The Weekly Round-up: Legal but harmful content, ministerial breaches, and public record breaches
5 December 2022
In the news
The proposed requirement for social media platforms to delete ‘legal but harmful’ content has been partly removed from the Online Safety Bill. While the change affects adult users, the requirement to prevent children being exposed to harmful content remains in the Bill. Culture Secretary, Michelle Donelan, denied that this change was ‘weakening’ the laws protecting social media users because there will be more control about what people see on specific sites. The kinds of material people will have control over include content promoting eating disorders or inciting hate on the basis of race, gender, or religion. The removal of the ‘legal but harmful’ element of the Bill has been welcomed by many who criticised it for ‘posing a threat to free speech’. Lucy Powell MP, however, states that the removal of the section gives a ‘free pass to abusers and takes the public for a ride’.
The Domestic Abuse Commissioner has warned that a ‘deeply unjust’ postcode lottery puts victims of domestic abuse at greater risk depending on where they live in the country. The statistics demonstrate that regional inequalities exist in terms of accessing support for domestic abuse, with a 21% difference between the highest performing area (the North-East) and the lowest performing area (Wales). The report also found that black and minority ethnic victims of domestic violence struggle to access necessary support. Consequently, the Commissioner has urged that the Victims Bill place a duty on local authorities to conduct needs assessments along with a new central obligation to provide greater funding to meet those needs.
In other news
- Under a new duty, Councils, NHS trusts and other local bodies will have to consider how decision-making affects members of the Armed Forces. Schools, for example, will be required to consider if a parent is a member of the Forces and ‘give due consideration to their requirement for flexible leave depending upon the requirements of their military career’.
- New data has revealed that 40 potential breaches of the ministerial code have never been referred for investigation by the ethics adviser. In discovering this, the report stated that it would be concerning if Rishi Sunak’s new adviser was not allowed to examine historical cases, which a parliamentary committee warned would be the case previously. One of the recommendations of the report is to make former ministers and civil servants who break the rules regulating the relation between government and the private sector face legal action.
- The High Court has been asked to decide whether a teenager who is on life-support following an apparent suicide attempt can be allowed to die. Hospital bosses have prospectively asked whether it would be lawful to remove life-support treatment, but the trial has been adjourned until the new year so that the family could have ‘as normal and as peaceful’ a Christmas as possible.
In the courts
- In The Good Law Project v The Prime Minister  EWCA Civ 1580, the Court of Appeal dismissed an appeal and a claim for judicial review regarding duties owed in relation to public records under section 3(1) of the Public Records Act 1958. S3(1) establishes a duty on ‘every person responsible for the public records… to make arrangements for the selection of those records which ought to be permanently preserved and for their safe-keeping.’ The substantive issues on appeal were (i) whether this duty extended to the preservation of records before they are selected; and (ii) whether there was a duty to comply with 8 published policies. In respect of the first issue, the Court held that Parliament did not impose a general duty to retain public records and did not specify that records were to be retained pending their selection. The Court was not willing to find that the duty was implied either, as to do so would mean the duty applied to all records which would overwhelm the Departments and the National Archives . In respect of the second issue, the Court found that there was no duty to comply with the policies. Importantly, they were directed to ministers and civil servants, not to the public. the Appellant could not, therefore, enforce it against the Respondent. The policies were internal and could not be framed as absolute duties not to use certain methods of communication.
- In Kays v Secretary of State for Work and Pensions  EWCA 1593, the Court of Appeal dismissed an appeal against the refusal of a claim for universal credit. The Appellant was a student with severe disabilities. He applied for universal credit under the understanding that students in receipt of disability living allowances are entitled. His claim was refused because he had not been assessed as having limited capability for work before the claim was made (as per the 2020 Regulations), which he claimed was unlawful. The grounds for appeal were that the Respondent acted irrationally in deciding not to consult before making the 2020 Regulations, and that it resulted in arbitrary results. It was held that no duty exists to consult on the making of regulations; the Respondent was not obliged to consult and did not see anything necessitating her to do so. It was held that there was nothing irrational in that approach . It was also held that the 2020 Regulations did not lead to arbitrary results because the issues complained of were not caused by the Regulations themselves. The opportunity to obtain an assessment of work capability was contained in the relevant regulations before the 2020 Regulations were made .
- In Ware v French  EWHC 3030 (KB), the High Court found in favour of the Claimant in a defamation trial regarding the Panorama documentary ‘Is Labour Anti-Semitic?’ that aired in July 2019. An article was published in Coldtype magazine by the Defendant entitled ‘Is the BBC Anti-Labour? Panorama’s biased AntiSemitism Reporting – A Case to Answer, an investigation by Paddy French’. The Claimant, the programme’s reporter, claimed that the article was defamatory because it caused him serious harm by describing him as a rogue and biased journalist. This position was described as ‘overwhelming’. The wide dissemination of the article, the large interest in antisemitism within the Labour Party, and the Claimant’s high profile as a journalist all contributed to a situation where the allegations directly impacted the Claimant’s ability to earn a living.