Weekly Notes: legal news from ICLR, 9 June 2023
This week’s roundup of legal news includes Canada conference report, a judicial review claim by the government, and some recent judicial speeches, case law and commentary.
Lots of AI at IRL themed #CALL/ACBD2023
The theme of this year’s conference of the Canadian Association of Law Libraries was initialised “IRL”, representing Innovation, Research and Leadership — but with an obvious nod to the fact that this was the first such event to be held In Real Life after several years of pandemic remoteness. So far as the first two initials were concerned, much of the discussion was around innovation in the form of artificial intelligence (AI), its application in legal research, its risks, and the possible benefits for lawyers, clients, and access to justice.
On Monday afternoon there was a panel discussion entitled ChatGPT Applications in Legal, in which Colin Lachance of Jurisage, Mark Doble, Brenda Lauritzen and Shaunna Mireau shared their insights and experiences of Chat GPT, GPT4 (it’s worth knowing the difference) generative AI and LLMs (Large Language Models) in general. The point was made that these applications are not a “truth machine” but, rather, a marketing tool for Open AI. While they may work well with language, eg in providing case summarisation or topic identification, they are not genuinely intelligent. Chat GPT was described as “A really confident speaker who doesn’t actually know what they’re talking about”. There were issues about copyright infringement (in the use of training material) as well as the lack of regulation more generally. AI might make lawyers’ jobs more efficient, but it wasn’t going to replace them or allow them to work less hard. It remained to be seen whether they might assist access to justice. A problem with education is that as the tech gets better, the information literacy of those who rely on it goes down. What students needed to learn, whether with Google, Wikipedia or ChatGPT was the critical thinking needed to assess and check the output. The sooner a student learnt the limitations of a resource, the sooner they could learn to use its benefits.
On Wednesday morning there was a presentation by the authors — Benjamin Alarie and Abdi Aidid — of a forthcoming book, The Legal Singularity, talking up the positives about AI and its potential for access to justice. What they mean by “the legal singularity” is the point at which all threads converge —a future state when technology will facilitate functional completeness of the law. The law remained incomplete because not every situation to which rules might apply had been covered or could be known. But in an ideal state, the law would predict every outcome in every possible problem or dispute. Five claims were made for this concept.
- Fairer, better law. Access to justice. The law would be simplified, better calibrated, only as complex as a given problem required it to be. Even when complex, our capacity to navigate it would be improved.
- Judging would change, become more normative and policy oriented. Less risk of someone using vagueness of the law to elude consequences.
- Law would be knowable everywhere and on demand. People would have a realtime sense of their rights and obligations.
- Evolved lawyering — lawyering would be more pervasive but would change in ways that demanded more creativity and dynamism. Not the end of lawyers, but the end of them doing what technology could do instead.
- More rigorous debate: the proliferation of AI tech would require grappling with law’s deep shortcomings and possibilities. It could bring things like wage differentials into sharp focus, for example.
There were sessions on other topics, but these were the ones that attracted our attention, partly because we were also promoting our own AI-driven case research tool, Case Genie. Aside from that, we were delighted to find so many familiar faces and to meet many new friends among the delegates and our fellow exhibitors. We managed a day trip to Niagara Falls, a fascinating afternoon looking at indigenous beading culture in the Art Gallery of Hamilton, and enjoyed the local craft beers and gastropub cuisine of a city which sadly remains overshadowed by its much larger and more cosmopolitan neighbour, Toronto.
Judicial review of demand for evidence
The government is bringing judicial review proceedings against the Covid-19 Inquiry to challenge the lawfulness of its demand for evidence. The case is titled R (Cabinet Office) v Chair of UK Covid-19 Inquiry, with Boris Johnson MP listed as an interested party.
The Covid-19 Inquiry has been established under the Inquiries Act 2005, section 21 of which empowers its chair (in this instance Baroness Heather Hallett, a former Lady Justice of Appeal) to require the production of evidence. Refusal to comply would constitute a criminal offence (under s 35), and a request for evidence can be enforced by the High Court (under s 36). There is also a less draconian power to ask for evidence under rule 9 of the Inquiry Rules 2006.
Evidence has been obtained from various sources already. But a demand for the evidence in the form of diaries, notebooks and WhatsApp messages of discussions between the then Prime Minister Boris Johnson and other members of the government in relation to that part of the inquiry’s investigation (under its terms of reference) into “how decisions were made, communicated, recorded, and implemented” during the pandemic, has met with resistance from the Cabinet Office.
Boris Johnson himself has been happy to pass over the unredacted messages from his current mobile phone, but he has an older phone which was locked on security advice because it appeared to have been hacked. Its contents, too, are sought. (A technical solution has been suggested to enable that.)
It is the government in the form of the Cabinet Office which is objecting to the Inquiry having access to all the messages in unredacted form, on grounds that much of them aren’t relevant to the inquiry, and announced on 1 June that it would be seeking a judicial review of the inquiry’s order to hand them over.
The effect of the case will be to test the limits of the Inquiry’s powers to summon evidence, and that might be important for other members or former members of the government, or just to avoid political embarrassment for the government. It will also decide who decides on what is relevant to the inquiry and who gets to do the redacting of evidence.
- David Allen Green, Law & Policy Blog, A detailed explanation of the government’s judicial review of the Covid Inquiry — and why this judicial review is so significant
- Joshua Rozenberg, A Lawyer Writes, No kompetenz-kompetenz?Government says Hallett cannot set her own limits
- Channel 4 News Factcheck: Why is the government taking legal action over the Covid inquiry’s order for Johnson’s WhatsApp messages?
[Postscript. The last time something like this happened was when the Bloody Sunday Inquiry chaired by Lord Saville of Newdigate was challenged in the High Court over its refusal to allow British soldiers to give oral evidence away from Londonderry, where the inquiry was being held, owing to their fears of potentially fatal attack by terrorists. I covered the case in the Divisional Court  EWHC Admin 888, and reported it for The Times, but it was only reported in the Weekly Law Reports when, a month later, the Court of Appeal affirmed its decision: R (A) v Lord Saville of Newdigate  EWCA Civ 2048;  1 WLR 1249, CA.]
Recent speeches and lectures not yet published on BAILII’s fully searchable new database of judicial speeches
Judicial Independence and Accountability in the 21st Century: Challenges and Opportunities
Public Lecture given at The School of Law, Economics and Governance, University of Malawi on 5 June 2023 in which the Lord Chief Justice, Lord Burnett of Maldon discussed the rule of law, by reference to seven key principles pertaining to the independence of the judiciary.
The Developing Jurisprudence of the Supreme Court on Convention Rights
Giving the keynote speech at the Scottish Public Law Group Conference, on 5 June 2023, Lord Sales explored six key themes deriving from the shared Anglo-Scottish experience of working with Convention rights as reflected in the jurisprudence of the Supreme Court.
“Delicate Plants”, “Loose Cannons” or “A Marriage of True Minds”?
Lady Justice Carr giving the Harris Society Annual Lecture at Keble College, Oxford on 16 May 2023, discussed the Role of Academic Literature in Judicial Decision-Making.
Historically, there was an established convention that academics should not be cited until long after their death. They were, as Professor Duxbury famously put it, “better read when dead”. But following the vast expansion of university education in the 1960s, and the creation of the Law Commission in 1965, academics came to be cited more and more by judges. Academic opinion could be instrumental in creating new legal doctrine, correcting apparent errors or deficiencies in the law, and providing food for judicial thought.
Academics were not necessarily “delicate plants” detached from the realities of judicial decision-making, nor were they “loose cannons” too bold and invasive in pushing the law forward. Rather, they were able to engage in constructive dialogue with the judiciary in what was “a marriage of true minds”, said Lady Justice Carr.
James Bond and the Law
An entertaining talk given to the Manchester Business and Property Courts Forum by Mr Justice Foxton on 25 May, in which his Lordship recalls various cases associated with the James Bond franchise, including intellectual property disputes over the music and titles, contractual disputes, the writing of and acting in the films, and so forth. Among other choice morsels is a delightful judgment in Danjaq LLC v. Sony Corp., 263 F.3d 942 (9th Cir. 2001) from the 9th Circuit Court of Appeals where Justice Margaret McKeown opens with:
“Every so often, the law shakes off its cobwebs to produce a story far too improbable even for the silver screen — too fabulous even for the world of Agent 007. This is one of those occasions, for the case before us has it all. A hero, seeking to redeem his stolen fortune. The villainous organization that stands in his way. Mystery! International intrigue! And now, not least of all, the dusty corners of the ancient law of equity.”
Lots more to read and enjoy.
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
COMPANY — Debt — Enforcement: Invest Bank PSC v El-Husseini (El-Husseiny v Invest Bank PSC), 19 May 2023  EWCA Civ 555;  WLR(D) 238, CA
CONFIDENTIAL INFORMATION — Misuse of private information — Reasonable expectation of privacy: Prismall v Google UK Ltd, 19 May 2023  EWHC 1169 (KB);  WLR(D) 242, KBD
CONSUMER PROTECTION — Distance and off-premises contracts — Information requirement: DC v HJ, 17 May 2023 (Case C-97/22); EU:C:2023:413;  WLR(D) 235, ECJ
CRIME — Court of Appeal (Criminal Division) — Extension of time: R v MT, 24 May 2023  EWCA Crim 558;  WLR(D) 240, CA
PRACTICE — Claim form — Service: Walton v Pickerings Solicitors, 06 Jun 2023  EWCA Civ 602;  WLR(D) 243, CA
SHIPPING — Cargo — Delivery: FIMBank plc v KCH Shipping Co Ltd (No 2) (The Giant Ace), 24 May 2023  EWCA Civ 569;  WLR(D) 239, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
Free Movement: Judicial bias against Presenting Officer amounts to an error of law: Secretary of State for the Home Department v MS  UKUT 114 (IAC), UT
Nearly Legal: Shared Ownership and Right to Manage: Avon Ground Rents Ltd v Canary Gateway (Block A) RTM Co Ltd  EWCA Civ 616, CA
Local Government Lawyer: Court of Appeal overturns judgment on use of appeal planning officers: Smith v Secretary of State for Levelling Up, Housing and Communities  EWCA Civ 514, CA
Free Movement: Upper Tribunal provides guidance on correct approach in deprivation of citizenship appeals: Chimi (Reine) v The Secretary of State for the Home Department (Deprivation appeals; scope and evidence) (Cameroon)  UKUT 115 (IAC), UT
Free Movement: High Court considers government actions to safeguard a dual British national abroad: R (Kanu) v Secretary of State for Foreign, Commonwealth and Development Affairs  EWHC 652 (Admin), KBD
Free Movement: Court finds Afghan resettlement decision was made contrary to policy and without adequate reasons: R (MKA) v Secretary of State for Defence  EWHC 1164 (Admin), KBD
Law & Religion UK: Public benefit for the rich? Nuffield Health v Merton London Borough Council  UKSC 18, SC(E)
Electronic Immigration Network: Court of Appeal on credibility, standard of proof and appellate court’s role: MAH (Egypt) v Secretary of State for the Home Department  EWCA Civ 216, CA
Tweet of the week
is a reminder from a criminal barrister of the risks of audible interference in the courtroom
That’s all for now. (Later than usual because we were travelling.) Thanks for reading, and thanks for all your toots, tweets, posts and links.
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.