Weekly Notes: legal news from ICLR, 12 February 2024

This week’s roundup of legal news includes Chinese new law and draconian measures, legal aid, technology, data protection and probate law. Plus recent case law and commentary.

12 min readFeb 14, 2024

Welcoming in the Year of the Dragon (via Shutterstock)

International

Chinese new law

Under a new Ordinance which came into force at the end of last month, it will be much easier to enforce judgments across the (ever more feint) border between the People’s Republic of China and the Special Administrative Region and former British colony of Hong Kong.

The Mainland Judgements in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance Cap 645 (39 pages/ 461 KB) will implement the arrangement on reciprocal recognition and enforcement of judgements in civil and commercial matters by the courts of mainland China and Hong Kong SAR, which was signed by the authorities back in January 2019, but is only now coming into effect.

According to Pinsent Masons’ Out-Law blog, the new law provides “a more comprehensive and streamlined mechanism for reciprocal recognition and enforcement of judgments handed down by courts in the two jurisdictions”. It has been broadly welcomed by commercial lawyers. Mohammed Talib, disputes expert at Pinsent Masons said:

“Given the sheer volume of commercial and business activity between Hong Kong SAR and mainland China, the implementation of the ordinance is a positive step forward, helping to protect parties, enable consistent outcomes and enhance predictability for cross-border transactions.”

Cross-border legal activity is not always so welcome. Under the National Security Law (NSL) of Hong Kong, enacted by China in 2020, the authorities have clamped down not just on public protest in the region but also on practically any kind of political opposition. Newspapers have been shut down and their writers, editors and proprietors charged with newly created offences, as well as creatively applied old ones. The law may truly be termed draconian, as we enter the Year of the Dragon.

Jimmy Lai, a British citizen, is currently on trial in Hong Kong under the controversial NSL and colonial era sedition laws. He has been imprisoned since 2020, following his arrest after a police raid on the offices of his newspaper, Apple Daily, once Hong Kong’s most popular independent Chinese language newspaper, now closed. As a high-profile supporter of the Hong Kong pro-democracy movement, Lai is an obvious target for the NSL. His current trial commenced on 18th December 2023 and is likely to take several months, according to Doughty Street Chambers, some of whose members (led by Caoilfhionn Gallagher KC) are representing him.

Last month the UN Special Rapporteur on Torture, Dr. Alice Jill Edwards, wrote to authorities in China to address claims that the evidence of a listed key prosecution witness in Lai’s trial had been obtained through torture.

Legal Aid

NAO report

Ten years after it last did so, the National Audit Office has reported on civil legal aid. In its 2014 report the public spending scrutineer found that while the reforms introduced in the previous year (under the Legal Aid, Sentencing and Punishment of Offenders Act 2012) had been successful in reducing legal aid expenditure, the wider impacts of the changes were poorly understood by MoJ.

The new report also covers criminal legal aid, on which the NAO has not reported since LASPO was implemented. Its findings are fairly critical, suggesting the cuts in legal aid have proved both damaging to the administration of justice and a false economy, resulting in overall poor value for money.

The report concludes that

“Since we last reported, MoJ has done some work to better understand the impact of its reforms and is aware of several areas where changes may have shifted costs elsewhere within government. But it still lacks an understanding of the scale of these costs and so cannot demonstrate how much its reforms represent a spending reduction for the public purse overall.
Meanwhile, stakeholders have continued to raise concerns about the reforms’ detrimental impact on the efficiency of the wider justice system, including the removal of early advice, and the increase in people representing themselves in courts. The increase in self-representation in family courts is largely due to MoJ’s failure to divert people to mediation as planned, which has undermined its objective of reducing unnecessary litigation. MoJ must now build its evidence base on the costs and benefits of providing legal aid at different stages to ensure that it is achieving value for money from its choices.
MoJ has set providing swift access to justice as one of its primary objectives. Theoretical eligibility for legal aid is not enough to achieve this objective if there are an insufficient number of providers willing or able to provide it. MoJ must ensure that access to legal aid, a core element of access to justice, is supported by a sustainable and resilient legal aid market, where capacity meets demand.
It is concerning that MoJ continues to lack an understanding of whether those eligible for legal aid can access it, particularly given available data, which suggest that access to legal aid may be worsening. Also concerning is its reactive approach to market sustainability issues. MoJ must take a more proactive approach and routinely seek early identification of emerging market sustainability issues, to ensure legal aid is available to all those who are eligible. Until then, it cannot demonstrate that it is meeting its core objectives and so securing value for money.”

Read the report: National Audit Office, Government’s management of legal aid

Technology

AI regulation

Following its initial consultation white paper on A pro-innovation approach to AI regulation, published in March 2023, and the ensuing responses, the government has now issued its own response. It proposes an overall approach combining cross-sectoral principles and a context-specific framework, international leadership and collaboration, and voluntary measures on developers. It suggests legislation will be needed, but not yet — not until we know all the risks and rewards. It says:

“As AI systems advance in capability and societal impact, it is clear that some mandatory measures will ultimately be required across all jurisdictions to address potential AI-related harms, ensure public safety, and let us realise the transformative opportunities that the technology offers. However, acting before we properly understand the risks and appropriate mitigations would harm our ability to benefit from technological progress while leaving us unable to adapt quickly to emerging risks. We are going to take our time to get this right — we will legislate when we are confident that it is the right thing to do.”

Michelle Donelan MP, Secretary of State for Science, Innovation and Technology, says she “plans to make Britain the safest and most innovative place to develop and deploy AI in the world”.

Data protection

Horizons report

The Information Commissioner’s Office (ICO) has issued its second Tech Horizons Report, highlighting the implications of the most significant technological developments for privacy in the next two to seven years.

The original report, in 2022, considered four developing technologies,

consumer health tech (such as wearable devices)
next-generation Internet of Things (IoT): physical objects that connect and share information
immersive technology: augmented and virtual reality hardware that creates immersive software experiences for users; and
decentralised finance: software that employs blockchain technology to support peer-to-peer financial transactions.

This new report covers a further eight new or developing technologies:

Genomics: The sequencing of the human genome to improve understanding of a broad range of traits, mostly used in healthcare. There is further potential for these insights to be used in fields such as employment, sports and education.
Immersive virtual worlds: Highly immersive virtual environments, also known as the metaverse, in which users can interact with each other and make use of digital services, such as e-commerce and gaming.
Neurotechnologies: Consumer, enterprise and healthcare devices and procedures, both invasive and non-invasive, that directly record and process neuro-data to gather information, control interfaces or devices, or modulate neural activity.
Quantum computing: By taking advantage of phenomena at the atomic scale, quantum computing may in future be able to resolve highly complex computational problems that current computers cannot, but may also present serious risks to existing encryption.
Commercial use of drones: Unmanned aerial vehicles (UAVs) used in commercial settings, for example in delivery and e-commerce, monitoring, and crowd control.
Personalised AI: The customisation of large language models, based on individual users’ search patterns and personal preferences and characteristics, to create more tailored user experiences and better-targeted outputs.
Next-generation search: Next generation search engines incorporating new technologies, such as embedded AI capabilities, as well as voice-based, image-based and ambient elements.
Central bank digital currencies (CBDCs): A new form of central bank-issued digital money, which would complement physical cash and other payment mechanisms in facilitating everyday payment needs.

These are addressed both individually and in terms of overarching trends and dynamics, such as the collection of novel types of intimate information about people.

Surveillance goes underground

A report in Wired raises concerns about the collection of personal data from passengers on the London Underground. Matt Burgess explains how, in a test at one station, Transport for London used a computer vision system to try to detect crime and weapons, people falling on the tracks, and fare dodgers. But lack of good training data seems to have made the results unreliable, and for obvious reasons there was no public warning of the trial in progress.

Wired: London Underground Is Testing Real-Time AI Surveillance Tools to Spot Crime

Probate

Video witnessing ended

The government has decided not to extend further the pandemic measure permitting the video-witnessing of wills. The measure, introduced during the pandemic lockdowns to permit vulnerable people who were self-isolating to witness wills remotely using video technology, was introduced by the The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020, in relation to wills made from 31 January 2020 to 31 January 2022. That was extended in 2022 to include any will made up to 31 January 2024.

The question whether wills should be made and witnessed in a more tech-savvy and future-proof way may require a more comprehensive rethink. The Law Commission has been running a consultation on reforming the law of wills since 2017. The project was paused between 2019 and 2022, during the pandemic when the temporary measure permitting video witnessing was available.

The commission then published a Supplementary Consultation Paper, on 5 October 2023 on two topics: possible reforms to enable electronic wills and to the rule that a marriage or civil partnership revokes a will. The supplementary consultation period closed on 8 December 2023. It aims to publish a final Report and a draft Bill enacting its recommendations in early 2025.

See also: Legal Futures, Government brings video-witnessing of wills to an end

Other recent items

Public order: protests

The government plans yet further restrictions on public protests, including a ban on face coverings where police have a “reasonable belief” they are being worn to intimidate and threaten others while hiding their identity, and to make it an offence to climb on a war memorial. The use of pyrotechnical flares is also prohibited. (But does that extend to football supporters?)

Politics: Ireland

Following the restoration of the powersharing executive in Northern Ireland, David Allen Green explores the legal position relating to a referendum in Northern Ireland on Irish unification, first in an article in Prospect: When should the UK government hold a border poll in Northern Ireland? Second, on his Law and Policy Blog: A close look at the law and policy of holding a Northern Ireland border poll — and how the law may shape what will be an essentially political decision.

See also: Institute for Government, Government deal with the DUP to restore power sharing in Northern Ireland

Guardian: What does return to power sharing mean for Northern Ireland?

Immigration: asylum — or sanctuary?

The Law & Religion UK blog has a post on the Archbishop of Canterbury’s response to accusations that it is allowing its eagerness or at least willingness to accept converts from Islam into the Church of England to be exploited to game the immigration system and in some cases seek to prevent deportation following conviction for serious crimes. For this and other ecclesiastical law matters, see Law and religion roundup — 11th February.

Fraud: COVID-19 schemes

As well as looking at legal aid (see above), the National Audit Office has reviewed government spending and its susceptibility to fraud, during the Covid pandemic. Its recent report, Tackling fraud and protecting propriety in government spending during an emergency, notes how:

“Since the start of the COVID-19 pandemic, the government has recorded a higher level of fraud in the accounts we audit. The amount of fraud reported in the accounts the NAO audited rose from £5.5 billion in the two years before the pandemic to £21.0 billion in the two years after. £7.3 billion of the £21 billion related to temporary COVID-19 schemes, most of the rest relates to benefit fraud.

This report identifies insights and lessons learned for government departments.

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

CHARITY — Charity proceedings — Supervision of charity: Jaffer v Jaffer, 31 Jan 2024 [2024] EWHC 135 (Ch); [2024] WLR(D) 54, Ch D

CHILDREN — Care proceedings — Clarification of reasons: In re YM (A Child), 08 Feb 2024 [2024] EWCA Civ 71; [2024] WLR(D) 61, CA

CRIME — Sentence — Serious crime prevention order: Juul v Chief Constable of Dyfed Powys Police, 07 Feb 2024 [2024] EWHC 193 (Admin); [2024] WLR(D) 51, KBD

FAIR TRADING — Consumer credit — Agreement: Santander Consumer (UK) plc v Chaudhry, 31 Jan 2024 [2024] EWHC 170 (KB); [2024] WLR(D) 48, KBD

IMMIGRATION — Deportation — Conducive to public good: Yalcin v Secretary of State for the Home Department, 06 Feb 2024 [2024] EWCA Civ 74; [2024] WLR(D) 49, CA

MARRIAGE — Divorce — Financial provision: Potanin v Potanina, 31 Jan 2024 [2024] UKSC 3; [2024] 2 WLR 540, SC(E)

JUDICIAL REVIEW — Practice — Disclosure: R (IAB) v Secretary of State for the Home Department, 02 Feb 2024 [2024] EWCA Civ 66; [2024] WLR(D) 43, CA

SOLICITOR — Duty — Breach: Miller v Irwin Mitchell LLP, 01 Feb 2024 [2024] EWCA Civ 53; [2024] WLR(D) 55, CA

TRIBUNAL — Upper Tribunal — Jurisdiction: RI v Disclosure and Barring Service, 09 Feb 2024 [2024] EWCA Civ 95; [2024] WLR(D) 57, CA

TRUST OF LAND — Sale — Court’s powers: Savage v Savage, 01 Feb 2024 [2024] EWCA Civ 49; [2024] WLR(D) 60, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

UK Human Rights Blog: Let’s talk about sex: case note on For Women Scotland Ltd v Scottish Ministers [2023] CSIH 37, Ct of Sess

Local Government Lawyer: Supreme Court refuses permission to appeal rejection of vicarious liability claim against school over abuse by work placement individual: MXX v A Secondary School [2023] EWCA Civ 996, CA

UK Human Rights Blog: The mirror crack’d from side to side: Dalton’s application for judicial review: In re Dalton [2023] UKSC 36; [2023] 3 WLR 671, SC(NI)

Law & Religion UK: “Gender-critical” views as a protected belief — again: Meade v Westminster City Council, Judgment PDF, ET

Out-Law: Trade mark ruling ‘first’ showing UK divergence from EU law post-Brexit: Industrial Cleaning Equipment (Southampton) Ltd v Intelligent Cleaning Equipment Holdings Co Ltd [2023] EWCA Civ 1451; [2023] WLR(D) 511, CA

Inforrm’s Blog: Trump v Orbis, Former President Trumped in High Court: Trump v Orbis Business Intelligence Ltd [2024] EWHC 173 (KB), KBD

Law & Religion UK: Anti-Zionism as a protected belief: Miller v University of Bristol, [2024] ET 1400780/2022; Press summary, ET

Local Government Lawyer: Supreme Court to hear appeal in challenge concerning standing orders and committee voting: R (Spitalfields Historic Building Trust) v Tower Hamlets London Borough Council [2023] EWCA Civ 917; [2024] PTSR 40; [2023] WLR(D) 362, CA

Law Society Gazette: Court discretion and dispute resolution clauses: Lancashire Schools SPC Phase 2 Ltd v Lendlease Construction (Europe) Ltd & Ors [2024] EWHC 37 (TCC), KBD

Mental Capacity Law and Policy: Don’t ignore the Serious Medical Treatment Guidance — but let’s be clear about what the law requires: GUP v EUP & Anor [2024] EWCOP 3, Ct of Protection

Financial Remedies Journal: Wife v Husband [2023] EWFC 273 (B), Fam Ct

Local Government Lawyer: Redacting names of junior civil servants in disclosed documents does not fulfil duty of candour, Court of Appeal finds: R (IAB) v Secretary of State for the Home Department [2024] EWCA Civ 66; [2024] WLR(D) 43, CA

Local Government Lawyer: Tenants win High Court appeal against housing association over possession order: Nightingale v Bromford Housing Association Ltd [2024] EWHC 136 (KB), KBD

Transparency Project: Maintenance for a disabled adult child: a case of legal blogging: AB v CD [2023] EWFC 103, Fam Ct

And finally…

Tweet of the week

celebrates the benefit of tabloid anti-wokery to an institution dogged by political controversy:

Celia Richardson is the NT’s comms director, so she should know.

That’s it for this week. Thanks for buying my book (new edition just out), and thanks for all your tweets, toots, posts and threads.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.