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Professor Richard Susskind OBE is the IT adviser to the Lord Chief Justice of England and Wales, author of several books on technology and the law, and has been warning the legal profession about the effects of computing power on the law for decades. He is described by his publisher OUP as “the leading global authority on the future of legal services, based on 40 years of work in the field”
The latest edition of his book Tomorrow’s Lawyers predicts more change in law in the coming two decades than we have seen in the past two centuries.
Listen to Richard in discussion with Rosalind English in Episode 185 of Law Pod UK.
Finally, we at LawPod UK want your feedback! Please take a couple of minutes to fill in this very short anonymous survey. Thank you in advance.
On Wednesday, it was announced a committee of MPs will examine the Metropolitan Police’s treatment of protesters at the Coronation of King Charles III on Saturday 6 May. A total of 64 people were arrested on the day of the coronation, 52 of which were made because police feared protesters intended to disrupt proceedings. The Met expressed “regret” over the arrest of six members of the anti-monarchy protest group, Republic, who were detained on suspicion they were equipped for locking on – a new offence introduced by the Public Order Act 2023 which only came into force on the 3 May. The Met’s heavy handedness has been widely criticised, but many commentators have focused attention on weaknesses in the legislation itself, calling it “too wide” and “too rushed”. There are fears police and public confusion over the scope of the Act will negatively affect protester’s rights in the future.
On May the 10th the government announced that a fundamental change to the Retained EU Law Bill. As you will hear from Episode 184, I discuss with Sam Willis of the Public Law Project the so called sunsetting clauses in the bill which would have repealed all EU legislation at the end of the year, with the exception of any EU law that ministers decided to keep. Since this episode was recorded, business Secretary Kimi Badenoch has said that the the government is to publish a list of the retained laws that will be scrapped by the end of 2023. Instead of thousands of unspecified EU laws expiring by the end of the year, a mere 600 out of the 5000 odd pieces of legislation from the EU era will be repealed. So please bear this in mind when listening to our discussion.
Here are the full citations for the cases referred to in the episode:
Walker v Innospec Ltd [2017] UKSC 47, [2017] 4 All ER 1004 Horton v Sadler [2006] UKHL 27, [2007] 1 AC 307, [29] (Lord Bingham), cited as continuing to be applicable in Peninsula Securities Ltd v Dunnes Stores Ltd (Bangor) Ltd [2020] UKSC 36, [2020] 3 WLR 521, [49] (Lord Wilson JSC) (both applying Practice Statement (Judicial Precedent) [1966] 1 WLR 1234) Lock v British Gas Trading Ltd [2016] EWCA Civ 983, [2017] 4 All ER 291
Tunein Inc v Warner Music UK Ltd & Anor [2021] EWCA Civ 441 (26 March 2021)
And here are the following pensions cases that are relevant to this issue:
Case C-17/17 Hampshire v Board of the Pension Protection Fund [2019] ICR 327 Case C-168/18 Pensions-Sicherungs-Verein VVaG v Günther Bauer [2020] 2 CMLR 26 And see Hansard for the fourth sitting of the Public Bill Committee on the 22 November 2022, at pages 168-169, for the Minister’s following comments:
“the Department for Work and Pensions does not intend to implement the Bauer judgment through the benefits system, as it is a European Court judgment that does not fully align to the UK private pension protection scheme”
On 29 November 2019 Usman Khan attended a rehabilitation event at Fishmongers’ Hall and stabbed five people, two fatally. On 2 February 2020 Sudesh Amman attacked two passers-by in Streatham High Road with a knife before being shot dead by police. Both men had previously been convicted of terrorism offences. Both men had been automatically released on licence halfway through their custodial sentences.
Following these attacks, on 3 February 2020, the Secretary of State for Justice made a statement to the House of Commons highlighting that in the interests of public protection immediate action needed to be taken to prevent automatic early release halfway through an offender’s sentence without oversight by the Parole Board. He announced that terrorist offenders would now only be considered for release once they had served two-thirds of their sentence and would not be released before the end of the full custodial term without Parole Board approval. This proposal was passed in England and Wales with the enactment of the Terrorist Offenders (Restriction of Early Release) Act 2020. It was extended to Northern Ireland by the Counter Terrorism and Sentencing Act 2021 (“the Act”).
Yet again, the Public Order Bill and the Illegal Migration Bill have been back in the papers this week. The latter has made it through the House of Commons by 59 votes, following threatened rebellions from both the right and liberal wings of the Tory party. One of the resulting amendments provides the Home Secretary with the discretion to refuse to comply with interim injunctions from the ECtHR – known as ‘Rule 39 Orders’ (or ‘pyjama injunctions’ by some Tory MPs). In deciding whether to exercise her discretion, the Home Secretary will be entitled to have regard to the timeliness of any orders made by Strasbourg, as well as the ‘transparency’ of such orders. It is, however, unclear what practical effect this will have since the obligation to obey these orders exists at the international level, which domestic legislation cannot change. Once the Bill is debated in the House of Lords, it is expected that several amendments will be tabled in an attempt to temper some of the more draconian measures in the Bil – such as the detention of pregnant women and children – after the Equality and Human Rights Commission said that it is ‘seriously concerned’ about the impact of the Bill on such groups, and the implications for victims of modern slavery. Regarding the Public Order Bill (which is awaiting royal assent), the UN High Commissioner for Human Rights has described the measures introduced by the Bill as ‘wholly unnecessary’, ‘disproportionate’ and inconsistent with our international obligations, and has called on the government to reverse the legislation ‘as soon as feasible’. The government maintains that both Bills are necessary and compliant with international law.
The increasingly violent conflict in Sudan has prompted the UNHRC to call on both the Sudan Armed Forces and the Rapid Support Forces to halt the targeting of civilians and civilian infrastructure. Since the conflict broke out on 15th April just over two weeks ago, over 20,000 people have fled Sudan for Chad, with various states, including the UK and Saudi Arabia, involved in the evacuation effort. Reports have come in of deliberate bombing of residential homes, repeated breaches of ceasefires and at least 400 dead in the capital, Khartoum. However, this figure is likely to be much higher, as the conflict is preventing many from seeking help. It’s also reported that millions are without water and power as a result of the targeting of civilian infrastructure. Human Rights Watch has said that the conflict highlights the need for increased international scrutiny in the region, and MPs in Westminster have called for sanctions on certain Sudanese officials.
In Episode 183 Lucy McCann speaks to Cara Guthrie and Matthew Flinn of 1 Crown Office Row about multi-defendant litigation in the field of clinical negligence. The discussion covers, who to sue, the costs implications of having multiple defendants, contribution proceedings, apportioning liability between defendants, and interim payment applications.
It has been widely reported that the German magazine Die Aktuelle recently ran a front cover with a picture of a smiling Schumacher and the headline promising ‘Michael Schumacher, the first interview’.
The strapline added: “it sounded deceptively real”.
Anyone walking past a news stand would have assumed that this was a genuine interview with the former Formula 1 driver, who has suffered catastrophic brain injury since a skiing accident in 2013. Only buyers of the edition would have learned from the full article inside, that the ‘quotes’ had been produced by AI.
The news agency Reuter reports that “Schumacher’s family maintains strict privacy about the former driver’s condition, with access limited to those closest to him.”
And in a 2021 Netflix documentary his wife Corinna said
Dominic Raab has resigned as deputy prime minister after a bullying inquiry vindicated a number of civil servants’ claims about his behaviour as a minister in the cabinets of Boris Johnson and Theresa May. The report of Andrew Tolley KC held that Raab’s behaviour constituted an “abuse or misuse of power,” citing instances of an intimidating and discouraging attitude towards the civil servants he worked with. Tolley referred to the ruling of the High Court in the 2021 case concerning the behaviour of Priti Patel towards civil servants, in which it was provided that harassment and bullying through intimidating and insulting behaviour were not consistent with the Ministerial Code. In his resignation letter, Raab said that Tolley’s findings were “flawed and set a dangerous precedent for the conduct of good government … it will encourage spurious complaints against ministers.”
The lawsuit between Dominion Voting Systems and Fox News was settled before trial with a $786.5m pay-out. The voting machines company alleged that Fox news presenters knowingly made false claims that it had rigged the 2020 presidential election result for Biden, while the news corporation framed their defence as a protection of free speech. To win at trial, Dominion’s claims faced a high bar: they would have had to prove that Fox’s statements were made in ‘actual malice,’ meaning either the corporation knowingly made the false statements or acted with reckless disregard for their falsity. Documents released to the public revealed the commercial pressures on executives and presenters to appeal to pro-Trump viewers. Commentators suggest Fox owner Rupert Murdoch wanted to avoid cross-examination of himself and his news stars at trial. The news company still faces a similar lawsuit from voting technology company, Smartmatic, which released a statement claiming that “Fox needed a villain. Without any true villain, defendants invented one.”
The NHS faced further strike action this week, with 47,000 junior doctors participating in a four-day walkout. The Health Secretary, Steve Barclay, has said the British Medical Association’s (BMA) demand for a pay restoration to 2008 levels is ‘unreasonable’. Negotiations have stalled over the effective 35% pay rise demand. Meanwhile, on Friday the Royal College of Nursing (RCN) announced a new 48-hour strike set to take place 30 May. The announcement of fresh strikes and continued discontent amongst junior doctors has fuelled speculation about the possibility of synchronised action between the BMA and RCN. While there are currently no plans for coordinated strikes, the BMA has refused to rule out the possibility of a concerted effort between the unions. Relatedly, the strike ballot for consultant doctors has been delayed until the 15 May.
On Saturday, violence erupted in Khartoum, the capital city of Sudan. The country has become increasingly unstable since President Omar al-Bashir was overthrown in 2019 and a coup in 2021 which replaced a fragile military-civilian government with exclusive military rule. This most recent violence is part of a long-standing rivalry between the head of the country’s armed forces, Gen Abdel Fattah al-Burhan, and leader of the Rapid Support Forces (RSF), Gen Mohamad Hamdan Dagalo. The clashes have extended across the country and at least 56 civilians have been killed and a further 595 wounded. The World Food Programme announced three of its employees have been killed in the clashes, causing the organisation to suspend operations in the region.
On the five year anniversary of the Windrush scandal, the Black Equity Organisation announced that they are seeking judicial review over Suella Braverman for breach of the government’s Equality Act 2010 obligations. This challenges her decision to disregard key reform recommendations that were made as part of Wendy Williams’ Windrush Lessons Learned Review, 2020 which the Home Office had originally promised to implement. Over 50,000 people had signed a petition urging Suella Braverman to re-think her decision to drop key recommendations of the review, but as it stands, her decision is not to hold reconciliation events or to review and extend the powers of the independent chief inspector of borders and immigration. Whether this will be held “unlawful” under the Equality Act, as the Black Equity Organisation have suggested, remains to be seen.
The Illegal Migration Bill has drawn a wide range of criticism this week, including from the UN High Commissioner for Refugees (UNHCR), the Council of Europe and the Weiner Holocaust Library, after MPs rejected all proposed amendments during a five-hour debate last Monday. The UNHRC told the Joint Committee on Human Rights that the Bill risks causing a ‘domino effect’ on the international refugee system during a series of damning evidence hearings on Wednesday – the same day the Council of Europe’s group of experts on action against trafficking in human beings (Greta) expressed their concern that the Bill does not comply with the Convention on Action Against Trafficking in Human Beings. The Weiner Holocaust Library, along with the Association of Jewish Refugees, have issued a joint statement condemning the Bill and the use of language by ministers, such as ‘invasion’, when referring to the arrival of small boats. More broadly, over 60 NGO’s, MPs and academics have now written to the PM urging him to withdraw the Bill, citing the various violations of international law, in the same week that Sunak defended the potential use of force against children to enforce detention and deportation.
This is not a post about the conflict between the provisions of the Illegal Migration Bill and the European Convention on Human Rights (an issue which has already attracted a considerable amount of critical academic commentary – see here and here). Instead, it is a post about the Bill’s potential conflict with the EU Charter of Fundamental Rights (‘CFR’) and the UK’s commitments under the EU-UK Withdrawal Agreement, whether (and why) such a conflict matters in domestic law and how (if at all) that conflict could be resolved.
This might appear to be a quixotic line of discussion. We have been told, after all, that Brexit is done and that the CFR has been excised from the UK’s domestic legal systems (section 5(4) of the European Union (Withdrawal) Act 2018) and that other aspects of EU rights and equality law can be overwritten at will by Westminster. But, as we explore, this is not necessarily the case. Article 2 of the Northern Ireland Protocol (or Windsor Framework under the recent rebrand), the measure’s rights and equality provision, moreover, has important implications for legislative developments that the UK is seeking to pursue on a UK-wide basis.
Wild Camping on Dartmoor Photo: John Ryan/Alamy originally published in the Guardian 13 January 2023.
“The principal issue in this case is whether section 10(1) of the Dartmoor Commons Act 1985 (“the 1985 Act”) confers on the public a right not only to walk or ride a horse on the commons but also to camp there overnight.”
That Friday the 13th was indeed unlucky for the wild camping community, if not wider society. For with the handing down of that judgment, the last remaining rights to wild camp without the permission of the landowner in England and Wales were extinguished.
This case, therefore, represents more than just a landowner seeking to prevent campers using their land without permission. Rather it is a further step in the seemingly inexorable privatisation of the English Countryside for the benefit of the few, to the detriment to the many, and with the full-throated support of the law.
In considering this unfortunate development, I will first set out the background to thecase, then examine the reasoning underpinning the judgment. I will then situate this case in the wider context of public access to the countryside, and ask whether and how this public good can be reconciled with the private property rights of landowners in England and Wales.
On Wednesday, Boris Johnson gave oral evidence to the Privileges Committee as part of an ongoing inquiry into whether the ex-Prime Minister misled Parliament over lockdown parties in No 10. If the Commons was misled, the Committee will determine whether that constituted a contempt of Parliament – a finding which could result in Mr Johnson’s suspension from the Commons. In his evidence, Mr Johnson accepted he mislead MPs, but that he had not done so “intentionally or recklessly”. He claimed his statements were based upon honest belief, and were made in ‘good faith’ and in reliance on ‘trusted advisers’. The outcome of the inquiry will largely rest on whether Mr Johnson inadvertently, deliberately, or recklessly mislead Parliament – with the most severe sanctions arising if he is found to have deliberately made false statements to MPs. The committee’s report is expected later in the year.
Baroness Casey’s final report on the standards of behaviour and internal culture of the Metropolitan Police Service was published this week. The review was commissioned following the death of Sarah Everard at the hands of a serving Met officer. The report describes a culture in the Met of ‘defensiveness and denial’, which lacks integrity, fails to take complainants seriously and has discrimination ‘baked into it’. In Baroness Casey’s own words: ‘we have found institutional racism, misogyny and homophobia in the Met’. This report, alongside tragic events like Ms Everard’s death and the recent conviction of long-serving Met officer David Carrick, highlight a loss of public confidence in the police force.
In France on Thursday, protesters gathered across the country to demonstrate their opposition to President Macron’s pension reform bill, which proposes raising the age of retirement from 62 to 64. The protests began in January, but escalated this week when President Macron forced the proposed bill through parliament without a vote in the National Assembly. It is estimated that approximately one million people took part in the demonstrations. In Bordeaux, the front door of the city’s town hall was set on fire and police have been accused of using excessive force against protesters. Before the bill becomes legislation, it must pass a review by the Constitutional Council.
In Episode 181 Jim Duffy discuss small boats and some big, constitutional changes on the horizon, with Prof Jim Murdoch, Shameem Ahmad and Angus McCullough KC
After being placed briefly on ice, the Bill of Rights Bill is now described by Justice Secretary Dominic Raab as ‘ready to go’. The Bill would repeal and replace the Human Rights Act 1998 with what Angus McCullough KC describes as a “hotch-potch of measures” designed to secure a “conscious uncoupling” with the Strasbourg Court.
Joining Angus and me on the latest episode of Law Pod UK are Shameem Ahmed – the new CEO of the Public Law Project – and Jim Murdoch, Professor of Public Law at the University of Glasgow and long-time Council of Europe expert on human rights law and practice.
We examine the key features of the Bill, place it in a wider European and international legal context, and discuss the direction of travel for human rights law in the UK in the wake of the Illegal Migration Bill.
And finally!
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