Weekly Notes: legal news from ICLR, 26 June 2023
This week’s roundup of legal news includes digital assets, legal technology, immigration, judicial afterlives, and entertainment. Plus recent case law and commentary.
The Law Commission has recommended the creation in English law of a distinct category of personal property to better recognise and protect the unique features of digital assets such as crypto-currencies, non fungible tokens (NFTs) and tokenised securities.
Electronic signatures, cryptography, distributed ledgers, smart contracts and associated technology have broadened the ways in which digital assets can be created, accessed, used and transferred. But because digital assets are not tangible and differ significantly from physical assets, and from rights-based assets like debts and financial securities, they do not fit within traditional categories of personal property (as being either things in possession or things in action). While the flexibility of common law can accommodate a new and distinct category of personal property, the Commission also recommends legislation to confirm the existence of this category and remove any uncertainty, as well as guidance from industry experts to support the law. This tripartite approach (common law, statute and guidance) should provide the necessary flexibility to allow the development of digital technology and assets to flourish.
Announcing the publication of Digital Assets: the final report (HC 1486), the Law Commission said its recommendations
“aim to create a clear and consistent framework for digital assets that will provide greater clarity and security to users and market participants. The recommendations also support the Government’s goal of attracting technological development to cement the position of England and Wales as a global hub for crypto-tokens and crypto-assets.”
The report follows a call for evidence launched in 2021 and a consultation paper in 2022 and benefits from the input of both market participants and experts in the area. The government will now consider the recommendations and decide whether to act on them.
For more on this, see Law Society Gazette, Digital assets: call for legislation to protect third category of ‘thing’
Regulation of AI
The Law Society has called for the government to adopt a “nuanced, balanced approach to the development and use of AI with the legal sector, to enable the profession to make the most of these technologies”. Launching the Law Society’s response to the the government policy paper: A pro innovation approach to AI regulation, the president Lubna Shuja said:
“clarity is needed on how any discrepancies across sectors and regulators will be mitigated. We also need guidance on how the legal profession can extend its services overseas and navigate the differing AI legislation across jurisdictions. Our recommendations aim to firmly establish those frameworks within the legal sector, bringing clarity for our members and placing their expertise and experiences at the forefront.”
The Law Society’s recommendations include:
- a balanced approach, including a blend of adaptable, principle-based regulation and firm legislation, which would establish a comprehensive safety net, safeguarding societal interests while not impeding technological progression.
- legislation focusing on and clearly defining what ‘high-risk contexts’ and ‘dangerous capabilities’ are. This would establish parameters where the use of AI is unacceptable or where it is inappropriate for AI to make zero-sum decisions
- expertise of the legal profession should be recognised and harnessed in the AI regulatory approach
- legal professional privilege must be protected in the future regulation of AI
- organisations of a certain size, operating in high-risk areas, or those developing an AI system with dangerous capabilities should appoint an AI Officer
- mandating transparency for the use of AI in government or public services and establishing a due diligence system to boost public trust.
In another response to the government’s plans for regulation of AI, Albert Sanchez-Graells on Inforrm’s blog suggests that: The UK wants to export its model of AI regulation, but it’s doubtful the world will want it
Attitudes to law tech
While the Law Commission and the Law Society have been considering how to accommodate and regulate new technology in the legal landscape, a recent survey finds most legal professionals seem ambivalent about its benefits. According to a report compiled by the Law Society with researchers from the University of Manchester and University College London,
“there is a considerable amount of uncertainty around adopting new tech ranging from basic software and databases to improve the efficiency of service delivery, to advanced chatbots and the latest advances in predictive artificial intelligence. For legal professionals to adopt these new ways of working, it may take a profound change in mindset to fully harness the complete potential of emerging lawtech.”
See Law Society Gazette, Profession ‘sitting on the fence’ with lawtech
They may be right to do so, given that the burden of having to check the accuracy of AI legal research is likely to fall on human actors (at least until AI is reliable enough to check its own accuracy) as Elijah Z Granet explains, in his paper The Challenge of Legal AI efficiency. The consequences of not checking AI research material can be catastrophic, he says, so why would you risk it? You could lose your case, your client, and your reputation.
A judge in the US has fined two lawyers and a law firm $5,000 (£3,935) after fake citations generated by ChatGPT were submitted in a court filing, according to The Guardian. The judge P Kevin Castel said in a written opinion there was nothing “inherently improper” about using artificial intelligence for assisting in legal work, but lawyers had to ensure their filings were accurate.
Suspicion of AI is apparently shared by judges in Canada, as another report in the Gazette reveals: Canadian judges demand to know if AI used in submissions. Commenting on this via Twitter, James M Turner KC wondered if that would apply to a case search using ICLR’s Case Genie brief analysis tool:
Likewise law librarians:
‘AI is fascinating’, says a recent post on the Middle Temple library blog, ‘but also about as trustworthy, at this point in time, as a cartoon window drawn onto a brick wall’: Do AI Dream of 636.3?
In this post, deputy librarian Harpreet Dhillon recounts a prompt and response session with Chat GPT in which the notorious AI incorrectly identifies a fictitious ‘David I Moys’ as being the primary developer of the Moys Classification scheme for library collections, which was actually developed by Elizabeth (Betty) Moys. Dhillon goes on to note that
“a very recent study suggests that, in an Internet filled with content published by AI being scraped by other AI, we could be left with a degenerating state of information and the collapse of the language learning model altogether”.
This is the information version of pop eating itself (which is largely the fault of music tech). And actually what a lot of social media already consists of. Survival of the memiest.
Last week, 19–25 June 2023, was Refugee Week — the world’s largest arts & culture festival celebrating the contributions, creativity and resilience of refugees and people seeking sanctuary. It is coordinated by Counterpoints Arts, a leading national organisation in the field of arts, migration and cultural change, together with a number of prominent partners, including UK for UNHCR, Refugee Action, The Refugee Council, Freedom from Torture, among others.
To mark Refugee Week, the immigration law blog Free Movement published some useful articles to help understand the issues and their context, including:
- What is the legal definition of a “refugee”?
- A short history of refugees coming to Britain: from Huguenots to Ukrainians
Last week also saw the 75th anniversary of the disembarking of the passengers on board the ship the HMT Empire Windrush at Tilbury docks on 22 June 1948.
‘Even now’, says Colin Yeo on the Free Movement blog, ‘five years after the Windrush scandal broke, many well-informed and well-intentioned journalists, writers and policy-makers do not really grasp the true legal position of those who have become known as the Windrush generation’: hence the need for his post, A short guide to the legal position and history of the Windrush generation.
See also: Each Other, Windrush: A Scandal That Denied Fundamental Rights
They suggest that in recent years ‘there has been a significant increase in the phenomenon of paid work for retired judges’ and their research ‘looks at the changing profile of judges’ activity in retirement, what retired judges do, and what they should (or shouldn’t) do’. This blossoming of post-judicial activity creates a problem, which they explain as follows:
“Until recently, judges of the four UK jurisdictions were subject to a convention that governed their behaviour in retirement. This retirement convention had two parts. Firstly, it required former judges to be circumspect, especially about politics and their work on the bench. Secondly, it prohibited them from returning to practice at the bar, which included non-regulated activities such as paid legal opinions.
Our conclusion, based on the empirical work conducted for the project, is that the retirement convention is now ineffective, if not completely dead. Judges now return to some form of legal practice in large numbers. There is now scepticism and confusion about the convention to such a degree that the convention exercises limited influence on post-bench behaviour. At the same time, the relevant professional or institutional regulators — the judiciary, the government and the Bar Standards Board and Law Society — have all withdrawn from this aspect of legal and judicial practice. The result is that judicial retirement is now completely unregulated.”
An example of the problem was identified recently in a post by Prof Richard Moorhead on his Lawyer Watch blog: The Ethics of Good Chaps. This concerns the post-judicial involvement of two former senior judges in the Post Office Horizon IT scandal. While they may not technically have done anything wrong, the judges unfortunately lent their names and reputation to conduct by the Post Office which has subsequently been found to be, in the words of Nick Wallis, ‘institutionally corrupt’. The lesson from this can be boiled down to one point, says Moorhead: ‘The sale of that [former senior judicial] influence should not depend on the common sense of good chaps, if it should be sold at all’.
O’Brien and Yong recommend that ‘former judges who wish to engage
in legal work after retirement should do so on a regulated basis, by applying for a practising certificate from the BSB or the Law Society’.
See also: Joshua Rozenberg, A Lawyer Writes, Life after the bench
‘Is it based on a true story?’ — A review of new BBC TV drama, “Best Interests”
Guest post by Ian Brownhill on the Transparency Project blog, discussing a recent TV drama about cases involving medical treatment decisions on behalf of a child. As a barrister who regularly practices in this area, he found the drama true to life, accurate on the legal processes, and in some respects even delightful. ‘Overall, from my perspective as a lawyer, “Best Interests” reflects the truth of the experience that many families go through,’ he concludes.
Astrud Gilberto, The Girl from Ipanema, and the inequity of intellectual property — where law and conscience clash
David Allen Green on the Law & Policy Blog discusses the song by João Gilberto and Stan Getz, which was made lucratively popular by the singing of Gilberto’s wife Astrud, yet from which she earned no more for her contribution than a session singer’s fee. What happened to her was, he says, unconscionable. But what remedy in law (or equity) could put that right?
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
CHILDREN — Parental responsibility — Father: In re A (Parental Responsibility) (MZ v FZ ), 16 Jun 2023  EWCA Civ 689;  WLR(D) 270, CA
CONTRACT — Construction — Retainer: Blacklion Law LLP v Amira Nature Foods Ltd, 15 Jun 2023  EWCA Civ 663;  WLR(D) 258, CA
COSTS — Order for costs — Costs capping order: R (CR) v Director of Legal Aid Casework, 23 Jun 2023  EWCA Civ 717;  WLR(D) 273, CA
CRIME — Evidence — Audio recording of complainant’s evidence: R v Lake (Frederick), 20 Jun 2023  EWCA Crim 710;  WLR(D) 272, CA
EMPLOYMENT — Wages — Covid-19 pandemic: Thermalhotel Fontana Hotelbetriebsgesellschaft mbH v Bezirkshauptmannschaft Südoststeiermark, 15 Jun 2023 (Case C-411/22); EU:C:2023:490;  WLR(D) 262, ECJ
ENVIRONMENT — Natural habitats — Screening assessment: Eco Advocacy CLG v An Bord Pleanála, 15 Jun 2023 (Case C-721/21); EU:C:2023:477;  WLR(D) 261, ECJ
LANDLORD AND TENANT — Lease — Tenants’ right of first refusal: Prescott Place Freeholder Ltd v Batin, 14 Jun 2023  EWHC 1445 (Ch);  WLR(D) 275, Ch D
PLANNING — Development — Crown land: Braintree District Council v Secretary of State for the Home Department, 23 Jun 2023  EWCA Civ 727;  WLR(D) 271, CA
PRACTICE — Pleadings — Claim form: Abbott v Ministry of Defence, 16 Jun 2023  EWHC 1475 (KB);  WLR(D) 263, DC
WILL — Construction — Intention of testator: Sangha v Sangha, 15 Jun 2023  EWCA Civ 660;  WLR(D) 267, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Nearly Legal: Getting it all wrong… LB Redbridge ‘dismal’ homelessness decisions: UO v London Borough of Redbridge  EWHC 1355 (Admin), KBD
Law & Religion UK: Employment and “protected beliefs”: Higgs v Farmor’s School  EAT 89, EAT
Law & Religion UK: Ethical veganism, COVID vaccine and employment: Owen v Willow Tower OPCO 1 Ltd  2400073/2022, ET
Local Government Lawyer: All Tomorrow’s (Section 106) Parties: Link Park Heathrow LLP v Secretary of State for Levelling Up, Housing and Communities  EWHC 1356 (Admin), KBD
Free Movement: Supreme Court finds golden visa scheme unlawful: R (Wang) v Secretary of State for the Home Department  UKSC 21, SC(E)
Free Movement: Court of Justice confirms British citizens lost their EU citizenship because of Brexit: Silver and Others v Council (Case C-499/21 P); EU:C:2023:479, ECJ
Free Movement: Court declines to take legal guardianship of refugee children missing from hotels: Article 39 v Secretary of State for the Home Department  EWHC 1398 (Fam);  WLR(D) 255, Fam D
UK Labour Law: “We want to strip off our clothes, not our rights” part two: Kaagobot and ors v City of Edinburgh Council  CSOH 10, Ct of Sess
Pink Tape: Beyond belief: S (A Child)  EWCA Civ 706, CA
UK Human Rights Blog: The Supreme Court provides authoritative guidance on the application of Article 2 to Coronial investigations and inquests: R (Maguire) v Blackpool and Fylde Senior Coroner  UKSC 20, SC(E)
Tweet of the week
is from a barrister about uniforms in hot weather
That’s it for now. Thanks for all your tweets and toots and linkedy-links. Go safely 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.