Weekly Notes: legal news from ICLR, 28 June 2021

This week’s roundup of legal news and commentary includes health data, algorithmic transparency, a cabinet resignation, media (un)regulation, a court user satisfaction survey and a bunch of recent cases.

No, not THAT kiss. Photo by Daniel Tafjord on Unsplash

Data protection

The Department of Health and Social Care published its draft strategy on health data, under the title Data saves lives: reshaping health and social care with data (draft). It sets out the (previous) Secretary of State’s vision for how data will be used to improve the health and care of the population in a safe, trusted and transparent way. They department says it is gathering feedback via an online survey, which will close at 5pm on Friday 23 July: Have your say

The plans have been criticised by campaigners, including privacy group medConfidential, who labelled the strategy “dubious”, and patient group Just Treatment, whose lead organiser explained:

“Data can save lives, but it can also make a lot of companies very rich. So we need to make sure these plans are putting the needs of NHS patients ahead of the demands of those keen to turn a profit.”

See Digital Health, Data strategy: Put NHS patients ‘ahead of demands for profit’

Meanwhile, on that other great health data project, the National Audit Office have published an update: Test and trace in England — progress update. This finds that while NHST&T is heavily reliant on outside consultants, and fluctuations in demand make its budget difficult to manage, it appears to have underspent by a considerable margin some of the eye-watering sums reportedly assigned to it. Or to put it another way, ‘could do better, but could have been a lot worse’.

Following news that 15 EU countries are issuing Covid-19 vaccine passports for travel, the debate over whether vaccine passports are fair is growing, says human rights blog Each Other: see Are The Rights-Based Implications Of Vaccine Passports?

The idea of vaccine or immunisation certification is not new, says Hannah Shewan Stevens: countries including Britain have required them of people who have travelled to regions with yellow fever, like sub-Saharan Africa and South America. But according to human rights barrister Adam Wagner, via a Twitter thread, “What is controversial and new is the proposed use of certificates to determine whether an individual can participate in workplace and social activities.”

See also this report from the Public Administration and Constitutional Affairs Committee on Covid-Status Certification (HC 42 Published on 12 June 2021) in response to the government’s review of the idea.

The World Economic Forum has published 9 ethical AI principles for organizations to follow, as developed by PwC, building on earlier guidelines such as the European Commission’s ethics guidelines for trustworthy AI.

“These core ethical AI principles are derived from globally recognized fundamental human rights, international declarations and conventions or treaties — as well as a survey of existing codes of conduct and ethical principles from various organizations, companies and initiatives.”

The Centre for Data Ethics and Innovation has published a report outlining the findings from a deliberative public engagement exercise conducted by BritainThinks about algorithmic transparency in the public sector. The report is entitled BritainThinks: Complete transparency, complete simplicity. The CDEI announcement explains the background to the report:

“In the CDEI’s review into bias in algorithmic decision-making, it recommended that government should place a mandatory transparency obligation on all public sector organisations using algorithms when making significant decisions affecting individuals. To move this recommendation forward, the CDEI has been supporting the Central Digital and Data Office (CDDO) as it develops a standard for algorithmic transparency. This report details findings from a deliberative public engagement exercise that the CDEI commissioned BritainThinks to carry out to explore what meaningful transparency about the use of algorithmic decision-making in the public sector could look like in practice.”

Politics

The Secretary of State for Health, Matt Hancock MP, resigned after The Sun newspaper published a CCTV image of him kissing his aide, Gina Coladangelo, at a time when such an activity would have involved breaching the coronavirus regulations (which he signed) and raising questions about his potential conflict of interest regarding the aide’s appointment as a part time adviser in his department and the granting to her of a parliamentary pass. However, the fact that the incident had been recorded on video (reportedly via a camera hidden in a smoke detector) and passed to a newspaper also raised questions over the laxness of security arrangements in his office.

The following day the Sunday Times reported that Hancock appeared to have used a private gmail account to manage official business, which raised questions both of security and transparency. Hancock had initially apologised merely for breaching his own lockdown regulations and was publicly supported by the Prime Minister, who the following day nevertheless accepted Hancock’s resignation, thereby raising questions (yet more questions) about his own judgment (and willingness to enforce the ministerial code). Sajid Javid MP has been appointed to replace Hancock at the helm of health.

Further reading:

Media regulation

A recent report by the London Communications and Media Research Institute (CAMRI), University of Westminster, questions whether the Independent Press Standards Organisation (IPSO) is really a regulator at all. Entitled IPSO: Regulator or Complaints Handler?, the report’s sub-heading rather gives the game away: “How UK news publishers set up their own regulator to avoid scrutiny”. According to its foreword:

“It concludes that IPSO is deliberately constrained by the newspaper industry from acting as an effective, independent regulator that can uphold professional standards and command public respect. In fact, this report shows, for the first time, how the IPSO structure was essentially created by the industry in advance of — and not in response to — the Leveson Report. It was designed to perform the function of a complaints handler rather than a genuine industry regulator, much like its discredited predecessor the Press Complaints Commission (PCC). It was therefore never intended, nor is it able, to operate according to the clear principles for effective and independent self-regulation laid down by Lord Justice Leveson.”

Following the Leveson Inquiry report, the Press Recognition Panel (PRP) was set up to oversee independent regulation of the newspaper industry. The PRP has issued a comment in response to the CAMRI report, agreeing with its findings. PRP chair David Wolfe pointed out that it had recognised only one regulator as complying with the standards set by the Leveson recommendations, IMPRESS. Meanwhile,

“There continue to be concerns about press standards, but people who are wronged by news publishers not belonging to IMPRESS do not have access to an independent system of redress. Parliament must act to ensure the resources invested in the Leveson Inquiry are not squandered, the promises made to those who testified aren’t broken, and the protections that the public urgently need are put in place.”

See also:

Courts

HM Courts and Tribunals Service, which this year celebrates its tenth birthday, has launched a survey to gather feedback about how it communicates and engages with professionals who work in courts and tribunals. They currently use a variety of means, including social media, the GOV.UK website, blogs, e-bulletins, working groups, forums and webinars, to communicate with people who work in courts and tribunals. They want to know:

“Are we using the right channels to reach the right people at the right time?

Are we providing the right level of detail about the things those working in the justice system want and need to know about the organisation?

What could we do better?

The survey is open for a month from 22 June 2021 and should take around 15 mins to complete: Do the survey

Recent case summaries from ICLR

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

COMPANY — Shareholder — Rule against reflective loss: Broadcasting Investment Group Ltd v Smith, 18 Jun 2021 [2021] EWCA Civ 912; [2021] WLR(D) 349, CA

IMMIGRATION — Failed asylum seeker — Provision of accommodation: R (Secretary of State for the Home Department) v First-Tier Tribunal (Social Entitlement Chamber), 22 Jun 2021 [2021] EWHC 1690 (Admin); [2021] WLR(D) 352, QBD

IMMIGRATION — Leave to remain — Qualifying child: NA (Bangladesh) v Secretary of State for the Home Department, 24 Jun 2021 [2021] EWCA Civ 953; [2021] WLR(D) 356, CA

INDUSTRIAL RELATIONS — Trade unions — Collective bargaining: R (Independent Workers Union of Great Britain) v Central Arbitration Committee (Roofoods Ltd t/a Deliveroo, interested party), 24 Jun 2021 [2021] EWCA Civ 952; [2021] WLR(D) 357, CA

LANDLORD AND TENANT — Assured shorthold tenancy — Statutory periodic tenancy: Hathaway v Minister, 23 Jun 2021 [2021] EWCA Civ 936; [2021] WLR(D) 353, CA

NATIONALITY — British citizenship — Passport: R (Gjini) v Secretary of State for the Home Department, 21 Jun 2021 [2021] EWHC 1677 (Admin); [2021] WLR(D) 351, QBD

PRACTICE — Family proceedings — Power to vary or set aside order: Des Pallieres v Des Pallieres, 25 Jun 2021 [2021] EWCA Civ 955; [2021] WLR(D) 358, CA

PRACTICE — Parties — Unnamed defendant: Crédit Agricole Corporate and Investment Bank v Persons having interest in goods held by the claimant, 21 Jun 2021 [2021] EWHC 1679 (Ch); [2021] WLR(D) 355, Ch D

Recent case comments on ICLR

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

Free Movement: Getting permission to remain in the UK as an adult dependent relative: not likely: Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886, CA

Transparency Project: Re I-A: Court of Appeal considers adoption and the inherent jurisdiction: Re I-A (children) View hearing, CA

UK Human Rights Blog: Supreme Court Revisits Wrongful Birth Claims: an extended look: Meadows v Khan [2021] UKSC 21, SC(E)

Inforrm's blog: Case Law: Webb v Jones, Facebook libel claimants beware! Webb v Jones [2021] EWHC 1618 (QB), QBD

Sentencing, Crime and Justice: Popular culture in the English Court of Appeal: R v Usman (Ibrahim)[2021] EWCA Crim 360, CA

Nearly Legal: A reasonable excuse defence to an RRO — ‘they told me they’d tell me’: D’Costa v D’Andrea [2021] UKUT 144 (LC), UT (LC)

Law and Religion Australia: Fined for declining to make a “transgender cake”: Scardina v Masterpiece Cakeshop Inc 2019CV32214, Denver District Ct, Co

Other recent news and publications

The Solicitor General, Michael Ellis QC MP, has launched a campaign to combat contempt of court online, warning of the dangers of posting comments on social media that might jeopardise the fair trial of defendants in criminal courts. He’s even provided some examples of what not to say, as Joshua Rozenberg explains on A Lawyer Writes: What not to say online.

Thousands of people are being held on remand for months, sometimes years, far beyond lawful time limits, according to a new report which also claims people are pleading guilty to avoid being stuck in prison indefinitely as a result of the backlog of cases in the courts, writes Jon Robins on The Justice Gap. The report refers to a new report by Fair Trials, Locked up in lockdown: Life on remand during the pandemic, based on individual accounts from 23 people who are or have recently been remanded in a prison awaiting trial during the COVID-19 pandemic.

“According to Fair Trials, people held on remand are pleading guilty ‘simply to avoid excessive time in prison awaiting trial’ as a result of court delays across England and Wales. The group argue there is ‘a mental health crisis’ among the on remand prison population and incidences of self-harm and suicide. ‘Being held on remand seriously impacts your health, wellbeing and relationships, with no recompense if you are found not guilty,’ it argues.”

The recent announcement that The National Archives would be creating a database of all new judgments has been welcomed as a boost to open justice (see Weekly Notes, 21 June 2021). But what effect, asks David Burrows in Precedent and The National Archives, might it have on the problem of over-citation of authorities, given that even those few judgments selected for reporting are a mixture of ratio decidendi and obiter dicta, and most judgments are not selected at all.

For an alternative view, see Dr Natalie Byrom, via the Legal Education Foundation (of which she is Director of Research): The new public repository of judgments is a triumph for open justice- but there is more to do. She points out that, currently,

“In the absence of a complete record of decisions, with agreed criteria for determining publication, arrangements for providing free public access have necessarily privileged publishing only those judgments that are legally significant or deemed by judges to be of particular interest. As a consequence, a report published by the European Commission in 2018 placed the UK bottom of a table ranking EU countries in terms of public access to judgments online.”

“Offences created by statutory instrument — should ignorance of the law be an excuse or, at least, afford mitigation?” This is the subject of a recent post on the Sentencing, Crime and Justice blog. Although the blog is an Irish one and the discussion is focused on the law of Ireland, the question is highly relevant in our own jurisdiction at a time when the breach of prolific lockdown restrictions imposed by SIs may be punished (often summarily) as criminal conduct.

Further commentary on the Daniel Morgan investigation report. David Allen Green has recorded a video for the Financial Times (no paywall) setting out how the 1,200 page, three volume independent panel report substantiates the core charge of ‘institutional corruption’ at the metropolitan police. He has also published further posts on his Law and Policy Blog, including:

On 22 June 2021 — ‘Windrush Day’ — Matrix chambers hosted an online seminar about the historic case of Somerset v Stewart (1772) 20 St Tr 1; 57 ER 499. In their webinar, “The Black Must Go Free: how a legal ruling on Windrush Day in 1772 is as relevant as ever on Windrush Day 2021” Matthew Ryder QC of Matrix, and Alexandra Wilson of 5 St Andrews Hill, discussed the detail and importance of the case; what it means to them as British barristers of Caribbean heritage, why it is often overlooked by legal historians; and its importance in a modern context legally, politically and culturally.

See also, in the context of slavery and the law:

In Dismantling a Free Society: Hong Kong One Year after the National Security Law, Human Rights Watch surveys the effect on politics, law and individual freedoms of the ever tighter control imposed by the People’s Republic of China over the formerly autonomous jurisdiction:

“… Hong Kong authorities now prohibit peaceful protests, albeit in the name of controlling the Covid-19 pandemic. Over 100 people have been arrested for violating the NSL, while over 10,000 have been arrested for their involvement in the 2019 protests, often many months after the events in question. The justifications for those arrests are frequently dubious and many violate rights guaranteed under international human rights law. Hong Kong’s police, once considered ‘Asia’s Finest’ for their adherence to professionalism and respect for rights, are increasingly implicated in abuses with impunity.”

And finally…

in which Faithful Defence Advocate takes the measure of legal research:

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.

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.