Rise of the algorithms

4 November 2019 by

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.


Continue reading →

ALBA Conference 2019: A Review (Part 4)

2 November 2019 by

This post, and those that follow, summarise some of the main points of interest arising from the ALBA Conference 2019.

‘Practice and Procedure Update’ – Chair: Lord Justice Singh; Speakers: Catherine Dobson, Jo Clement, Christopher Knight

alba

Catherine Dobson: Costs in Public Interest Litigation

Sir Rupert Jackson’s 2009 review of costs in civil litigation found that reform was required in relation to judicial review. This was because it was “not in the public interest that potential claimants should be deterred from bringing properly arguable judicial review proceedings by the very considerable financial risks involved”. Whilst the government did not take up the proposal for qualified one-way costs shifting in judicial review, it did introduce a scheme for cost capping orders in judicial review. This change was the focus of Ms Dobson’s talk.


Continue reading →

Pet Shock Collar Ban (Part 2)

2 November 2019 by

Back in 2010 Catriona Murdoch wrote about the High Court’s decision that a Welsh ban on the use of collars designed to administer electric shocks to cats and dogs did not breach Article 1 of the First Protocol of the ECHR or impinge upon the free movement of goods protected under European Union Law. I followed with a comment on the status of animal welfare in EU law here.

Any pet owner living near a busy road or with less than adequate fencing will be aware of the availability of an electronic containment system which prevents animals escaping by administering a shock via a collar, a system to which they become conditioned by the warning of a radio signal as they approach the boundary. Hand-held e-collar devices are different in that the shock can be administered anywhere and at any time at the whim of the animal’s owner.


Continue reading →

Shortcomings found in Scottish police and prison establishments

30 October 2019 by

Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the CPT from 17 to 25 October 2018

The Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) recently published a report on police and prison facilities in Scotland after its visit in 2018. 

This was an ad hoc visit and it aimed to evaluate the developments made since the CPT’s last visit to Scotland in 2012. The CPT’s delegation visited five police custody facilities and five prisons across Scotland. The report covers several areas, including the treatment of detained persons in police facilities, the conditions of male prisons, inmates in segregation and those on remand. It also focused on female prisons in general, and healthcare. 

Police custody facilities

Overall, the CPT’s delegation was satisfied by the conditions and treatment in the police facilities that it visited. Every detained person that they interviewed reported that they had been correctly treated whilst in custody. However, an area of concern was the number of detainees who made allegations that they had suffered ill-treatment at the time of their arrest. Around one third of the detained persons alleged that they experienced excessively tight handcuffing and physical abuse by police officers. Several also claimed that they experienced this treatment despite not resisting arrest. The delegation reported that many of those making the allegations had visible signs of injury, such as bruises, scratches, and swelling.


Continue reading →

The Weekly Round-up: Liberalisation in Northern Ireland and a Report on the Digital Welfare State

28 October 2019 by

Photo: Jean-Marc Ferré

In the news

This has been a turbulent week for Brexit. Despite gaining approval for his adapted version of Theresa May’s deal, Boris Johnson has been unable to secure approval for his Brexit timetable, with a narrow consensus in Parliament that the deal requires longer scrutiny. Meanwhile, EU leaders have granted permission for a further extension to Article 50 until 31st January 2020, in response to the letter sent by the Prime Minister to comply with the Benn Act. Leaving on October 31st is no longer possible; Parliament is preparing for a December general election.


Continue reading →

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

26 October 2019 by

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.


Continue reading →

ALBA Conference 2019: A Review (Part 3)

24 October 2019 by

This post, and those that follow it, summarises some of the main points of interest arising from the ALBA Conference 2019.

‘The Constitutionality of Ouster Clauses’ – Chair: Lord Justice Leggatt; Speakers: Professor Alison Young, Professor David Feldman, Professor Stephen Bailey

gchq

Earlier this year, the Supreme Court gave its judgement in R (on the application of Privacy International) (Appellant) v Investigatory Powers Tribunal and others (Respondents). The case concerned the Investigatory Powers Tribunal (‘IPT’), a specialist tribunal which was established by the Regulation of Investigatory Powers Act 2000 (‘RIPA’). The IPT hears complaints about certain public bodies, particularly concerning the Security Services.

s.67(8) of RIPA contains a so-called ‘ouster clause’, which held that “determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court”.

The issue in Privacy International was whether decisions made by the IPT were judicially reviewable. A majority of the Supreme Court held that s.67(8) did not, in fact, oust the jurisdiction of the court. The panel analysed this crucial case in more detail.


Continue reading →

The Round-Up: The Heathrow Expansion and Law’s Expanding Empire

22 October 2019 by

In the News 

The debate about the proper role of judges in our democracy has taken on the shape of the political landscape in which we find ourselves: pitched between two distant poles. Lord Sumption’s Reith lectures put forward the thesis that the courts have been getting more powerful while politics has been getting less powerful; he criticises this perceived shift, holding that while ‘law has its own competing claim to legitimacy … it is no substitute for politics’. Lady Hale’s recent response rejected ‘the suggestion that judicial processes are not also democratic processes,’ proffering instead the view that the courts have been, and must go on, ‘doing their job — the job which Parliament has given them or which the common law has expected of them for centuries’. Brexit, the polarising problem which has been pushing judges into the public eye recently, seems also to have pushed them into expressing starkly opposite points of view. 

Given the vast, intricate, all-consuming issue that gave rise to the debate, it is interesting that both Lord Sumption and Lady Hale begin by centring their arguments on an acutely intimate issue. Lord Sumption singles out the case of Charlie Gard as an example of ‘law’s expanding empire’. He argues that the High Court’s intervention into the baby’s treatment illustrates an increasing tendency of the law to limit individual autonomy, even in cases where the exercise of that autonomy does no harm to others, and there is no consensus as to its morality. After making it clear that she will not be addressing the Supreme Court’s recent decision on the prorogation of Parliament, Lady Hale tackles this argument at once. Citing the decision of the High Court in the case of Tafida Raqeeb earlier this month, she argues that far from judicial over-reach, these cases simply illustrate the courts doing their job well: ‘resolving disputes according to clear legal standards in the light of all the available evidence’. The distinction between the cases of Charlie Gard, Alfie Evans and Isaiah Haastrup, in which doctors were allowed to withdraw life support, and Tafida’s case, in which her parents were permitted to transfer the child to Italy for treatment, was that the evidence as to her prognosis, awareness and pain level was less clear cut. Mr Justice MacDonald acknowledged that the decision as to her medical best interests was made on ‘a fine balance’. 


Continue reading →

Interested in this online course?

21 October 2019 by

Cambridge University Institute of Continuing Education

Law in a changing genetic landscape (25 February – 12 April 2020)

Law creates artificial relationships between non-related people and entities. It even gives person-hood to non-biological beings such as companies and partnerships (although not yet to non-human species). Genetics describe the underlying relationship of all biological beings. For centuries, law and genetic science developed in parallel with very little overlap. But as genetic discoveries ride the crest of the technological revolution, law finds itself on the back foot. Legal instruments, such as property law and the law of obligations between non-related individuals were crafted in feudal times with the aim of protecting property beyond the death of the owner. With genetic discoveries, we face a myriad of questions, from ownership of gene editing techniques to the dangers of discrimination based on genetic predisposition for disease.

Read full course description here

Related posts:

Whistleblowing judges: protected by human rights?

18 October 2019 by

Gilham (Appellant) v Ministry of Justice (Respondent) [2019] UKSC 44 – read judgment

The UK Supreme Court has unanimously granted an appeal by a district judge against the Court of Appeal’s decision that she did not qualify as a “worker” under the Employment Rights Act 1996 (the “1996 Act”), and therefore could not benefit from the whistleblowing protections it conferred.

In reaching its judgment, the Court held that the failure to extend those whistleblowing protections to judges amounted to a violation of the appellant’s right under Article 14 ECHR not to be discriminated against in her enjoyment of the Convention rights (in this case, her right to freedom of expression under Article 10 ECHR).


Continue reading →

ALBA Conference 2019: A Review (Part 2)

15 October 2019 by

This post, and those that follow, summarise some of the main points of interest arising from the ALBA Conference 2019.

Article 14 ECHR discrimination challenges to social welfare measures: the second benefit cap case in the Supreme Court: Raj Desai

Jobcentre-007
Credit: The Guardian

Introduction: The ‘Benefit Cap’

Mr Desai examined Article 14 ECHR through the prism of two ‘benefit cap’ cases: R (on the application of DS and others) (Appellants) v Secretary of State for Work and Pensions (Respondent) [2019] UKSC 21 (“DA & DS”) and R(SG and ors) v Secretary of State for Work and Pensions [2015] UKSC 16 (“SG”).

Both were decisions of the Supreme Court concerning the benefit cap. This provides that a household’s total entitlement to welfare benefits cannot exceed an annual limit. The cap is disapplied if a certain amount of relevant work is completed.

In common with many Article 14 ECHR claims, both cases raise complex issues about the proper constitutional role of the courts. SG (the first benefit cap case)


Continue reading →

Round Up 14.10.19 – Diplomatic Immunity, Brexit and Immigration

14 October 2019 by

dunn.jpg

Harry Dunn’s family after meeting with the foreign secretary, Dominic Raab, last week. Photograph: Credit: The Guardian, Peter Summers/Getty Images.

The usually obscure concept of diplomatic immunity came to the fore this week after it emerged that the wife of an American diplomat was wanted for questioning in connection with the death of a motorcyclist in Northamptonshire. Anne Sacoolas was spoken to by police after a collision with Harry Dunn in which he was killed whilst riding his motorbike, prior to her return to the United States.

Article 31 of the 1961 Vienna Convention grants immunity from the criminal jurisdiction of the receiving state to diplomats, a feature extended to their family members by article 37. However, both the United Kingdom and the United States were this weekend reported as having agreed that diplomatic immunity was no longer “pertinent” in the case of Mrs Sacoolas. This raised the possibility of the UK seeking her extradition, despite President Trump being photographed this week with a briefing card stating that she would not be returning to Britain.

Meanwhile, the country’s attention turned back towards Brexit, with the week ahead promising to, in the Prime Minister’s words, be “do or die” for the prospects of a negotiated deal. At the beginning of the week it was widely reported that talks had faltered, with Downing St leaks suggesting a deal was “essentially impossible”. However, the mood surrounding negotiations changed significantly on Thursday, with Taoiseach Leo Varadkar describing the emergence of a “pathway” to a deal following his meeting with Boris Johnson.
Continue reading →

Holocaust denial in a parliamentary speech: criminal conviction not a breach of Article 10

11 October 2019 by

Pastörs -v- Germany (Case no. 55225/14))

On 3 October 2019 the European Court of Human Rights dismissed an application by former NDP leader Udo Pastörs that his criminal conviction in Germany for making a “qualified Auschwitz denial” in a parliamentary speech infringed his right to freedom of speech under Article 10 ECHR. The Court held that, although interferences over statements made in parliament must be closely scrutinised, they deserve little, if any, protection if their content is at odds with the democratic values of the ECHR system.

Previous Holocaust denial cases before the European Court have arisen from statements made in various media, including a book (Garaudy -v- France (dec.), no. 65831/01, 24 June 2003), a TV show (Williamson -v- Germany, no. 64496/17, 8 January 2019) and even as part of a comedy routine (M’Bala M’Bala -v- France, no. 25239/13, 20 October 2015). This time the Court was called upon to consider statements made in a parliamentary context. The case involves ultra-right wing nationalist politics, parliamentary immunity from prosecution, the parliament’s ability to self-regulate that immunity, and the courts as final arbiters of such disputes. Although the statements concerned were made back in 2010, 9 years later the case still feels very topical.


Continue reading →

High Court rules that equalising pension ages did not prejudice women

9 October 2019 by

Delve & Anor, R (On the Application of) v The Secretary of State for Work and Pensions [2019] EWHC 2552 (Admin)read judgment

In a judgment handed down on 3rd October, the High Court has ruled that successive statutes between 1995 and 2014, which legislated to equalise the state pension age between men and women were not discriminatory. The High Court also determined that it was not a matter for the courts to conclude whether the steps taken to inform those affected by the changes in the state pension age for women were inadequate or unreasonable.

Background

The origins of this claim rest in the Old Age and Widows’ Pension Act 1940, where the state pension age for women was lowered from 65 to 60 in response to a campaign by unmarried women in the 1930s. The policy created a relative disadvantage to men, justified by the social conditions at the time.

The Pensions Act 1995 was enacted to equalise the age discrepancy and the methodology followed in subsequent legislation was to stagger the advancement of the pension age by reference to age cohorts. The first change to women’s state pension age contained in the 1995 Act would take effect in 2010, 15 years later.


Continue reading →

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: