Weekly Notes: legal news from ICLR, 15 May 2023
This week’s roundup of legal news includes public order policing, retained EU law, the Post Office IT scandal, open justice, AI regulation and more. Plus recent case law and commentary.
Corrie not sorry
The King was in his counting house, counting out his money (of which he has no shortage)
The Queen was in the parlour, eating bread and honey (or more probably lighting up a gasper)
The Knave was in the local nick, and that was not so funny… (because they were actually just a peaceful protester, or a charity worker handing out rape alarms, or the loyalest royalist hoping to watch the parade …)
Yes, this is the overzealous public order policing of the recent coronation, about which there has been a good deal of complaint. The coronation itself went off without a hitch. The Lord President of the Council, Penny Mordaunt MP, handled her role (holding up a decorative sword) with considerable aplomb, as did Zadok the Priest with aural awe. But outside, the crowds awaiting the procession to the palace were joined by a number of protesters. Some of these were from a campaign group called Republic, whose CEO Graham Smith and several other members were arrested and detained by police. There was also a very loyal fan of the monarchy, Alice Chambers, who had attended a number of other royal events, but who on this occasion was handcuffed and detained by police for 13 hours along with some Just Stop Oil protesters she happened to be near to on the Mall. In another incident, women’s safety volunteers working with Westminster City Council were arrested hours before the Coronation because the police thought the rape alarms they planned to distribute might be used to commit a public nuisance. In total, 64 people were arrested in London during the Coronation policing operation. Four have since been charged.
The Prime Minister Rishi Sunak and other loyal ministers publicly backed the force’s handling of the event, which relied in part on draconian new powers conferred by the recently enacted Public Order Act 2023. But the police themselves have since expressed regret over the arrest of the head of anti-monarchy group Republic and five other protesters on the morning of the ceremony, since it transpired they had previously co-ordinated their legal protest with the force in advance. (It seems the force themselves were not properly coordinated.) As for poor Ms Chambers — who spent the coronation locked in a police van, all her explanations and entreaties stoutly ignored — the police in their statement regretted that she had missed all the fun but rather disloyally attributed the mixup to an officer on mutual aid from Lincolnshire Police, to whom the investigation parcel was then passed.
Given the scale of the event and the scope of what could have gone wrong, the bungling of a handful of arrests does not seem especially egregious. Police arrest people for the wrong reasons far more often in other parts of London, and they also provoke outrage by failing to deal with far more disruptive protesters. However, the all too ready use of the vaguely drafted but draconian public order powers conferred by the new Act, given their chilling effect on freedoms of speech and assembly, is worrying.
Moreover, these coronation cockups may yet have the unintended effect of boosting republicanism, which for all the talk of “Not My King” has hitherto been at a relatively harmless level. The Financial Times reports that “Support for the British monarchy is at a 30-year low” and citizen Smith himself said:
“There is a whole new side to the campaign now that we have had this injustice meted on us. We are not just this group of people campaigning on a niche issue. We are central to much wider debates about the constitution and our rights.”
- FT: Coronation day arrests transform the profile of UK republicans
- i-paper: Royal superfan arrested and locked up for 13 hours at coronation for standing near protesters
- BBC: Met expresses ‘regret’ over arresting six anti-monarchy protesters
The government has finally dropped its ambitious plan to repeal any EU-derived subordinate legislation and all retained direct EU legislation by the end of this year, except for any provisions individually identified for preservation (re-adoption as UK law) by statutory instrument. There are at least 4,800 such laws, covering 400 unique policy areas, and the idea of subjecting them to a peremptory bonfire of destruction has been widely criticised by various legal and other brains who think they know a bit more about how legislation works (or doesn’t) than some of the ideological spambots who were elected to debate, scrutinise and enact it.
The Retained EU Law (Revocation and Reform) Bill which had been designed to make a post-Brexit “clean sweep” of such legislation was proposed by Jacob Rees-Mogg MP as the then Minister of State for Brexit Opportunities and Government Efficiency, appointed under the premiership of Boris Johnson MP. That ministerial post was abolished last September when Rishi Sunak MP took over as Prime Minister from Johnson’s short-term replacement, Liz Truss MP, and the Bill is now being steered through Parliament by Kemi Badenoch MP, Secretary of State for Business and Trade. On 10 May she presented a written statement to Parliament explaining how the true complexity of the task was beginning to become apparent, and how they proposed to resolve it:
“Over the past year Whitehall Departments have been working hard to identify retained EU law to preserve, reform or revoke. However, with the growing volume of REUL being identified, and the risks of legal uncertainty posed by sunsetting instruments made under EU law, it has become clear that the programme was becoming more about reducing legal risk by preserving EU laws than prioritising meaningful reform. That is why today I am proposing a new approach: one that will ensure Ministers and officials can focus more on reforming REUL, and doing that faster.
Today the Government are tabling an amendment for Lords Report, which will replace the current sunset in the Bill with a list of the retained EU laws that we intend to revoke under the Bill at the end of 2023. This provides certainty for business by making it clear which regulations will be removed from our statue book, instead of highlighting only the REUL that would be saved.”
In other words, a massive climbdown. Or sunset of the sunsetters. But as Joshua Rozenberg points out, on A Lawyer Writes, in Minister gets REUL:
“Badenoch is right: this is what business leaders have been arguing for since Johnson’s government adopted a kamikaze approach to law-making. She — and Rishi Sunak — must now handle the political opprobrium that comes with putting certainty ahead of ideology.”
However, the fact that the government has abandoned this “reckless exercise in superficial politics” and become more realistic about the post-Brexit world is not necessarily a victory for Remainers, says David Allen Green, on the Law and Policy Blog: Why the dropping of the REUL sunset clause may be very bad news for Rejoiners
- Jill Rutter, Institute for Government: Government sees some sense at last on the Retained EU Law Bill
- Guardian: Tories’ revised plans to scrap EU laws are still reckless, say lawyers
Post Office IT scandal
Just when you thought Post Office Ltd (POL) could not get any worse in its handling of the Horizon IT scandal and its near-total failure to atone for and compensate the victims of the worst collective miscarriage of justice in British legal history, it comes up with something that only confirms its own greed, corruption, arrogance and institutional mendacity.
According to a statement by the Chair of the Inquiry into the scandal, Sir Wyn Williams, the Inquiry solicitor had noticed something odd in POL’s annual report for 2021–22, filed at Companies House in February this year. It appeared that POL was awarding its executives fat bonuses for successfully achieving by way of a target its own compliance with the Inquiry. In confirming that achievement, it declared in its publicly filed report that
“All required evidence and information supplied on time, with confirmation from Sir Wyn Williams and team that Post Office’s performance supported and enabled the Inquiry to finish in line with expectations”
In fact, Sir Wyn had supplied no such confirmation, nor would he have done even if asked since the inquiry was still going, so the declared meeting of such a performance target was baseless. To be absolutely clear, he says:
“neither myself, nor any member of my team, agreed to participate in any way in the confirmation (or otherwise) that POL’s performance in the Inquiry was such that it ought to lead to bonuses being paid to POL executives.”
As Nick Wallis puts it in a post on his Post Office Scandal blog,
“Did no one at the Post Office think it might be a bit crass to award themselves bonuses for belatedly coming clean about its role in literally taking money with menaces from innocent people? Especially as, behind closed doors, it has apparently been trying to argue those innocent Subpostmasters should walk away with as little compensation as possible, and taken so long making those arguments, 59 people have died waiting.”
For their part, POL issued a mealy-mouthed apology indicating that, having been found out, they would be reconsidering the payment of bonuses based on the bogus “sub-metric”. Or to put it in corporate speak:
“Post Office apologises unreservedly to Sir Wyn and the Inquiry team for this mistake and the way it was stated in the Annual Report for 2021–22. Chief Executive, Nick Read, has chosen to return the remuneration associated with this sub-metric. The Board of the Post Office is considering the position in respect of other senior leadership beneficiaries of this remuneration sub-metric.”
Believe a child or the adults? A question for Cardiff Family Court
Attending as a legal blogger, Julie Doughty on the Transparency Project blog describes a case heard in Cardiff under the current family court reporting pilot which has been running since the end of January. (As we reported last week, the pilot has now been expanded in scope and is currently being evaluated.) Doughty describes both the process of reporting a case as a legal blogger (or “duly authorised lawyer” in the language of FPR 27.11(ff)) and the issues in the case itself.
Words Matter: The Role of Language in Dispute Resolution
How we frame conflict can influence how we approach its resolution. The world of litigation is full of angry, combative words that reinforce the perception of conflict resolution as a battle. In a recent post on SLAW, Ian Mackenzie discusses the recent report by the Family Solutions Group (FSG) on language in the family law context, entitled “Language Matters: a review of language for separating families”.
The FSG stated that “we need language which is collaborative rather than combative, which is constructive rather than destructive, which points families forwards to positive futures rather than points backwards to damaging recriminations”.
A pro-innovation approach to AI regulation
The Government recently published a White Paper, “A pro-innovation approach to AI regulation,” setting out its proposals for AI regulation, in conjunction with an impact assessment and consultation paper. Jo Frears, IP & Technology Leader at Lionshead Law, considers some of the key points in a recent article for the Internet Newsletter for Lawyers.
The “Unicorn Kingdom’s” AI White Paper
In a post on RPC Perspectives, Helen Armstrong, Ricky Cella, and Joshy Thomas of Reynolds Porter Chamberlain discuss the government’s pro-innovation AI White paper in the context of an open letter from the Future of Life Institute which called for a six-month halt in work on AI systems more powerful than the generative AI system: GPT-4.
There’s been no shortage of evidence about the potential problems of AI, as other recent publications show.
Humans and algorithms work together — so study them together
Adaptive algorithms have been linked to terrorist attacks and beneficial social movements, and are soon to be the subject of a case in the US Supreme Court. Governing them requires new science on collective human–algorithm behaviour, says J. Nathan Matias, associate professor of Cornell and fellow of Stanford, in Nature.
“The [Supreme Court] case centres on Nohemi Gonzalez, a US student who in 2015 was shot and killed by the Islamist terrorist group ISIS in Paris. Her father claims in the suit that Google, which owns the video platform YouTube, should be held responsible for permitting the platform’s recommender algorithms to promote content that radicalized the terrorists who killed Gonzalez.”
I unintentionally created a biased AI algorithm 25 years ago — tech companies are still making the same mistake
So says Prof John MacCormick of in The Conversation, who points out that the dangers of bias and errors in AI algorithms are now well known. Yet recent blunders by tech companies include initial versions of ChatGPT producing racist output, and the DALL-E 2 and Stable Diffusion image generators both showing racial bias in the pictures they created.
“My own epiphany as a white male computer scientist occurred while teaching a computer science class in 2021,” he recalls, explaining how in a rush to complete a head movement detection project he used only the facial colour data available from colleagues in the building at the time, rendering the result racially biased.
Artificial intelligence and being a lawyer (or, will “Chat GPT says otherwise” become a ground of appeal?)
In a post on Inforrm’s blog, Zoe McCallum, a barrister at Matrix chambers, provides a short update on artificial intelligence as it relates to lawyers right now. Given the pace of development, she says, lawyers should start thinking about:
- How we can use AI tools in our practices (e.g. some programs can be run over the top of chat GPT to analyse an e-bundle and find the salient facts/points — but there are potential confidentiality, copyright etc implications)
- What litigation AI is going to generate in the next 1–5 years; and
- The ethical, political, social ramifications of the change that is coming.
Other recent items
Time for a ‘Know Your Donor’ policy
Donations to political parties are essential to the functioning of our political process under the current system, but after a series of scandals and warnings from independent review bodies and the security services, it is clear that the UK’s electoral finance rules are not sufficiently robust.
To protect the UK’s democracy from those who wish it harm, Spotlight on Corruption has developed a draft ‘Know Your Donor’ policy for political parties. It provides a proportionate and risk-based framework for handling donations, with enhanced checks on higher-risk donations.
Open Justice: call for evidence
The Ministry of Justice says the government is committed to upholding open justice and continues to implement new services and changes which strengthen the scrutiny and transparency of the justice system. But the way justice is delivered has changed, especially with digitisation and the increased use of remote hearings, and the old assumptions about open public galleries (or the press being the “eyes and ears of the public”) are no longer sufficient.
Now they are launching a call for evidence to gain the views of the public and interested groups on “how we can support and strengthen the openness of our court and tribunal services”.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
ADMINISTRATION OF ESTATES — Presumption of death — Declaration: In re Fisher, 28 Apr 2023  EWHC 979 (Ch);  WLR(D) 206, Ch D
AIRCRAFT — Carriage by air — Compensation and assistance to passengers: TAP Portugal v flightright GmbH (TAP Portugal v Myflyright GmbH), 11 May 2023 (Joined Cases C-156/22 to C-158/22); EU:C:2023:393;  WLR(D) 217, ECJ
CHILDREN — Care proceedings — Fact finding hearing: In re J (Children), 28 Apr 2023  EWCA Civ 465;  WLR(D) 201, CA
CONTEMPT OF COURT — Committal application — Family proceedings: EBK v DLO, 05 May 2023  EWHC 1074 (Fam);  WLR(D) 218, Fam D
DENTIST — Discipline — Registration: Williams v General Dental Council, 05 May 2023  EWCA Civ 481;  WLR(D) 210, CA
HOUSING — Housing allocation policy — Local authority’s allocation criteria: R (Jaberi) v Westminster City Council, 04 May 2023  EWHC 1045 (Admin);  WLR(D) 213, KBD
IMMIGRATION — Compensation scheme — Construction: R (Kaur) v Adjudicator’s Office, 05 May 2023  EWHC 1052 (Admin);  WLR(D) 211, KBD
LOCAL GOVERNMENT — Ombudsman — Powers: R (Piffs Elm Ltd) v Commission for Local Administration in England (R (Tewkesbury Borough Council) v Commission for Local Administration in England), 10 May 2023  EWCA Civ 486;  WLR(D) 212, CA
PRACTICE — Pleadings — Amendment: CNM Estates (Tolworth Tower) Ltd v Carvill-Biggs (Practice Note), 05 May 2023  EWCA Civ 480;  WLR(D) 214, CA
TORT — Cause of action — Conversion: Dalston Projects Ltd v Secretary of State for Transport, 10 May 2023  EWHC 1106 (Admin);  WLR(D) 215, KBD
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Law & Religion UK: Coffin sliding — urban myths vs the lawIn re Chevington Cemetery ECC New 3, Const Ct
RPC Perspectives: Singapore Court of Appeal Sends Acceleration of Interest Payment Clause To The Penalty Box: Ethoz Capital Ltd v Im8ex Pte Ltd  SGCA 3, CA (Singapore)
UK Supreme Court Blog: New Judgment: Morgan v Ministry of Justice (Northern Ireland)  UKSC 14, SC(NI)
RPC Perspectives: Discovery assessment issued during enquiry period was invalid: Norton v Revenue and Customs Comrs  UKUT 48 (TCC);  STC 526, UT (TCC)
Law & Religion UK: Vicarious liability: Trustees of the Barry Congregation in the Supreme Court: BXB v Watch Tower and Bible Tract Society of Pennsylvania  UKSC 15, SC(E)
Nearly Legal: Local authority serving notices — requirements: Birmingham City Council v Bravington  EWCA Civ 308;  WLR(D) 148, CA
Nearly Legal: Suitability review — excluding information, and ending existing accommodation: Querino v Cambridge City Council (unreported), County Ct
RPC Perspectives: Voice of Rugby’ wins IR35 tax appeal: S & L Barnes Ltd v Revenue & Customs Comrs  UKFTT 42 (TC), FTT (TC)
Law & Religion UK: Russia and the Jehovah’s Witnesses again: Nabokikh & Ors v Russia (Application no. 19428/11);  ECHR 97, ECtHR
Law & Religion UK: The Missionary’s Position in the 2020s: Ossewaarde v Russia (Application no. 27227/17);  ECHR 225 , ECtHR
RPC Perspectives: Documents subject to legal advice privilege were not disclosable to HMRC: Refinitiv UK Holdings Limited & Anor. v The Commissioners for HMRC  UKFTT 222 (TC), FTT
RPC Perspectives: Beware unexploded bombs, proximate causes and …. the unintended consequences of adding clarity: Allianz Insurance PLC v University of Exeter  EWHC 630 (TCC), KBD
Local Government Lawyer: Council defeats High Court challenge to enforcement notice: R (Devonhurst Investments Ltd) v Luton Borough Council  EWHC 978 (Admin), KBD
Local Government Lawyer: High Court dismisses legal challenge over government failure to implement Care Act system for appeals against care and support decisions: R (HL) v Secretary of State for Health and Social Care  EWHC 866 (Admin), KBD
UK Human Rights Blog: Protection of the public and the retrospective application of penalties: Morgan v Ministry of Justice  UKSC 14;  2 WLR 905, SC(NI)
Legal Futures: Party using freezing order as “means of oppression”, High Court says: WWRT Ltd v Tyschenko  EWHC 907 (Ch), Ch D
Tweet of the week
is a reminder from David Durose KC that controversial archbishops of Canterbury are nothing new:
That’s it for now. Thanks for reading, and thanks for all your toots, tweets, posts and links. Work hard, be kind, take care.
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.