Or, as Andrew Neil put it on the Spectator TV News Channel this week, “A Dripping Roast For Lawyers”. To be fair, Neil was referring to the patchwork of mandatory vaccines across the United States. But with the publication yesterday of the Government’s consultation paper on vaccine requirements for all staff deployed in a care home supporting at least one older adult over the age of 65, the debate raging about “vaccine passports” has a real target in its sights. Not only because the government has found some primary legislation that gives it the power to introduce mandatory vaccinations, but also because the proposals are not limited to employees.
According to the consultation paper (which will take five weeks to circulate, enough for more age groups to move into vaccine eligibility bands), the vaccine requirement will extend to visiting professionals, in particular
all staff employed directly by the care home provider, those employed by an agency, and volunteers deployed in the care home. It also includes those providing direct care and those undertaking ancillary roles such as cleaners and kitchen staff.
…[and could extend to] those who provide close personal care, such as health and care workers. It could also include hairdressers or visiting faith leaders. We are also carefully considering the situation of ‘essential care givers’ – those friends or family who have agreed with the care home that they will visit regularly and provide personal care
The policy proposals provide clear exemptions, but only on medical grounds. Vaccine refusal based on cultural or religious objections is not exempt. Pregnancy is at the moment included in the medical exemption but is under review.
In Episode 139 of Law Pod UK Alasdair Henderson of 1 Crown Office Row joins Rosalind English to discuss the recent ruling by the UK Supreme Court that drivers whose work is arranged through Uber’s smartphone app work for Uber under workers’ contracts and so qualify for the protections afforded by employment law, such as minimum wage and paid holiday leave. We also touch upon the challenges brought by the other ride hailing app Ola in the Dutch Courts with respect to automated profiling of drivers. See my post on one of those rulings; this was the first time that a court had found that workers were subject to decision making by AI systems.
The Supreme Court, it will be recalled, concluded that the Employment Tribunal had been entitled to find that the claimant drivers were “workers” who worked for Uber under “workers contracts” within the meaning of the statutory definition. The Court was unanimous in its decision that this was the only conclusion which the Tribunal could reasonably have reached.
As we all know, the acquisition of puppies during lockdown has gone through the roof with the inevitable sad consequences of remorse followed by neglect and even abandonment. Dog theft has spiralled as the market responds by escalating the price of pedigree puppies.
But this case involved a different issue that could have arisen at any time (and indeed the relevant transaction took place over a year before the pandemic hit). The facts can be summarised quite briefly.
On 21 June 2018 the claimant bought an Old English Sheepdog puppy for £1000 from a professional breeder, Ms Pendragon. Ms Coom subsequently discovered that her puppy suffered from two conditions, latent at birth but which manifested themselves within months: hip dysplasia and diabetes.
This case has a history: the long running trade mark dispute between Swatch and Apple about the marks ‘I-WATCH’ and ‘I-SWATCH’. I will go back to that in a moment. The dispute in question concerned trade mark applications designating the following signs, covering a wide range of goods including watches and consumer electronic products:
SWATCH ONE MORE THING ONE MORE THING
[Full disclosure: the author of this post was an undergraduate contemporary in the eighties with Iain Purvis QC, the presiding judge in this matter. I have chosen not mischievously to publish this report on 1 April.]
“One more thing” became something of a meme since The well-known Chairman and founder of Apple, Steve Jobs, would reach what would seem to be the end of his keynote address at an industry event chosen for an important announcement, turn as if to leave the stage, and then turn back with the words ‘but there’s one more thing’. In 1998 the first ‘one more thing’ was the return of Apple to profitability. In later years, the ‘one more thing’ would often be a new Apple product. The tradition appears to have lapsed on Steve Jobs’ death in 2011 but was revived by his successor Tim Cook in 2015 for the launch of the Apple Watch.
An Amsterdam Court has ordered Ola (a smartphone-hailing taxi organisation like Uber) to be more transparent about the data it uses as the basis for decisions on suspensions and wage penalties, in a ruling that breaks new ground on the rights of workers subject to algorithmic management.
James Farrarr and Yaseen Aslam, who won the landmark victory in the UK Supreme Court in February, led the action by a group of UK drivers and a Portuguese driver, who bought three separate cases against Ola and Uber seeking fuller access to their personal data.
The following is a summary of the case against Ola taxis. Anton Ekker (assisted by AI expert Jacob Turner, whom we interviewed on Law Pod UK here) represented the drivers. He said that this case was the first time, to his knowledge, that a court had found that workers were subject to automated decision-making (as defined in Article 22 of the GDPR) thus giving them the right to demand human intervention, express their point of view and appeal against the decision.
Ola is a company whose parent company is based in Bangalore, India. Ola Cabs is a digital platform that pairs passengers and cab drivers through an app. The claimants are employed as ‘private hire drivers’ (“drivers”) in the United Kingdom. They use the services of Ola through the Ola Driver App and the passengers they transport rely on the Ola Cabs App.
Proceedings are pending in several countries between companies offering services through a digital platform and drivers over whether an employment relationship exists.
By separate requests dated 23 June 2020, the first two claimants requested Ola to disclose their personal data processed by Ola and make it available in a CSV file. The third claimant made an access request on 5 August 2020. Ola provided the claimants with a number of digital files and copies of documents in response to these requests.
Ola has a “Privacy Statement” in which it has included general information about data processing.
All references in this judgment is to the AVG, which is Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (GDPR).
Sophie Basma (“Sophie”) is 10. She suffers from Type 3 Spinal Muscular Atrophy (“SMA”). SMA is a rare, genetic, neuromuscular disease which progressively leads to sufferers being unable to walk or sit unaided with devastating consequences on their quality of life. Sophie can no longer walk. There is medication for SMA sufferers which would have had the potential of helping Sophie regain her ability to work. But the NHS Trust had concluded that Sophie did not meet the eligibility criteria for this new medication, “Nusinersen”.
By her mother she challenged the decision by way of judicial review. The judge below found that the NHS Trust had lawfully reached the decision that they did. This was her appeal against that finding.
The Hague Court of Appeal has recently handed down a ruling that is of profound importance to environmental lawyers. It is not only the first case at the appellate level in Europe that has resulted in a victory on the merits for the victims, but also the first case to hold that a parent company was under a duty of care with regard to foreign claimants. I will attempt to summarise one of the judgments in the following paragraphs, but readers would do well to look at the detailed analysis of the case by Dr Lucas Roorda on the Rights as Usual blog: “Wading through the (polluted) mud: the Hague Court of Appeals rules on Shell in Nigeria”.
David Hart QC will follow up my post with a piece on the UK Supreme Court decision in Okpabi v Shell on 12 February 2021.
There are in fact three judgments in this case Four Nigerian Farmers and Milieudefensie v. Shell; as Dr Roorda says,
The first (‘Cases A and B’) concerns an oil spill from an underground pipeline near Oruma in 2005; the second (‘Cases C and D’) concerns an oil spill from an underground pipeline near Goi in 2004; the third (‘Cases E and F’) concerns an oil spill from a wellhead near Ikot Ada Udo.
In the latest episode of Law Pod UK Rosalind English talks to Matt Hervey, co-editor with Matthew Lavy of a new practitioner’s text book on Artificial Intelligence. Matt is Head of Artificial Intelligence at Gowling WLG., and advises on all aspects of AI and Intellectual Property, particularly in relation to the life sciences, automotive, aviation, financial and retail sectors. Our discussion ranges across many areas covered by the book, which was conceived a mere three years ago when the only laws we had to deal with machine learning were those to do with self-driving vehicles and automated decision making under the GDPR. This is a very important subject which is why Law Pod UK visits it again and again; Matt compares machine learning to the industrial revolution itself.
The ability to understand patterns in language and sudden unlocking ability of machines to understand language and see things has massive implications.
But there are much greater challenges, particularly on the topics of liability, foreseeability, and the general risks of AI,
a technology that is aiming to replicate or even transcend human abilities.
In the forthcoming months I will be speaking to Matt’s fellow contributors to the book on their specialist subjects, including negligence, liability for physical and economic harm, AI and professional liability, and more on AI and intellectual property, a fascinating subject which Matt touches on in this episode.
In an earlier post I discussed the problem of “vaccine hesitancy” and written evidence to Parliament to Parliament outlining ways in which a vaccination against Covid-19 without consent could be put on a par with capacity under the Mental Capacity Act 2005 and with Section 3 of the Mental Health Act 1983.
Since the announcement of successful clinical trials for the vaccination was made in mid-December, the prospect of population-wide vaccinations has become a reality, and, whilst there are still supply problems, there is no doubt that the issue of medical intervention without consent being made mandatory either through private channels has begun to exercise legal minds across the country. Saga cruise line and the airline Qantas for example have indicated their intention to refuse non vaccinated passengers. Such private prohibitions may have almost as broad an effect as the restrictions on civil liberties passed under the Coronavirus Act since lockdown was declared on March 23 2020 (more specifically, the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020).
Snowed in while locked down? What would be more cheering reading than news from one of the no-frills airlines that there will soon be a fast track for vaccinated passengers to leave these shores for balmy Mediterranean beaches, or as the ad puts it “sunshine destinations”. Ryanair recently put out the slogan
Jab and Go
This advertising campaign, encouraging consumers to book flights following the roll out of the UK vaccination programme, might have been a perfectly understandable response to the year-long shock of having very few passengers to transport and the equally deranging inability of citizens to travel abroad.
But it turns out that Ryanair were somewhat ahead of themselves, as the Advertising Standards Authority has found that it was misleading for the airline to give the impression that most people who are hoping to take to the air over the Easter or summer holidays this year will have had the Covid-19 vaccination in time to do so.
Following my post on the Weimar District Court judgment, here is news from Belgium. This summary of the ruling is from the journal LeVif.
The police tribunal in Brussels issued a judgment on 12 January acquitting a man summoned for non-wearing of a mask, according to his lawyer, Hélène Alexandris. The judge concluded that the enforced wearing of the mask in public space was unconstitutional. Interior Minister Annelies Verlinden said the public prosecutor has appealed against the decision.
In a landmark judgment on January 11, a district court judge in Weimar declared the prohibition on social contact unlawful as contrary to the German Basic Law (Gründgesetz). Its order at the time had been unconstitutional because the Infection Protection Act was not a sufficient legal basis for such a far-reaching regulation as a contact ban, the ruling said. The order of the contact ban had violated human dignity and had not been proportionate. (Reported in MDR Thüringen on 22 January 2021)
Kontaktverbot verstößt gegen Menschenwürde (Verdict: Contact ban violates human dignity)
In this case a citizen of Weimar had been prosecuted and was to be fined €200 for celebrating his birthday together with seven other people in the courtyard of a house at the end of April 2020, thus violating the contact requirements in force at the time. This only allowed members of two households to be together. The judge’s conclusion was that the Corona Ordinance was unconstitutional and materially objectionable.
This is the first time a judge has dealt in detail with the medical facts, the economic consequences and the effects of the specific policy brought about by the Coronavirus pandemic (thanks to @HowardSteen4 for alerting me to this judgment, and commentaryquoted below).
On Wednesday 30 December, the UK parliament passed Boris Johnson’s trade and cooperation agreement with the European Union. Professor Catherine Barnard of Cambridge University is continuing her series 2903 CB. Everyone agrees this is a bit of a thin deal – as Catherine predicted – but is it a good deal?
As Catherine said, the negotiating team has delivered on sovereignty. There’s no reference in the text to the CJEU or EU law. On the other hand, there’s very little about services of any sort in the deal. This is because the UK was so keen not to be subject to the European Court of Justice, so it was not looking for concessions in this area.
The document is a daunting 1246 pages long – but the first four hundred odd are the meat of the deal, and in Episode 133 Professor Barnard delivers a succinct and truly helpful summary of what she calls a “Canada minus” free trade deal.
One question David didn’t go into occupies only two pages of the 183 paragraphs but is worth a post on its own. The claimant insurers argued that the defendant Secretary of State had unlawfully omitted to make regulations under the Social Security (Recovery of Benefits) Act 1997 that would have limited the amount of the liability imposed on the insurer by that Act (Section 22(4)). This is because of subsequent developments in the law of tort which made unlimited liability unfair. They maintained that as Parliament had itself been prepared to delegate authority in this area to the Executive, the failure of the defendant to make secondary legislation led directly to their loss. Section 30(1) of the 1997 Act provides that any power under it to make regulations or an order is exercisable by statutory instrument.
Covid, clinical negligence, quarantine, lockdown, inquests, nerve agents, algorithms, child abuse, coercive and controlling behaviour and racism. What’s there not to like in our smorgasbord of favourites from the past eleven months?
Worry not: there are laughs to be had. A bee bothers a bureaucrat with solemn consequences for subordinate legislation in a motion of regret debate.
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