By: Alice Irving

Twitter, trans rights and the role of the police — an extended look

21 February 2020 by Alice Irving

The case of R (Miller) v The College of Policing & The Chief Constable of Humberside [2020] EWHC 225 (Admin) is yet another decision arising out of an individual’s use of Twitter to share transphobic, or as they see it “gender critical”, views.

But it would be too narrow to characterise the case as being about trans rights only. At its core, it concerns the role of the police in responding to reports of hate incidents which do not amount to criminal behaviour. As such, the findings of Julian Knowles J have implications that extend beyond trans rights, impacting on how police should respond to reports of racism, antisemitism, Islamophobia, and other forms of discrimination that fall short of criminality. Clearly, the case raises extremely important questions. The Claimant already has permission to appeal to the Court of Appeal and a leapfrog certificate, allowing him to go directly to the Supreme Court to ask for permission to appeal there.

Court of Appeal upholds the right to roam of Romany and Travellers

27 January 2020 by Alice Irving

The Court of Appeal, in The Mayor and Burgesses of the London Borough of Bromley v Persons Unknown [2020] EWCA Civ 12, has delivered a unanimous judgment reaffirming the rights of the Romany (‘Gypsy’) and Traveller community to live in accordance with their traditional, nomadic way of life.

The case is significant for two reasons. First, in recent years there has been a spate of local authorities applying for injunctions which prevent Romany and Travellers setting up unauthorised encampments in their boroughs. There are now 38 of these injunctions nationwide.

Despite the clear effect on Romany and Travellers of these injunctions, this case was the first time the Romany and Traveller community was represented at a hearing where an injunction was sought.  Further, it is the first case where an injunction of this sort has been considered by the Court of Appeal.

Lord Justice Coulson, delivering the leading judgment, gives clear guidance for local authorities, significantly limiting the scope for use of injunctions against the Romany and Traveller community in the future.

Second, in its judgment, the Court of Appeal reaffirms the centrality of a nomadic lifestyle to Romany and Traveller tradition and culture.

Drawing on European case law, the court was clear that measures which affect the ability of the community to stop their caravans have profound human rights implications. Not only do they impact upon the rights of Romany and Travellers to respect for their home, they also affect their ability to maintain their identity and to lead their private and family life in accordance with tradition. The European Court of Human Rights has found an emerging international consensus, that recognises the special needs of minority communities, and the obligation to protect their security, identity and lifestyle.

Rise of the algorithms

4 November 2019 by Alice Irving

The use of algorithms in public sector decision making has broken through as a hot topic in recent weeks. The Guardian recently ran the “Automating Poverty” series on the use of algorithms in the welfare state. And on 29 October 2019 it was reported that the first known legal challenge to the use of algorithms in the UK, this time by the Home Office, had been launched. It was timely, then, that the Public Law Project’s annual conference on judicial review trends and forecasts was themed “Public law and technology”.

Basic tech for lawyers

The conference helpfully opened with a lawyer-friendly run down of algorithms and automation. Dr. Reuben Binns (ICO Postdoctoral Research Fellow in AI) drew a number of useful distinctions.

The first was between rule-based and statistical machine learning systems. In rule-based systems, the system is programmed to apply a decision-making tree. The questions asked and the path to a particular outcome, depending on the answers given, can be depicted by way of flow-chart (even if that flow-chart might be very large, involving numerous branches). In contrast, statistical machine learning involves a computer system training itself to spot patterns and correlations in data sets, and to make predictions based on those patterns and correlations. The computer system is first trained on data sets provided by the system designer. Once trained, it can be used to infer information and make predictions based on new data. These systems might be used, for example, to assess the risk of a person re-offending, where the system has been trained on existing data as to re-offending rates. It has long been known that machine-learning systems can be biased, not least because the data on which they are trained is often biased.

“Women are equal to everything” says ex-barmaid, current President of the Supreme Court

26 October 2019 by Alice Irving

Even before Lady Hale and her spider brooch rose to national prominence following media coverage of Miller (No 2), she was something of a hero amongst female lawyers. A trailblazer in the profession, she was the first women appointed to the Law Commission, the first female Law Lord  and the first female president of the Supreme Court. But it isn’t just Lady Hale’s rise through the ranks of the male-dominated legal profession that is inspirational. It is also the use she has made of the positions she has attained. 

While at the Law Commission, Lady Hale played a significant role in the landmark reform that was the Children Act 1989. This placed the “best interests” of the child at the centre of public sector decision-making and represented a huge step forward for children’s rights. Amongst the many progressive and illuminating judgments penned by Lady Hale in the House of Lords and the Supreme Court, one of the most important is arguably the decision in Yemshaw v London Borough of Hounslow. In this case she held that domestic violence is not limited to physical violence. Lady Hale’s contributions provide a shining example of the importance of diversity in positions of power within the legal world. It cannot be doubted that she has brought a new perspective to bear that has enriched law-making in this country.