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The Inner House of the Court of Session has ruled that Serco Limited acted lawfully when evicting a failed asylum seeker from temporary accommodation in Glasgow without first obtaining a court order. This is the same conclusion that was drawn by the Outer House of the Court of Session in April. Daniel McKaveney has posted on the main points in this judgement here.
Whilst each judgment reached the same end result, one striking difference between the two is the reasoning that the Lord Ordinary and the Lord Justice Clerk deployed to answer the question of whether Serco should be classified as a “public authority” under section 6 of the Human Rights Act 1998 (“the HRA 1998”).
The persuasiveness and significance of each courts’ reasoning will be considered below.
Middle Temple’s exhibition celebrates the centenary of the admission of women to the legal profession. We were lucky enough to be guided around this fantastic exhibition by the curator, Rosalind Wright CB QC. Listen to Rosalind discuss the first 100 years of women in law with Rosalind English in the latest episode of Law Pod UK here.
The exhibition consists of 25 portraits of women Middle Templars over the last 100 years, including Helen Normanton, the first woman to become a member of an Inn. It is accompanied by a digital exhibition of many more of our distinguished women members. The exhibition curated by Rosalind Wright CB QC, a Bencher of Middle Temple with specially commissioned photography by Chris Christodoulou. The portraits are exhibited in order of Call to the Bar.
Visit the exhibition, and listen along, to see the women past, present and future who have changed the legal landscape at Middle Temple here.
With an election on
the horizon, a coalition of 29 women and human rights organisation has published
a manifesto for women and girls. Their stated goals are to “end violence
against women and girls”; “secure women’s equal representation in politics”; “promote
equality in the workplace and in the home”; “invest in public services”; and “lift
women and children out of poverty”. To
achieve these goals, they propose measures including a new ‘Violence Against
Women and Girls’ bill to lay before Parliament; funding for high-quality sex
and relationships education; improvements to the criminal justice system
regarding allegations of rape and sexual assault; equal pay; increased maternity
pay and maternity allowances; an end to pregnancy discrimination; and a strengthening
of the law on sexual harassment at work, creating a duty on employers to
prevent harassment from occurring. The manifesto is available here.
The backlash
against internet intermediaries and ‘surveillance capitalism’ continues this
week. Amnesty International have released a report entitled ‘Surveillance Giants’,
which analyses in detail the human rights threats posed by Facebook, Google,
and other technology corporations. The report is available here. Meanwhile,
in the courts, Singh LJ granted Ed Bridges permission to appeal the facial
recognition judicial review which he lost in September, noting that Mr Bridges’
appeal had a reasonable prospect of success.
Middle Temple’s exhibition celebrates the centenary of the admission of women to the legal profession. It consists of 25 portraits of women Middle Templars over the last 100 years, including Helen Normanton, the first woman to become a member of an Inn. It is accompanied by a digital exhibition of many more of our distinguished women members. The exhibition curated by Rosalind Wright CB QC, a Bencher of Middle Temple with specially commissioned photography by Chris Christodoulou. The portraits are exhibited in order of Call to the Bar.
In an appeal brought by the former joint administrators of Rangers Football Club, the Inner House of the Court of Session ruled that the Lord Advocate does not have absolute immunity from suit for malicious prosecution. It marks a significant change in an area of the law that has remained largely untouched for almost sixty years.
Background
The serious financial troubles and subsequent winding up and sale of Rangers Football Club is well documented.
The two pursuers in this case were appointed as the joint administrators of Rangers when the club entered administration in 2012. They reported to the police that the acquisition of Rangers may have involved illegal financial assistance. The police then investigated the acquisition and financial management of Rangers. Whitehouse and Clark ceased to be the administrators later in 2012 when the club entered liquidation after an agreement with the club’s creditors couldn’t be reached. New joint liquidators were then appointed.
In November 2014, the pursuers were detained by Police Scotland on suspicion of being involved in a “fraudulent scheme and attempt to pervert the course of justice”. It was alleged that Craig Whyte, who became the club’s majority shareholder in 2011, had fraudulently bought the club and forced it into administration, which had financially benefitted the pursuers. Over the next year, there were a series of hearings and court proceedings. The pursuers were detained once again and re-arrested and charged with similar offences. They were then charged on a separate occasion with “conspiracy to defraud and attempting to pervert the course of justice”. They objected to the relevancy of these charges.
Whitehouse and Clark aver that they were then told by the Crown in June 2016 that all proceeding against them were finished, and they have not been charged with any offences since.
In the latest Henry Brooke Lecture (12th November, hosted by BAILII and Freshfields Bruckhaus Deringer), Supreme Court Justice Lord Sales warned that the growing role of algorithms and artificial intelligence in decision making poses significant legal problems.
He cited as an example a recent case in Singapore. The judge had to decide on mistake in contract – except that the two contracting parties were both algorithms. In that instance the judge was able to identify the human agents behind the programmes, but that will soon not be the case.
R (on the application of) Friends of Antique Cultural Treasures Ltd v Department for the Environment, Food and Rural Affairs – read judgment
“We believe that the legal market presents opportunities for criminals to launder recently poached ivory as old ivory products.” (Defra’s statement in consultation in introducing the Ivory Bill)
The Ivory Act 2018, which received Royal Assent in December 2018, proposes to prohibit ivory dealing with very limited exceptions. This includes antique items made with ivory. According to the Government, the Act contains “one of the world’s toughest bans on ivory sales”. No date has yet been fixed for it to become law.
The purpose of the Act is to enhance the protection of African and Asian elephants in the face of ongoing threats to their survival. It does so by prohibiting the sale, as opposed to the retention, of all ivory (that is, anything made out of or containing ivory), subject to a very limited and tightly defined exemptions. These prohibitions are backed by criminal and civil sanctions.
The claimant company represented UK dealers in antique worked ivory such as Chinese fans, walking canes with sculpted ivory tops and furniture with ivory inlay. The appeal of these items is not confined to Sinologist antiquarians. Netsuke, smaller carved ornaments worn as part of Japanese traditional dress, are an example. Even for the non connoisseur, Edmund de Waal’s novel The Hare with the Amber Eyes is a celebration of the significance and aura that these ornaments bestow on their owners, not just for the carving, but for the material of which they are made. Religious, hierarchical, magical, and even medicinal.
J.D. and A v the United Kingdom (nos. 32949/17 and 34614/17) – read judgment
Much may have changed in the political world since the Coalition Government introduced its controversial ‘bedroom tax’, but the legal fall-out from the policy continues. The European Court of Human Rights has delivered its verdict on the compatibility of the scheme with the prohibition on discrimination set out in Article 14 of the European Convention on Human Rights. The Strasbourg Court has found that the policy discriminated unlawfully against women at risk of domestic violence.
Background
As is well known, in 2012 the United Kingdom government introduced new regulations with the effect that those in social housing with an ‘extra’ bedroom had their housing benefit reduced: the so-called ‘bedroom tax’. The purported aim of the policy was to save money and to incentivise those with an ‘extra’ bedroom to either move property or take in a lodger thereby resulting in a saving of public funds.
It is not difficult to imagine why someone might have an extra bedroom but have strong reasons (related to disability or gender) for not moving house. The Government sought to make provision for such cases through a discretionary scheme operated by local authorities but funded by central government.
An Extinction Rebellion protester is removed by police in central London. Credit: The Guardian.
As the general election campaign accelerated this week, the political fall out from the publication of the Grenfell Tower Inquiry contributed to some awkward headlines for both politicians and lawmakers. However, this was by no means the only legal news of the week…
The case turned on the lawfulness of the exercise of powers by the police under section 14(1) of the Public Order Act 1986 to ban XR’s protests earlier this month.
The court ruled that in exercising section 14 powers, the police were required to identify a location to be covered by the powers conferred by the Act. Separate gatherings, separated both in time and by many miles, even if co-ordinated under the umbrella of one body, were not held to be one public assembly within the meaning of section 14(1). Consequently, the decision of the police to impose the condition across a wide area of London for several days was unlawful, being outwith the powers conferred by section 14(1).
The Children Act 1989 (CA 1989) received Royal Assent on 23
November 1989 (30 years ago); and it was in force from October 1991. It was a
major reform of children law which required everyone – parents, children (when
of ‘understanding’), judges, social workers, health professionals and lawyers –
to learn a new set of legal concepts and attitudes. But what about children’s
rights? And what has happened to the law’s regard for those rights since 1989?
The Act required courts to consider a child’s ‘wishes and
feelings’ when that child’s welfare was in issue in a court. In parallel with
this, United Nations Convention on the Rights of the Child 1989 Art 12.1 –
though not formally part of the Act – says:
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
On Wednesday last week I had the great pleasure of speaking to a fellow South African, which we post in this week’s episode of Law Pod UK. I promise there are no references to rugby in the entirety of the interview. How could we have predicted anything anyway?
Kate O’Regan is the Director of the Bonavero Institute of Human Rights at Oxford University. She is also a former judge of the South African Constitutional Court (1994 – 2009). One fellow judge has said that she is “one of the finest minds ever appointed as a judge in South Africa”.
Our discussion ranges over a multitude of topics, such as the difficulty of reconciling customary law practices with the rights of women under the Bill of Rights, and the problem of enforcing the rule of law in the townships and on public transport in a country where most people are dependent on the state owned Metrorail to get to their place of work.
This post, along with those before it, summarises some of the main points of interest arising from the ALBA Conference 2019.
‘Reith Lecture (Judicial Power) Response’ – Chair: Mrs. Justice Thornton; Speakers: Lord Dyson, Sir Stephen Laws, Prof Vernon Bogdanor, Prof Meg Russell, Lord Falconer of Thoroton QC
A prestigious panel offered its response to Lord Sumption’s Reith Lectures, followed by a reply from Lord Sumption himself.
In his lectures for the BBC, Lord Sumption argued that judges have excessively increased their power and invaded into the political sphere. The Human Rights Act 1998 and Judicial Review attracted particular criticism.
Lord Sumption’s original lectures are available from the BBC here. A recording of the full discussion is available on LawPod here, so this post draws out some of the key points.
Firefighters were let down by poor training, leadership, equipment and plans. Junior firefighters arriving at the scene were “faced with a situation for which they had not been properly prepared”.
The ‘stay put’ advice used by the London Fire Brigade was wrong, and cost lives.
The report recommends that national guidelines for evacuating high-rise flats are created. It also seeks for a programme of regular inspections of high-rise flats and lifts
The Commissioner of the London Fire Brigade, Dany Cotton, attracted particular criticism from the media. Ms Cotton had said that although she was saddened by the loss of life, there was nothing she would have done differently. Sir Martin Moore-Bick, the Chair of the Inquiry, described her as showing “remarkable insensitivity” and suggested this showed an inability to learn from the tragedy.
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 statisticalmachine 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, statisticalmachinelearning 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.
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
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.
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