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Episode 143 features Isabel McArdle and Sarabjit Singh QC of 1 Crown Office Row. Isabel practises in indirect tax, healthcare law, personal injury and public law. Sarabjit (“Sab”) specialises in tax, with a particular emphasis on all forms of indirect tax and the interface between tax and public law. They have both given seminars on the implications of Brexit for tax lawyers. In this episode, Rosalind English discusses with Sab and Isabel a number of laws containing Henry VIII powers, including the Childcare Act 2016, Section 8 of the European Union Withdrawal Act 2018, Section 31 of the EU Future Relationship Act 2020, the Coronavirus Act 2020 and Section 51 of the Taxation (Cross-Border Trade) Act 2018. Emma-Louise Fenelon did of course explore this subject in depth with the Public Law Project and Lord Anderson of Ipswich QC in Episode 129: Brexit and the Flaws of Delegated Legislation ; this episode takes this important subject further.
Henry VIII powers enable a minister to amend primary law by secondary legislation, effectively bypassing parliament. They also touch on the popularity of so-called “skeleton bills”. These bills are favoured by those in power because they have no policy in them so there’s nothing to scrutinise by both Houses of Parliament. And Henry VIII clauses are what feed these bills.
Following Brexit, everything from financial services, immigration from Europe, fisheries, agriculture – can all be achieved under Henry VIII in skeleton bills. The concern, from a constitutional perspective, is that there’s a lack of parliamentary scrutiny. They give huge power to ministers to amend and repeal Acts of Parliament.
We have to apologise for the building works sound effects in the background of this episode. We welcome our listeners to perceive them as an appropriate metaphor for the government hammering home their policies under these Henry VIII powers.
Informed consent to medical treatment is at the heart of the vaccine debate. Consent is also at the centre of most of the cases that come before the Court of Protection. So now we have a very specific problem: what happens, if someone lacks capacity under the Mental Capacity Act, and their family for whatever reason objects to the Covid vaccine?
In the latest episode of Law Pod UK, Rosalind English talks to Amelia Walker of 1 Crown Office Row about three recent cases that came before the COP where the “protected person” (incapacitous under the Mental Capacity Act) was due to be vaccinated, but family members objected. Here are the citations to the cases discussed and the relevant statutes:
E (by her Accredited Legal Representative, Keith Clarke), Applicant v London Borough of Hammersmith and Fulham (Respondent) and W (2nd Respondent) [2021] EWCOP 7
SD (Applicant) v Royal Borough of Kensington and Chelsea (Respondent) [2021] EWCOP 14
NHS Tameside & Glossop CCG v CR (by his litigation friend CW) [2021] EWCOP 19
In her latest episode of 2903cb, Professor Catherine Barnard looks back on the past 100+ days since the UK withdrew from the EU. The dire forecasts of chaos at our borders have not been realised, and the doomsayers of Brexit have probably got it wrong. The Covid effect has obviously been dramatic. The economy is likely to bounce back post Covid, but we don’t know how the effects of Brexit will play out for the fishing industry, and other major areas of the UK economy. On the other hand the “vaccine wars” with the EU, and the relatively slow rollout of vaccinations in the bloc compared with Britain’s swift action in getting its population protected against Covid-19, have not reflected well on the EU.
Following International Women’s Day and Women’s History Month, Emma-Louise Fenelon spoke to Harriet Wistrich, founder of the Centre for Women’s Justice about the many ways in which the UK criminal justice system is failing women.
In Episode 138 Emma-Louise Fenelon speaks to Marina Wheeler QC about the burgeoning field of mediation, and outlines a number of useful tips for practitioners from her own experience as a mediator.
As clinical negligence practitioners will know, in 2016 NHS Resolution became one of the first indemnifiers in the UK to establish a mediation panel with the focus of resolving clinical negligence and personal injury compensation claims. The episode refers to the report evaluating this work so far, available here.
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.
The last 12 months have provided fertile ground for many significant judgments concerning inquest law. In Episode 136, Emma-Louise Fenelon speaks to Rachel Marcus and Jim Duffy about the developments practitioners will need to know about.
Máiréad Enright is a Leverhulme Research Fellow and Reader in Feminist Legal Studies at Birmingham Law School. Her current work is on reproductive rights, activist legal consciousness and historical reproductive injustice. She tweets @maireadenright.
See a blog post she authored on the Oxford Human Rights Hub on the Mother and Baby Homes Commission report here.
For more on the work published by Dr Maeve O’Rourke, see here
Latest news: We recorded the interview before it was announced that Northern Ireland would be carrying out their own investigation into Mother and Baby homes (announced on Tuesday 26 January)
Whilst many of us would prefer not to dwell on 2020, it was a year that produced many interesting decisions. In Episode 134, Michael Spencer and Jon Metzer talk to Emma-Louise Fenelon about the cases they consider to be 2020’s most significant landmarks.
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.
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.
In her judgment of 27th February 2020 Hilder J laid down certain rules regarding what a property and affairs deputy can and cannot do in relation to seeking legal advice and taking steps in litigation. In these joined cases the deputies applied to the COP seeking orders for authorised expenditure of the protected persons’ estate for their costs in obtaining legal advice and conducting proceedings on P’s behalf.
The Senior Judge’s conclusions are set out in her summary at the end of the judgment. In Episode 131 of Law Pod UK Amelia Walker of 1 Crown Office Row discusses some of the salient issues in this comprehensive “one stop shop” ruling with Rosalind English.
Artificial intelligence (AI) aims to mimic human cognitive functions. It is bringing a paradigm shift to healthcare, powered by increasing availability of healthcare data and rapid progress of analytics techniques. Robert Kellar QC of 1 Crown Office Row joins Rosalind English in the latest episode of Law Pod UK to answer some pertinent questions about the application of AI in healthcare and what it means for clinical negligence and other forms of litigation and regulation in medicine.
Will we come to a point when healthcare providers will be under a duty of care to use Artificial Intelligence? At some point the argument is likely to be raised that the advantages of AI are so stark that it would be illogical or irresponsible not to use it. What would this mean for the Bolam test? And for the courts – a judge hearing a clinical negligence case where the issues turn on algorithms may need to be more familiar with computer programming than with medical practice.
Hear these and more fascinating and not too far fetched points in discussion in Episode 130.
The Public Law Project is an independent national charity carrying out research, policy work, training and legal case work to promote the rule of law, improve decision making and facilitate access to justice. The PLP takes no position on the UK’s decision to leave the EU.
Joe is Research Director at the PLP. He is also Senior Lecturer in Public Law at the University of York. He researches widely on public law, and particularly the administrative justice system and his work has been published in leading journals and cited by a variety of bodies, including the Ministry of Justice, the All Party Parliamentary Group on the Rule of Law, and the House of Commons Library. His work, with Professor Robert Thomas, on administrative review will also form the basis of a Law Commission project.
Alexandra is a Research Fellow at the Public Law Project and a PhD student at the London School of Economics Faculty of Law. She has worked as a judges’ clerk at the New Zealand High Court and as a barrister in Auckland, New Zealand. She was awarded the Cleary Memorial Prize by the New Zealand Law Foundation in 2015 for showing outstanding promise in the legal profession.
David Anderson will be well known to listeners. He is a barrister at Brick Court Chambers and a Cross Bench Peer. Following him on twitter @bricksilk is highly recommended to anyone with an interest in public law.
For those interested in public law more generally, signing up to the Public Law Project mailing list is also worthwhile.
In Episode 128 Emma-Louise Fenelon talks to Marina Wheeler QC about the Independent Medicines and Medical Devices Safety Review, better known as the Cumberlege Review, which investigated the response of England’s healthcare system to patients’ reports of harm from drugs and medical devices.
Since the report was published in July (available here), the National Institute for Health and Care Excellence has indicated it will be taking a number of steps in response to the review (more information here). In recent weeks a number of questions were tabled asking what the government plans to do next in response.
The episode includes a discussion about consent, and reference to Montgomery v Lanarkshire Health Board[2015] UKSC 11
Find an article written by Marina Wheeler QC and Amelia Walker on the Cumberlege Review on page 5 of Issue 6 of the 1COR Quarterly Medical Law Review (QMLR).
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