Legislation

Rwanda rethink

The Safety of Rwanda (Asylum and Immigration) Bill completed its passage through the House of Commons last week. MPs voted to approve the Bill, which overrides the factual objections of the Supreme Court, by 320 votes to 276 at its third reading stage. Eleven Conservative MPs rebelled and voted against the Bill, saying it did not go far enough, including former Home Secretary Suella Braverman and former immigration minister Robert Jenrick. It will have its second reading in the House of Lords on 29 January, where it is expected to face a number of objections.

For more on this, see Electronic Immigration Network (EIN): Rwanda bill voted through Commons and heads to Lords as International Agreements Committee says UK-Rwanda treaty not ready to be ratified

The BBC reports that the Prime Minister, Rishi Sunak has urged the Lords to back the Bill. However, the Upper House has already defied him to the extent of refusing to ratify the UK’s new Treaty with Rwanda, upon which the Bill is predicated:

The Lords backed a motion saying the treaty should wait until the government is able to prove Rwanda is safe. The motion was proposed by a Labour former Attorney General, Lord Goldsmith, on behalf of the cross-party International Agreements Committee which last week published a report noting that protections promised by the Rwanda Treaty have not yet been introduced. See Scrutiny of international agreements: UK– Rwanda Agreement on an Asylum Partnership (HL Paper 43)

Moreover, what looked like a promise by the government to assign an extra 150 judges to the Upper Tribunal to deal with fast-tracked appeals that might otherwise impede the operation of the Bill once enacted, in an effort to assuage the anxieties of the Bill’s opponents, was swiftly countered by the Lady Chief Justice, Baroness Carr of Walton-on-the-Hill, speaking to the Commons Justice Committee last week:

“…to be absolutely clear, matters of deployment of judges, the allocation of work for judges and the use of courtrooms is a matter for the judiciary and more exclusively a matter for myself and the Senior President of the Tribunals and it’s really important, chair, that people understand that division.”

Meanwhile the Joint Committee on Human Rights has been taking evidence from legal experts about whether the Bill complies with the UK’s human rights obligations.

But the government seems to think this may not matter, at least as far as interim measures by the Strasbourg court are concerned, as a recent post by Kanstantsin Dzehtsiarou, Professor in Human Rights Law, University of Liverpool explains on the Electronic Immigration Network blog: What is rule 39? UK government tells civil servants to ignore European court of human rights on Rwanda deportations

Data, copyright and AI

Government response to Culture Committee report on AI

The UK government’s response to the House of Lords Culture, Media and Sport Committee’s report on AI and the creative industries confirms its position on striking a balance between encouraging AI innovation and protecting copyright works, according to Gill Dennis, an expert in IP law at Pinsent Masons.

“Previously, government proposals to amend legislation enabling greater use of copyright works to train AI were met with backlash from the creative sector. However, the latest government response ‘makes it clear that its current approach on this issue will fully respect the rights of content creators, despite the development of AI technologies remaining a priority’.”

The post notes that publication of a Code of Practice was originally due in the summer of 2023, before being pushed back to autumn 2023. However, it has now been moved to early 2024, with Dennis adding:

“This reflects the difficulty of achieving a consensus on use of copyright works as AI training data between stakeholders with directly opposing interests on this issue”.

ICO consultation

The Information Commissioner’s Office has launched a consultation series on generative AI, examining how aspects of data protection law should apply to the development and use of the technology.

The first consultation examines when it is lawful to train generative AI models on personal data scraped from the web. Questions include:

  • what is the appropriate lawful basis for training generative AI models?
  • how does the purpose limitation principle play out in the context of generative AI development and deployment?
  • what are the expectations around complying with the accuracy principle?
  • what are the expectations in terms of complying with data subject rights?

The ICO is the UK’s independent regulator for data protection and information rights law. It seeks views from a range of stakeholders, including developers and users of generative AI, legal advisors and consultants working in this area, civil society groups and other public bodies with an interest in generative AI. The consultation closes on 1 March 2024.

ICO: Generative AI first call for evidence: The lawful basis for web scraping to train generative AI models

Out-Law, ICO’s generative AI guide underlines data-scraping compliance risks

European Data Act

The EU has also proposed a Regulatory framework on artificial intelligence. Last week the European Data Act came into force, putting in place new rules for a fair and innovative data economy. The new rules define the rights to access and use data generated in the EU across all economic sectors and will make it easier to share data, in particular industrial data, according to the European Commission.

“The Data Act will ensure fairness in the digital environment by clarifying who can create value from data and under which conditions. It will also stimulate a competitive and innovative data market by unlocking industrial data, and by providing legal clarity as regards the use of data.”

Following its entry into force, the Data Act will become applicable in 20 months, i.e. 12 September 2025.

The Data Act complements the Data Governance Act, which became applicable in September 2023 and creates the processes and structures to facilitate data sharing by companies, individuals and the public sector. The Data Governance Act will also establish Common European data spaces to make more data available for use in the economy and society, while keeping the companies and individuals who generate the data in control.

Judgments

Best and worst

It was the best of lines, it was the worst of lines. At the end of the year, two bloggers issued roundups of the leading judgments of 2023 in respect of, respectively, their openings up and their slappings down. Both focused on the judges’ writing style, as opposed to the value of the case as a precedent.

The former is sometimes known as the “battle of the BAILII”, since it features newly published judgments on that platform. Writing as Civil Litigation Brief, barrister Gordon Exall collects the good, the bad, the ugly and the fantastical among the opening lines in a capital post capitally entitled OPENING LINES OF JUDGMENTS 2023: DRAGONS, VENUS, BOMBS, WAR AND THE BEAUTY OF NIDDERDALE (TO NAME JUST A FEW)

We read a lot of judgments at ICLR, to see if they might be worth reporting. Most of them aren’t. But most of them are also, making due allowance for context, a little on the dry side. So it’s nice to come across examples which spark a little joy, or curiosity, or at least an effort to continue reading to the second para. I enjoyed the story about the delusional donkey in the judgment of ICC Judge Prentis in Lakey v Macabuag; Re Mitt Wearables Ltd [2023] EWHC 1800 (Ch), which begins:

“1. During the conversations before Nathan Macabuag invited Benjamin Lakey to join him as a co-founder of Mitt Wearables Limited (‘Mitt’), Mr Macabuag told him a story. In its condensed form, given in cross-examination, it was of Jesus ‘riding on a donkey and everyone is sort of like applauding because they’re happy that Jesus is coming back. So this donkey is walking into town, it’s full of a crowd of people, and this donkey is thinking “Yeah, wow, all these people for me, wow”. And the moral of the story is, obviously: don’t be an ass: it’s not you; it’s what you’re carrying; it’s the idea’.”

Legal Style, a blog written by PhD student Elija Z Granet, focuses on a range of matters, and has now taken to compiling an annual roundup of what he calls “brilliant broadsides from the bench”. In The Top Fifteen Judicial Smackdowns of 2023, his prime example is Lord Leggatt, schooling in no uncertain terms an advocate who had the temerity to seek a remedy on the grounds of unjust enrichment, in Barton v Morris [2023] UKSC 3; [2023] AC 684 at [191]. His Lordship, says Granet, “vivisected this argument and then spat on its quivering remains”: what he actually said was:

“Nevertheless, there is also another broader reason why the existence of a contract precludes a claim based on the law of unjust enrichment. This is that there already exists a system of law for determining what rights and remedies contracting parties have in relation to the subject matter of their contract. It is called the law of contract….”

Some of the put-downs could, if they had appeared in the opening paragraphs, have appeared in Exall’s roundup as well. This one, for example, by Andrew Baker J in Kallakis v Kallakis [2023] EWHC 2148 (Comm) at [269]:

“Achilleas Kallakis strove for financial greatness, and for a time achieved a measure of it, but he did so using the dishonest means of a conman and forger. He was brought low by the depth of his dishonesty, acting in combination as it did with fate in the occurrence, and timing, of the global financial crisis.”

Finally, a case that did appear in both roundups, but for different reasons: Coulson LJ’s judgment in University of Exeter v Allianz Insurance plc [2023] EWCA Civ 1484 won a place both for its first paragraph in Exall’s blog, on whether, notwithstanding “unguided gut feeling”, “the loss and damage caused in 2021 by the controlled detonation of a hitherto undiscovered World War II bomb was ‘occasioned by war’ ”, and for its second paragraph in Granet’s blog, where it effected a controlled detonation of “the entire Bar and its citation practices”, pointedly praising leading counsel on both sides for having

“referred to the authorities in a measured and controlled way, and spared the court the incontinent citation of numerous vaguely relevant causation authorities, all too common in appeals of this type. We are very grateful to them.”

All too common? Oh dear, yes. If there’s one thing the judiciary prefer, above all others, its good, good, good… good citations. (And not too many of them.)

Top privacy cases

Another roundup of the year’s judgments comes from Inforrm’s Blog, where Suneet Sharma, editor of The Privacy Perspective blog, presents his selection of Top 10 Privacy and Data Protection Cases 2023.

They include the explosive findings of Fancourt J in Duke of Sussex v MGN Ltd [2023] EWHC 3217 (Ch) that phone hacking had been “habitual and widespread” at The Daily Mirror, The Sunday Mirror and The People newspapers from 1998 until 2006; and the judgment of Thornton J in FGX v Gaunt [2023] EWHC 419 (KB) in which, for the first time in this jurisdiction, a claimant won substantial damages for “image abuse” (aka “revenge porn”) in respect of the defendant’s covert recording of naked images of the claimant and their publication on a pornographic website.

Law student news

Law Student Essay Competition

ILBF law undergraduate essay competition 2023–24

The International Law Book Facility (ILBF) law undergraduate essay competition 2023–2024 has been launched. The competition is sponsored by McDermott Will & Emery, who are offering a week’s internship as part of the prize, along with publication of the winning essay. The competition is open to all undergraduates studying law at UK universities.

The topic of this year’s essay is: Should the right to protest be unfettered?

  • Max word limit: 1000.
  • Deadline for submissions: 29 February 2024 at 4pm.

For more details, and to apply, click here.

Students: how Case Genie can help you win your moot

Student involved in mooting competitions can now access online tools for free to help them find the right cases to win!

We’ve explained it all in a separate blog post. Find out more here.

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

CONTRACT — Construction — Non-assignment clause: Dassault Aviation SA v Mitsui Sumitomo Insurance Co Ltd, 12 Jan 2024 [2024] EWCA Civ 5; [2024] WLR(D) 24, CA

EVIDENCE — Witness — Examination of witnesses: Skatteforvaltningen v Solo Capital Partners LLP, 12 Jan 2024 [2024] EWHC 19 (Comm); [2024] WLR(D) 15, KBD

EXECUTION — Writ of control — Dispute: Bone v Williamson, 11 Jan 2024 [2024] EWCA Civ 4; [2024] WLR(D) 25, CA

HUMAN RIGHTS — Respect for private life — Gender identity: R (Castellucci) v Gender Recognition Panel (Castellucci v Minister for Women and Equalities), 17 Jan 2024 [2024] EWHC 54 (Admin); [2024] WLR(D) 20, DC

IMMIGRATION — Deportation order — Appeal: Geddes v Secretary of State for the Home Department, 22 Jan 2024 [2024] EWHC 66 (Admin); [2024] WLR(D) 27, KBD

PLANNING — Development — National policy statement: R (Substation Action Save East Suffolk Ltd) v Secretary of State for Business, Energy and Industrial Strategy, 17 Jan 2024 [2024] EWCA Civ 12; [2024] WLR(D) 22, CA

PRACTICE — Family proceedings — Family Court: In re K (K (Children) (Powers of the Family Court)), 11 Jan 2024 [2024] EWCA Civ 2; [2024] WLR(D) 26, CA

REVENUE — Corporation tax — Profits, computation of: Dolphin Drilling Ltd v Revenue and Customs Comrs, 11 Jan 2024 [2024] EWCA Civ 1; [2024] WLR(D) 19, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

UK Labour Law: “The Simple Things You See Are All Complicated”: thoughts on Deliveroo: R (Independent Workers Union of Great Britain) v Central Arbitration Committee [2023] UKSC 43, SC(E)

EU Relations Law: Clearing up when the Courts will depart from retained EU case law: Industrial Cleaning Equipment (Southampton) Ltd v Intelligent Cleaning Equipment Holdings Co Ltd [2023] EWCA Civ 1451; [2023] WLR(D) 511, CA

Law & Religion UK: “Sufficient interest” in faculty petitions: Re St Lawrence Toot Baldon [2023] ECC Oxf 10, Const Ct

Law & Religion UK: Canada: disclosure of personal religious records: Vabuolas v British Columbia (Information and Privacy Commissioner) 2024 BCSC 27, SC (British Columbia)

Nearly Legal: Housing and Children Act — homeless 17 year olds: R (BC) v Surrey County Council [2023] EWHC 3209 (Admin), KBD

Free Movement: High Court quashes Home Office policy of delaying release of vulnerable detainees to get a second medical opinion: R (Medical Justice) v Secretary of State for the Home Department [2024] EWHC 38 (Admin), KBD

Inforrm’s Blog: Honest opinion defence succeeds … and no serious harm: Dyson v MGN Ltd [2023] EWHC 3092 (KB), KBD

Local Government Lawyer: Accommodating asylum seekers: some recent planning law cases: R (Clarke-Holland) v Secretary of State for the Home Department [2023] EWHC 3140 (Admin); [2023] WLR(D) 520, KBD

Local Government Lawyer: Capacity in context — a paradigm case: A Local Authority v KP [2023] EWHC 3102 (Fam), Fam D

UK Human Rights Blog: Financial Sanction and Free Speech in the High Court: Phillips v Secretary of State for Foreign, Commonwealth and Development Affairs [2024] EWHC 32 (Admin); [2024] WLR(D) 13, KBD

Out-Law: Ruling confirms conditions for planning permission severability: R (Dennis) v London Borough of Southwark [2024] EWHC 57 (Admin), KBD

Oxford Human Rights Hub: A Justiciable Right to Housing? The UK Supreme Court’s Decision in R (Imam) v Croydon London Borough Council [2023] UKSC 45; [2023] 3 WLR 1178, SC(E)

Nearly Legal: The HMO that wasn’t — Rent Repayment Order appeal: Barker v Shokar [2024] UKUT 17 (LC), UT

And finally…

Post of the week

is from LinkedIn, this time, where the CEO and Co-founder of Legaltech Hub recalls the retro-futuristic world of online research in 1979.

Read the full post and comments on LinkedIn.

That’s it for this week. Thanks for reading, and thanks for all your tweets, toots, posts and threads.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

Featured image: Photo by Matt Ridley on Unsplash