Weekly Notes: legal news from ICLR, 18 November 2019

This week’s roundup of legal news and commentary focuses on the pre-manifesto promises of the main parties in the UK election, some updates on media law practice and the regulation of algorithms and AI. It’s been a thin week otherwise.

Endless recession? The 2019 election.

Election

The various political parties have yet to publish their manifestos, so all we have to go on at present are their headline spending promises and policy declarations. The two main parties have made big spending commitments, but the “small print” on which the press and media rarely challenge them indicates that these commitments are usually spread so far into the future – often well into the next parliament, if not the one after that – as to make little actual difference to the lives of the electorate.

While the Tories have made biggish spending commitments on the NHS, it’s been hard for them to escape the response that this is “politics as usual” and few people can seriously expect spending on the health service to transform its fortunes after a decade of austerity, managerial reorganisation, Brexit-inspired staff depletion and disincentivising pension reform.

Rather more eyecatching has been Labour’s promise of free broadband to all and sundry, after re-nationalising BT, the true purpose of which may be a lot more questionable than most people realise. With everyone’s data transactions and cloud storage passing through the hands of a nationalised comms giant, how can you be sure Big Brother isn’t watching you, or at any rate monetising your data? The cost of buying back all those shares in BT from pension funds, investment trusts and personal savers will run into billions.

Of course the real agenda might be to find an acceptable, even popular policy on which to begin the gradual but steady roll back of the share-owning democracy ushered in by the Thatcher government of the 1980s. On this basis, British Gas and other utilities companies would come next.

The problem with spending pledges is not just that they often depend on taking effect years, even decades into the future, but the sums of money involved are to most voters about as meaningful as toy banknotes in a board game. In a recent opinion piece in the Financial Times, Robert Shrimsley commented:

“And still the unnoticed spending pledges flow. Labour may even have hit the target with its free broadband pledge. But most sink without trace. The Tories did try to reprise their hardy election annual – the ‘Labour’s tax bombshell’ dossier. This offered the figure of £1.2 trillion, which is hopeless because normal people cannot grasp the difference between several million, several billion and a trillion. They just know that it’s a sod of a lot in old money.”

Old money, old policies, old ideology. We may even be seeing a bit of nostalgia for 70s-era superinflation, if it gives us what we want in terms of public spending and wage rises. Moreover, suggestions that a Labour government under Jeremy Corbyn might wreck the economy ring somewhat hollow after three years of a conservative-led Brexit having already done that. This may be why the more convincing arguments against voting Labour remain rooted in Corbyn’s personal unsuitability for the role of Prime Minister. His foreign policy inclinations remain deeply suspicious to many, but it’s his leadership of the party itself that has proved most divisive. A letter sent last week to the Guardian, signed by a number of prominent people led by spy novelist John Le Carre, focused on the toxic atmosphere of anti-semitism in the Labour party fostered under his leadership, which has been the stated cause of a number of MPs and others leaving the party.

The Conservative party has its own racism row to worry about, after Baroness Warsi took her fellow Tory MP Matt Hancock to task for “whitesplaining” away the issue of Islamophobia after he suggested “there are others who take a more balanced approach” to the issue. According to the Guardian,

“Warsi has been a vocal critic of the party’s approach on tackling cases of Islamophobia. On Friday, after Boris Johnson confirmed there would be no inquiry into Islamphobia before Christmas, she wrote on Twitter: ‘Yes disappointing. Yes predictable. Yes it’s true my party don’t give a — about racism within our own ranks. We are only anti-racist to score political points. Do as we say not as we do.’ ”

Meanwhile the Liberal Democrats have waxed very wroth about their leader Jo Swinson, along with Ian Blackford as the leader of the Scottish Nationalist Party, not being invited to appear in a televised debate between the two main leaders (Johnson and Corbyn) on ITV. Such a binary debate, it is said, ignores the remain option offered by the LibDems and the independence option offered by the SNP, depriving the population of any genuine appreciation of the choices offered in the election. However, a legal action to challenge ITV’s decision has failed.

In The Liberal Democrat & Scottish National Party -v- ITV Broadcasting Ltd (unreported, 18 November 2019) Lord Justice Davis and
Mr Justice Warby refused permission to proceed with the claim, on the grounds that

“(1) In the present context, ITV has not been exercising a public function, in the sense known to law, and accordingly is not amenable to judicial review; and (as a linked point) (2) Having regard to the statutory scheme, the remedy available to the Liberal Democrats and the SNP is by lodging a complaint with OFCOM, the specialist regulatory body designated by statute to deal with complaints of such a kind.”

But they also indicated, in relation to the substantive issues, that “these claims are not realistically arguable”.

So far only the Labour party appear to have come out with any spending commitments on law and justice. In an article in the Guardian, shadow Lord Chancellor Richard Burgon MP promised that Labour will restore legal aid so all citizens have access to justice — not just the rich.

However, the article itself appeared to suggest that he was mainly concerned with welfare benefit cases. Having explained the way the cuts in legal aid had impacted claimants, he said “That is why I am announcing today that the next Labour government will restore legal aid for making benefit appeals.”

That said, he went on to discuss other areas and commented:

The Labour-initiated Bach commission on access to justice outlined the direction in which the government needs to go. The Conservatives’ review [ into its legal aid reforms, due by Christmas] should follow its recommendation to boost funding for early legal advice.”

He added: “ Now is the time for the Tories to begin to undo the damage they have caused to legal aid.” So it’s not clear if he’s saying Labour would do that if they get into power, or that if the Conservatives should do it if they remain in power. (Which they obviously should.)

Meanwhile, as we await the arrival of the political parties’ manifestos, others are getting their demands in. The Law Society has issued its election manifesto, which (reports the Law Society Gazette)

“contains four principal demands to bolster the rule of law and access to justice, including an independent economic review of the long-term viability of the criminal legal aid system and reinstatement of legal aid for early advice from solicitors in housing and family law.”

Media law

Getting changes done to the Civil Procedure Rules seems to be an unbelievably sluggish process. Many months ago the Media and Communications Law User Group (MACLUG), a consultative body set up by Warby J when he became the first judge to head the Media and Communications List in the Queen’s Bench Division, recommended a number of changes to Practice Direction 40F and its accompanying form, dealing with the logging of non-disclosure orders affecting the media (ie privacy and confidentiality injunctions, or as the press like to characterise them, “gagging orders”).

The changes are designed to capture more information about the parties and the nature of the proceedings in which such orders have been made. The amendments were drafted by a sub-committee of MACLUG last year and submitted to the relevant rule committee, who apparently approved them in February this year. They required the enactment of a Statutory Instrument to effect a change to the CPR (itself a statutory instrument dating from 1998), which had to be drafted and put before a Parliament whose legislative time was already under considerable pressure. All that must have been done eventually, however, because The Civil Procedure (Amendment No 3) Rules 2019 (SI 2019/1118 (L. 8)) were laid before Parliament on 18 July and came into effect on 1 October 2019.

The effect of rule 4 is to replace the current CPR Part 53 (Defamation Claims) with a new Part 53 to provide for the additional claims to be dealt with under the Media and Communications List, such as misuse of private information and breach of duty under the Data Protection Act. The changes to PD40F are not set out in the SI itself, but in an update (the 109th Update) to the Practice Directions under the CPR, “made by the Master of the Rolls under the powers delegated to him by the Lord Chief Justice under Schedule 2, Part 1, paragraph 2(2) of the Constitutional Reform Act 2005, and are approved by Paul Maynard MP, Parliamentary Under Secretary of State for Justice, by the authority of the Lord Chancellor”.

The changes are not reflected in the current edition of the CPR published on the Justice.gov.uk site, so you need to check the various updates listed on the home page before or after consulting the full rules. It is unclear when or by what process the rules are updated on this website. The page containing PD40F was last updated on 30 January 2017. And the form annexed to it will also need to be updated to the amended version— for which there is currently no provision even in the 109th Update: instead, it says, dismayingly, “The following forms have been either created or modified as part of this update: None associated with this update.”

Technology

Lord Sales, Justice of the UK Supreme Court, gave what used to be known as the BAILII annual lecture this year, on the topic of Algorithms, Artificial Intelligence and the Law. The event was hosted in a packed auditorium at the offices of Freshfields Bruckhaus Deringer, just off Fleet Street, on Tuesday 12 November.

Lord Sales warned that the growing use of algorithms and artificial intelligence in decision making posed significant legal problems:

“ we need to build a structure of legal obligations on those who design and operate algorithmic and AI systems which requires them to have regard to and protect the interests of those who are subject to those systems. […]

Precisely because algorithmic systems are so important in the delivery of commercial and public services, they need to be designed by building in human values and protection for fundamental human interests. For example, they need to be checked for biases based on gender, sexuality, class, age, ability. This is being recognised.”

He recommended setting up a new agency for scrutiny of algorithmic code, as a public resource, like a regulator. It would be an “expert commission staffed by coding technicians, with lawyers and ethicists to assist them.” It would respect the confidentiality of commercially sensitive code under audit, but would publish reports to provide transparency in relation to the digital processes. It would review code before and after implementation, to assess compliance with human rights and regulatory standards. Moreover, “In view of the global nature of the digital world, there also has to be a drive for cooperation in setting international standards”.

Lord Sales went on to consider other areas in which law needed to grapple with new technology, such as blockchain, smart contracts and driverless vehicles. He did not offer solutions so much as raise awareness of the need for lawyers to engage with the issues, and not to allow a situation to develop in which, like the proverbial frog being slowly boiled, we suddenly found ourselves beyond the point of being able to do anything about it.

Commenting on the lecture, Rosalind English on the UK Human Rights Blog (AI — a tool for the law, or its digital master?) noted that

“Today the United Kingdom releases its statement on cryptocurrencies and smart contracts. The UK Jurisdiction Taskforce’s legal statement on the status of cryptoassets and smart contracts under English and Welsh law seeks to address legal uncertainty by recognising cryptoassets as tradable property and smart contracts as enforceable agreements under English law.”

She also draws attention (with links) to a series of podcasts she has done on the topic of AI and the Law.

Recent reads

In Dentures at Snaresbrook, Matthew Scott blogs about a series of strange encounters between barristers in the robing room at Snaresbrook Crown Court and an “unpleasant and vaguely sinister artefact”. These encounters emerge from tweets, describing the partial set of dentures left on top of a radiator in the robing room, whither barristers have retreated to eat their lunch, or to don or doff their wigs and gowns. Treating the abandoned dentures as a kind of memento mori, Scott muses upon life, death and other grave concerns.

Law on Television

You can still watch Defending the Guilty, the outrageous television adaptation of Alex McBride’s hopefully fictional account of the professional (and unprofessional) life of a set of pupils in a set of chambers. Highly approved by real barristers such as Dinah Rose QC:

Good news for fans of the more traditional televised legal drama of Rumpole of the Bailey. It is being re-broadcast via Talking Pictures TV, an independent archive film and television channel, every Wednesday evening at 9pm starting 20 November. First episode is called Rumpole and the Younger Generation. Hopefully it will also introduce Rumpole to a younger generation of viewers.

Dates and Deadlines

The Transparency Project is calling for lawyers to participate on a voluntary basis in the Legal Bloggers Pilot scheme. This is a scheme under which ‘duly authorised’ lawyers may attend and write about family court cases heard in private on the same terms as accredited journalists.

Legal blogging is a valuable service that can help make family justice clearer to the public in general and, in particular, to litigants facing the prospect of their own hearings, whether represented or acting in person.

Full details via the National Pro Bono Centre’s opportunities page.

Brick Court chambers : 6pm, 26 November 2019

Talk by HH Nicholas Chambers QC on the role of the judge in various types of conciliation, and why it should be an integral part of case handling (as it is in some jurisdictions). For more detail, see this guest post

Tweet of the Week

is Anna Higham’s rueful reflection on the overlap of work and family life:

That’s it for this week. Thanks for reading, and thanks for the tweets and blogs and links to content from which this post was derived.

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.

Featured image: Photo from Hong Kong by Joel Fulgencio on Unsplash

The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.