to their clients in line with our Victorian law. I hope that one of the benefits to emerge from the pain we are witnessing is that our law will be brought up-to-date with the possibilities of modern technology, while still offering appropriate protection to those who need it.

The second story relates to a recent Friday sermon in a mosque in Turkey on the subject of the Covid-19 pandemic given by an imam who heads Turkey’s Religious Affairs Directorate. During the sermon he blamed homosexuality and premarital sex for the spread of HIV.

The Ankara Bar Association filed a complaint against the imam with the Ankara chief prosecutor’s office on the grounds that the sermon constituted public provocation to hatred and hostility contrary to the Turkish Penal Code.

In response, the Ankara prosecutor’s office opened an investigation into the Bar Association on the grounds of ‘insulting the religious values adopted by a part of the public’, which is contrary to another part of the Turkish Penal Code. The justice minister has since endorsed the prosecutor’s criminal investigation. The Diyarbakır Chief Prosecutor’s Office has filed a similar investigation on the same grounds against the Diyarbakır Bar Association.

This case is a useful context in which to set the claims by Lord Sumption and others that our own coronavirus lockdown regulations, and their enforcement, are in danger of causing us to resemble a police state.

The final story has nothing to do with coronavirus, although even here there is a remote connection.

Germany’s constitutional court ruled a few days ago that the European Central Bank’s (ECB) 2015 bond-buying programme would be illegal under German law unless the ECB can prove that the purchases were justified. It gave the ECB three months to provide an acceptable justification, which it is believed the ECB will easily do.

The Court of Justice of the European Union (CJEU) had approved the programme in 2018, but, in effect, the German court said it would not honour the EU court decision. Shock, horror!

The interesting aspect from a lawyer’s angle is that the CJEU issued a press release late last week giving its view on the storm, which is a highly unusual move for the CJEU. It said it never comments on judgments of national courts, but … that it alone has jurisdiction to rule that an act of an EU institution (in this case the ECB) is contrary to EU law, adding that it was created for this specific purpose by the member states.

And the connection to the current pandemic? The EU is currently discussing the funding to be available to the member states to help them recover from the economic shock caused by lockdown, and there will doubtless be legal challenges ahead regarding its legality.

Stay alert!

Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe

All views expressed are personal and do not necessarily reflect the views of the Law Society Council