Weekly Notes: legal news from ICLR, 14 June 2021

This first weekly roundup of legal news for the Trinity Term includes an international get-together on the beach, a pledge to build back better in the courts, concerns over the collection of health data, media regulation, plus recent case summaries and commentary.

Politics

G7: a long weekend in Cornwall

The leaders of the Group of Seven wealthy democracies met in Carbis Bay, near St Ives in Cornwall. It was the first major international trip by the current President of the United States, after 120 days in office, but the change of mood since taking over from his predecessor has been widely remarked upon. “America is back”, said Joe Biden, underscoring his administration’s more positive global attitude.

The topics for discussion included the coronavirus pandemic, with G7 leaders collectively promising to supply over one billion vaccine doses for less wealthy nations; the need for stronger and swifter collective action to tackle climate change; and the perceived threats to human rights and political freedoms from the present regimes in both Russia and China. But Brexit and worsening tensions over the operation of the Northern Ireland Protocol to the EU Withdrawal Agreement provided an unwelcome distraction, particularly for the host government. Despite this the Prime Minister Boris Johnson seems to have relished playing host alongside his new wife Carrie (nee Symonds) and his guests also appeared to enjoy themselves in the seaside sunshine, with entertainments including watching the Red Arrows flying display and listening to a performance of traditional sea shanties. No doubt everyone was thoroughly relieved not to be stuck indoors doing it all on Zoom.

A week earlier there had been an historic agreement by G7 finance ministers to tackle tax abuses by multinationals and online technology companies. See The Guardian, G7 tax reform: what has been agreed and which companies will it affect?

After the elbow-bumps and meetings and barbecue suppers and posings on the beach for photographs, the G7 leaders agreed to a communique expressing “Our Shared Agenda for Global Action to Build Back Better”. This pledged global action to

• End the pandemic and prepare for the future by driving an intensified international effort … to vaccinate the world … as fast as possible.
• Reinvigorate our economies by advancing recovery plans that build on the $12 trillion of support we have put in place during the pandemic.
• Secure our future prosperity by championing freer, fairer trade within a reformed trading system, a more resilient global economy, and a fairer global tax system that reverses the race to the bottom.
• Protect our planet by supporting a green revolution that creates jobs, cuts emissions and seeks to limit the rise in global temperatures to 1.5 degrees.
• Strengthen our partnerships with others around the world.
• Embrace our values as an enduring foundation for success in an ever changing world.

The G7 nations are Canada, France, Germany, Italy, Japan, the UK and the United States. For a while it was known as the Group of Eight (G8) but Russia, which had joined in 1998, was kicked out again in 2014 following its annexation of Crimea. Although the G7 leaders occupy the top table, as it were, other leaders are regularly invited, such as the President of the European Commission. This year Boris Johnson also invited leaders from India, South Korea, South Africa and Australia. For more information, see Wikipedia, 47th G7 summit

Coronavirus regulations: lockdown reloaded

The mood music changed somewhat abruptly for the Prime Minister the next day when, on Monday 14 June, he was obliged by the science data to put on his long serious face and announce the postponement of the final stage of relaxation of lockdown restrictions, that was to have occurred on 21 June, by another four weeks. While opposition leaders may be supportive when this decision is discussed in Parliament, it seems a large number of backbench Tories may not be. The delay in restricting travel from India following discovery of what is now called the Delta Variant is generally blamed for the alarming rise in new cases which has prompted this setback notwithstanding the progress in vaccinations.

As to parliamentary scrutiny of the lockdown laws more generally, the HL Select Committee on the Constitution published a highly critical report, COVID-19 and the use and scrutiny of emergency powers (HL Paper 15) on 10 June saying

“The Government has introduced a large volume of new legislation, much of it transforming everyday life and introducing unprecedented restrictions on ordinary activities. Yet parliamentary oversight of these significant policy decisions has been extremely limited. … Although there were circumstances where the urgency of the situation required the use of urgent procedures, their use was not always justified, and this must not become the norm.”

The committee recommended that

“a review of the use of emergency powers by the Government, and the scrutiny of those powers by Parliament, should be completed in time to inform the public inquiry and planning for any future emergencies. The approach adopted in response to the pandemic must not be used to justify weakened parliamentary scrutiny of Government action in response to any future emergencies.”

Courts

Lord Chancellor’s vision

The Lord Chancellor and Secretary of State for Justice, Robert Buckland QC MP, gave a speech at the Law Society on 4 June 2021 to thank the “hidden heroes” who kept justice moving during the “Herculean effort” of coping with the COVID-19 pandemic, and outlined his plans for enabling the system to recover and improve.

While safety was a “primary concern”, he said he had taken “the early decision to do everything in our power to keep justice moving throughout the pandemic”. This meant that, throughout the lockdown, hearings of many different types continued to take place and justice in its myriad forms continued to be done. The government had “made available a quarter of a billion pounds not only to keep the wheels of justice turning, but to propel them forward at a pace that would help tackle the number of outstanding cases, particularly in the criminal courts”.

The money was spent on people, equipment and buildings, as well as “the fastest and most ambitious roll out of technology that Her Majesty’s Courts and Tribunals Service has ever seen” (although, as we have repeatedly pointed out on this blog, this was already supposed to have been going on since 2016 under the massive £1bn+ HMCTS Reform court modernisation project). In practice, what this meant was a massive and somewhat panicky push toward remote justice:

“Just as many workplaces took their meetings online, we made sure 3,200 hearing rooms became ‘virtual’ — so that we could facilitate more remote hearings and keep people safe. In fact, a record number — up to 20,000 hearings — have been heard using audio and video technology each week. And that was from a standing start when the pandemic began.”

One might also point out that hearings could not take place in physical courts because many of them no longer existed, having been sold off as part of the modernisation, thereby necessitating the requisitioning of numerous Nightingale courts instead. Despite this, the Lord Chancellor assured us that “The action we took then means cases are being dealt with now at around pre-pandemic levels almost across the board in the courts and tribunals estate.” Of course, “pre-pandemic levels” doesn’t actually mean full capacity: that was one of the reasons why the system was already severely challenged even before Covid-19 hit the fan.

Buckland was kind enough to add legal professionals to the “hidden heroes” deserving of praise, and say “I am deeply proud to champion the legal sector around the Cabinet table”. In this he is certainly setting himself apart from some of his recent predecessors. He also signalled his determination to speed up the criminal justice process, where lack of resources has for years added to delays and discouraged victims and witnesses. “The Lord Chief Justice and I recently committed, for the next year at least, that our crown courts will be authorised to work at full throttle, to their maximum capacity.”

Remote hearing data

A clearer picture on how courts have continued to operate during the pandemic has now emerged in newly published statistics from HM Courts and Tribunals Service on the weekly use of remote audio and video technologies since April 2021. The publication of these figures is a welcome development, albeit one that is long overdue.

What the figures show is perhaps not surprising: that in the early part of the pandemic, one the first lockdown was imposed in March 2020, physical hearings in the courts all but dried up, with the vast majority of such hearings (far fewer than normally) being conducted by audio or video means, or else on the papers. As the state of emergency continued, while lockdowns eased or tightened, the number of hearings steadily increased, though the imposition of the third lockdown at the turn of the year reduced the volume of business.

For a more detailed analysis of these statistics, and in particular a comparison of the numbers for family court hearings with those in crime, civil courts and tribunals, see my post on the Transparency Project blog, Day to day data on remote hearings in the family courts.

Impact of Covid on tribunals

The Legal Education Foundation (LEF) published a report entitled Understanding the impact of COVID-19 on tribunal hearings: the experience of tribunal judges. The report was commissioned by the then Senior President of Tribunals, Sir Ernest Ryder, who asked the LEF to undertake a survey of all tribunal judicial office holders who had sat on remote hearings in the tribunals between 19 March 2020 and 31 July 2020. The survey ran for five weeks and more than 1500 tribunal judicial office holders responded. The report published on 2 June 2021 provides an analysis of these responses.

Sir Ernest’s successor as SPT, Sir Keith Lindblom, said

“The speedy adoption of new technology and new practices to facilitate this has not been without its challenges. The report touches on some of the difficulties experienced by judicial office holders in the infancy of remote hearings, and the need to be conscious of the ‘digital poverty’ that may prevent access to a remote hearing. Though telephone and video hearings have helped us maintain access to justice in this extremely testing time, we must acknowledge that for many people and in many cases they are not going to provide the best form of hearing we can offer.”

The foundation’s research director, Dr Natalie Byrom said

“This research adds to a growing body of evidence which helps us to understand how remote hearings can be used, and where their adoption risks undermining access to justice.”

Data Protection

NHS data

A plan to set up a new system to collect health data from GP practices has been delayed for two months in response to widespread concerns over privacy and lack of consultation. The plan will now begin on 1 September instead of 1 July 2021, to allow time for patients to learn more about the plan and give them a chance to opt out.

NHS Digital has already been collecting data from GPs to meet bespoke data requests for these purposes for over ten years, through its trusted General Practice Extraction Service (GPES). This system is now being replaced with their new General Practice Data for Planning and Research (GPDPR) service, a broader general-purpose collection which will enable faster access to pseudonymised patient data for planners and researchers. The new data collection method is said to reduce the burden on GP practices, allowing doctors and other staff to focus on patient care.

NHS Digital says they have engaged with the British Medical Association (BMA), Royal College of GPs (RCGP) and the National Data Guardian (NDG) to ensure relevant safeguards are in place for patients and GP practices. But, according to the human rights blog Each Other,

“While the benefits of collecting the data for research purposes have been widely acknowledged, critics are concerned that the public will not be able to make a decision about their data privacy with informed consent. The Royal College of General Practitioners and the British Medical Association released a joint letter expressing their concerns. They said, ‘It is unreasonable and inappropriate for it to be left to GP practices to communicate with patients at a time of extreme workload pressures and focus on the COVID-19 vaccination programme.’”

The article cites Dr Paul Bernal, associate professor in information technology, intellectual property and media law at the University of East Anglia Law School, saying “We should be wary of them doing this in the middle of the pandemic,” the implication being that the government is taking advantage of the public’s greater willingness to accept restrictions on data protection and personal liberty in view of the health emergency.

Although the data will be anonymised, or pseudonymised, to enable its use for general health planning and research, there are known risks of such supposedly protected data nevertheless being mined for personal information and individuals nevertheless being identified. The database will include sensitive data, including information on criminal records, mental and sexual health, and abuse. While many agree that linking up health data could have huge benefits, there are concerns that the plans are ‘legally problematic’ — with patients only having a few weeks to opt out of their data being used, and it is still unclear who exactly the data will be shared with. “There are a large number of organisations who can request access to the data”, say Each Other, but “As there is no exhaustive list of who can request access, some are concerned that the data could be sold off to any number of companies.”

As the Open Data Institute has pointed out, the Covid-19 pandemic has pulled focus on the indispensable role of data in our society. The development of the draft National Data Strategy in the UK and the government’s response to its consultation, which was published last month (18 May 2021) further underlines its importance.

To find out more about the benefits and risks of sharing health data check the ODI are broadcasting a lunchtime lecture on 25 June, Creating a better user experience for patients.

If a patient does not want identifiable data to be shared outside their GP Practice except for their own care they can opt-out at any time, by requesting that their GP practice record this preference, known as a Type 1 opt out, or by registering their opt-out through the National Data Opt Out service on nhs.uk, or both.

See also: Polly Toynbee, in The Guardian, Why I back the NHS patient data-sharing plan. “The benefits could be immense — just look at the Covid vaccine. But this proposal needs cast-iron assurances”

Media regulation

Ofcom and Impress: what next?

Paul Dacre, editor-in-chief of DMG Media, once said “I still have to pinch myself that we live in a country in which the government’s press regulator is financed by Max Mosley…” Well, he may not have to pinch himself for much longer. Mosley died at the end of May, and although he wasn’t personally financing IMPRESS, his family charity was. According to the Press Gazette,

“The son of fascist leader Oswald, he has funded state-approved press regulator Impress through his family charity since it was established in 2016. He first agreed to fund Impress through the Alexander Mosley Charitable Trust, which is named after his eldest son who died of a suspected heroin overdose in 2009, to the tune of £3.8m over four years. In 2018 he agreed to provide a further £3m to sustain the regulator until at least 2022.

Mosley had supported better press regulation since winning £60,000 in damages from the News of the World after it published photos and footage of him taking part in a sex orgy. Mr Justice Eady found there was no evidence to support the newspaper’s claim that it was Nazi-themed and that Mosley had a reasonable expectation of privacy in relation to his sexual activities. Mosley had also been involved in other litigation against the media, not always so successful. It remains to be seen for how long his family trust will continue to provide the bulk of IMPRESS’s funding. Following his demise, IMPRESS CEO Ed Procter said:

“Max Mosley played a vital role in supporting the Leveson Inquiry’s call for more accountable press regulation and improved access to justice for victims of press misconduct, and in putting his own resources behind efforts to ensure that these issues will not be forgotten.”

Dacre’s dismissive attitude towards IMPRESS may also have something to do with the fact that he was for many years (until 2016) chair of the Editors’ Code Committee of rival newspaper regulator, IPSO (the Independent Press Standards Organisation), which took over from the discredited Press Complaints Commission following the Leveson Inquiry report. Dacre now appears to be the government’s preferred candidate to become chair of Ofcom, the postal, communications and broadcast regulator, whose reach is to be extended to cover internet services and social media. However, the selection process for the role is to be “re-started” at the behest of Oliver Dowden, Secretary of State for Digital, Culture, Media and Sport, after Dacre mysteriously didn’t win the first time round. Julian Knight MP, who chairs the House of Commons select committee covering digital, culture, media and sport, is reported to have said he was “concerned about the lack of clarity on why the process to appoint a new chair of Ofcom needs to be re-run”. (See BBC, Ofcom chair selection process to be re-started)

ICLR News

How can artificial intelligence help us find new case law?

For the last year or so, ICLR has been working with our developers, 67 Bricks, in building a major upgrade to our online case law platform. Although artificial intelligence (AI) is a thoroughly over-hyped concept these days, there are some applications of its techniques that can prove useful, one such being natural language processing (NLP) which can “read” text in ways that traditional search algorithms cannot, and suggest similarities that might otherwise go unnoticed. That’s the point of what we’re building: to help find those “unknown unknowns” that bedevil legal research. Worth a try? Check it out.

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.3:

COMPANY — Securities — Prospectus: Bankia SA v Unión Mutua Asistencial de Seguros, 03 Jun 2021 (Case C-910/19); EU:C:2021:119; EU:C:2021:433; [2021] WLR(D) 323, ECJ

CORONER — Inquest — Verdict: R (Morahan) v West London Assistant Coroner, 11 Jun 2021 [2021] EWHC 1603 (Admin); [2021] WLR(D) 333, DC

COSTS — Detailed assessment — Conditional fee agreement: SGI Legal LLP v Karatysz, 11 Jun 2021 [2021] EWHC 1608 (QB); [2021] WLR(D) 334, QBD

DATA PROTECTION — Legal protection of databases — Right to prevent extraction or re-utilisation of contents: CV-Online Latvia SIA v Melons SIA, 03 Jun 2021 (Case C-762/19); EU:C:2021:22; EU:C:2021:434; [2021] WLR(D) 324, ECJ

DISCRIMINATION — Sex — Equal pay: K v Tesco Stores Ltd, 03 Jun 2021 (Case C-624/19); EU:C:2021:429; [2021] WLR(D) 316, ECJ

EMPLOYMENT — Unfair dismissal — Illegality: Robinson v His Highness Sheikh Khalid Bin Saqr Al Qasimi, 10 Jun 2021 [2021] EWCA Civ 862; [2021] WLR(D) 332, CA

IMMIGRATION — Asylum — Support: R (NB) v Secretary of State for the Home Department, 03 Jun 2021 [2021] EWHC 1489 (Admin); [2021] WLR(D) 320, QBD

PENSIONS — Pension scheme — Construction: Britvic plc v Britvic Pensions Ltd, 10 Jun 2021 [2021] EWCA Civ 867; [2021] WLR(D) 330, CA

PLANNING — Development — Certificate of lawful use: R (Ocado Retail Ltd) v Islington London Borough Council, 07 Jun 2021 [2021] EWHC 1509 (Admin); [2021] WLR(D) 331, QBD

PRACTICE — Case management — Shorter trials scheme: EMFC Loan Syndications LLP v Resort Group plc, 08 Jun 2021 [2021] EWCA Civ 844; [2021] WLR(D) 328, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.3 includes:

Old Square chambers: Forstater v CGD Europe & others UKEAT/0105/20/JOJ, 10 June 2021: Forstater v CGD Europe [2021] UKEAT 0105_20_1006; UKEAT/0105/20/JOJ

Free Movement: Home Office accidentally discriminates against trafficking victims with kids: R (MD) v Secretary of State for the Home Department [2021] EWHC 1370 (Admin); [2021] WLR(D) 300, QBD

NIPC Law: A Point of Interest — FBT Productions, LLC v Let Them Eat Vinyl Distribution Ltd: FBT Productions, LLC v Let Them Eat Vinyl Distribution Ltd [2021] EWHC 1316 (IPEC), Ch D

Inforrm’s blog: Case Law, Coker v Nwkanma, Search for vindication backfires, court finds serious sexual assault committed: Coker v Nwakanma [2021] EWHC 1011 (QB), QBD

Law & Religion UK: Ecclesiastical Court Judgments — May 2021: Bells: In re All Saints, Hawton [2021] ECC S&N 3, Const Ct (Ockelton Ch)

UK Human Rights Blog: Withdrawal of life sustaining treatment v profound religious beliefs in sanctity of life: Manchester University NHS Foundation Trust v Fixsler [2021] EWHC 1426 (Fam), Fam D

RPC Perspectives: A tale of loss, limitation and a flawed transaction: why a loss may not feel like a loss: Elliott v Hattens Solicitors [2021] EWCA Civ 720; [2021] WLR(D) 292, CA

Panopticon: The Grand Chamber, Bulk Interception and a Curate’s Egg: Big Brother Watch v United Kingdom (Applications nos. 58170/13, 62322/14 and 24960/15); [2021] ECHR 439, ECtHR GC

Nearly Legal: Banning Order? Simples: Camden London Borough Council v Simple Properties Management Ltd (2021) LON/00BA/HBA/2020/0011, FTT (PC)

Other recent publications

Shipping Casualties and Arbitration: Reflections on the “EVER GIVEN”

James Turner QC and Nichola Warrender QC of Quadrant Chambers on the Kluwer Arbitration blog discuss the contracts, claims and dispute resolution clauses likely to be affected by the grounding of the vessel Ever Given in the Suez Canal in March 2021, described by some as “shipping’s 15 minutes of fame”.

Ensuring access to justice for all is essential for a functioning democracy

Writing in Politics Home, Sir Bob Neill MP, chair of the Justice Select Committee, explains why “If the government is serious about levelling up, it must invest in key local services, of which the courts are an integral component.” Legal aid cuts have, he says, gone too far.

“An unacceptably transactional approach to justice made it difficult for some of the most vulnerable members of our society to secure legal advice and representation, and, ironically, the consequent rise in litigants in person also exacerbated the backlog in our courts (itself a barrier to justice), thereby generating more cost in the long run.”

We know what you did during lockdown.

An FT Film written by James Graham examines the ethical issues around the use of personal data gathering and the tension between the need for data to track and trace, and the right to privacy and justice. Quite scary and also moving.

Marshall spells it out: speech to University of Law

Paul Marshall QC, who together with Flora Page (instructed by Aria Grace Law) represented defendants Seema Misra, Tracy Felstead and Janet Skinner in the recent Post Office trial criminal appeals, and was threatened with proceedings for contempt of court, gave a speech to the University of Law on the legal, ethical, individual and corporate failures of the Post Office and its lawyers in the case. It raises the important question, among others, of how much relevant people at government level knew about what was going on. This is a case that continues to deliver new revelations and new shocks practically on a weekly basis, as reported by Nick Wallis on his indefatigable Post Office Trial blog.

Legal podcasts: a roundup

We took the opportunity of a break in publication of Weekly Notes during the law vacation to do a cheeky roundup of some recent new legal podcasts. Give them a listen.

And finally….

Tweet of the week

is from history blogger Undine on why hiring a Fat Cat lawyer may not be your best route to feline legal aid:

That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Take care now.

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.