Legal News

IHRAR report The IHRAR’s publication is an exceptionally comprehensive and highly impressive piece of analysis. It accepts as a fixed point the government’s commitment to remain a party to the European Convention on Human Rights ( ECHR). This includes the ability of individuals to petition the European Court of Human Rights ( ECt HR) in Strasbourg once domestic avenues of redress are exhausted. Throughout the IHRAR there is recognition that reforms restricting people’s capacity to enforce rights in the UK courts may prompt more cases going to Strasbourg, which would ‘run counter to the HRA’s original objective of bringing rights home’, rather than resolving matters within the domestic legal system. The IHRAR proposes only limited amendments to the HRA itself. They are notably restrained and incremental in nature overall. The principal ones are: a modification to the test in HRA 1998, s 2, which...

R (on the application of the FDA) v Prime Minister and Minister for the Civil Service [2021] EWHC 3279 ( Admin) What are the practical implications of this case? Lawyers often tend to believe that any dispute can be settled by judges ascertaining the facts and then applying the law. That belief is, inevitably, mistaken. Within public law there are matters that courts cannot adjudicate upon. Some are constitutionally out of bounds, for instance Parliament’s decision to pass an Act. Others are non-justiciable because they are fundamentally political, such as choices about how public money should be allocated. Yet the limits are not always sharp. A decision on whether to prorogue Parliament, and for how long, was regarded as plainly non-justiciable by the Lord Chief Justice ( Lord Burnett), the Master of the Rolls ( Sir Terence Etherton) and the President of the Queen’s Bench...

What are the practical implications of this case? As regards the substantive law, this ruling offers a clear and authoritative account of the principles to apply where an order appears, on its face, to be legally defective. In this instance, the order did not comply with a statutory provision; nevertheless, being an order of the court, it demanded obedience. Parties to, and bodies affected by, such an order can now be advised with confidence, given the certainty derived from Lord Reed’s analysis. The judgment strongly underscores the rule of law and the orderly administration of justice. A legally flawed order is not without legal effect. The court highlights the vital importance of certainty and finality, observing that the contrary stance would create administrative disorder and could expose third parties to legal liabilities. The decision is pertinent to those litigating with or against...

R (oao Sheakh) v London Borough of Lambeth [2021] EWHC 1745 ( Admin) What are the practical implications of this case? This judgment has both procedural and substantive consequences for TROs and PSED. The claimant initially moved to contest several orders; some challenges were lodged within the six-week window for a statutory review under RTRA 1984, Sch 9, while others fell outside that period. By the time the matter reached Mr Justice Kerr, there were effectively two distinct proceedings. The first, chronologically, was an application seeking permission to bring judicial review, presented as a standard judicial review permission bid. The second was a valid statutory review of other ETOs filed within time. No permission is required when a statutory review is brought under RTRA 1984, Sch 9. Although RTRA 1984, Sch 9 bars challenges to an order save through its own...

PPN outlines guidance for contracting authorities on the National Procurement Policy Statement ( NPPS), LNB News 03/06/2021 65 The Cabinet Office has issued PPN 05/21, drawing attention to core points within the NPPS. As a strand of the government’s programme to ‘transform public procurement’ in the UK, the NPPS defines national procurement priorities and the steps to realise them. PPN 05/21 takes effect for in-scope authorities from 3 June 2021. See: LNB News 03/06/2021 65. What are the main headlines from the new NPPS? The NPPS first appeared in the government’s Green Paper ‘ Transforming Public Procurement’, released at the end of 2020. In it, the government explained that the NPPS is intended to set strategic national priorities that contracting authorities must prioritise, ensuring the leverage of public procurement to advance those aims. Published alongside PPN 05/21 (which offers guidance and...

R (on the application of Good Law Project Ltd) v Minister for the Cabinet Office [2021] EWHC 1569 ( TCC) What are the practical implications of this case? The judgment is notable in confirming that reliance on PCR 2015, SI 2015/102, reg 32(2)(c) was lawful on the facts, yet did not absolve the defendant from running the procurement in a way that evidenced a fair, even-handed selection exercise. The court stressed the need to adduce proof that objective criteria underpinned the choice of contractor. Personal links between the decision-maker and the successful supplier did not, as a matter of principle, mandate recusal or preclude an objective evaluation of the award’s merits. Instead, the perceived bias stemmed from the defendant’s failure, on the evidence, to demonstrate that such an objective appraisal actually occurred. The decision will also be read for the judge’s...

‘ CV- Online Latvia’ SIA v ‘ Melons’ SIA Case C-762/19 What are the practical implications of this case? Across the EU, when a website or online database provides a search tool that automatically draws into its results information sourced from third-party databases, this will typically infringe database right. There can, however, be circumstances where the practice is lawful if it can be shown that using data from those third-party databases does not prejudice the maker’s investment—for instance, where the data is deployed in a wholly unrelated market that the maker neither foresaw nor competes in. Nonetheless, in most situations it will be necessary to obtain permission from the maker of any third-party databases employed to produce an aggregated search result. What was the background? A jobs website ( Melons) offered a search engine that queried several websites hosting job...

Original report HM Treasury issues its response to the consultation on the 2015 public service pension scheme reforms, LNB News 04/02/2021 109 What was the background to the consultation? In April 2015, the principal public service pension arrangements were overhauled with the declared aim of making them fairer, more sustainable and affordable, reflecting the 2011 Hutton Report. Change was deemed necessary as expenditure on the legacy schemes had risen over time. The government viewed the new designs as more progressive, seeking to smooth pension value across pay levels. Consequently, some lower and middle earners saw improved outcomes under the reworked schemes. A further feature was protection for those within ten years of retirement, who were excluded, wholly or in part, from the new schemes and kept in their legacy arrangements (or treated in a manner ensuring they were no worse off than if they had stayed in...

How to operate ethically Suppliers should review the Data Ethics Framework and adhere to its principles. The Framework is available here Suppliers are accountable for clearly informing people why and when their data is shared, so they can be confident it is used lawfully, fairly and in an equitable way The core principles of the Data Ethics Framework are: respect for persons respect for human rights participation accounting for decision Have a clear value proposition Suppliers must make sure the product is designed to deliver a clear outcome for users or the system To secure a clear value proposition, thoroughly research and define user needs, and involve users across the...

The complete paper is available here. An engaging seminar on the report, hosted with the Bonavero Institute of Human Rights, can also be accessed here. A proposed UK HRDD law The HRDD law could place the following duties on subjected organisations (broadly): to prevent negative human rights and environmental impacts arising from their domestic and overseas operations, including within their supply and value chains to devise and apply appropriate due diligence procedures to avert such impacts to publish a forward-looking plan for future procedures to be adopted, together with an assessment of the effectiveness of past procedures The report also proposes liability......

The objections centre on well-known long-standing concerns over data retention, access for law enforcement, and immigration policy; moreover, lawmakers went further, drawing attention to serious earlier issues with the UK’s use of the Schengen Information System ( SIS) database and to both potentially conflicting commitments under other international agreements. Under EU data protection rules, sending personal data to countries beyond the EEA is strictly lawful only where protection is judged ‘adequate’, where extra safeguards are adopted, or where one of a small set of derogations applies. At present, ongoing data flows between the EU and the UK run under an interim framework embedded in the broader EU– UK Trade and Cooperation Agreement of December 2020, which will lapse by June 2021 at the latest. The Commission must determine whether the UK, which officially departed the 27‑nation EU last year, affords...

Introduction On 31 December 2020, the Withdrawal Agreement’s transition phase (discussed here) concluded. From 1 January 2021, relations between the UK and EU are currently regulated partly by the remaining Withdrawal Agreement (as further discussed in this Twitter thread) and partly by the Trade and Cooperation Agreement ( TCA) formally agreed between the EU and the UK themselves. ( There are also two other agreed treaties, on security information and nuclear cooperation, as well). Basic legal issues The EU and UK have agreed to apply the TCA provisionally and temporarily (a common practice in international law). This arrangement runs until 28 February 2021, though the parties may change that date via the Partnership Council (composed of representatives of both contracting parties). This is intended to give the European Parliament sufficient time to examine the treaty in detail before deciding whether to give its consent. By...

Martin and another v Kogan and others [2021] EWHC 24 ( Ch) What are the practical implications of this case? The judgment represents the latest chapter in the parties’ protracted litigation. At the retrial, Mr Justice Meade applied the Court of Appeal’s formulation of joint authorship in Kogan v Martin and others [2019] EWCA Civ 1645. He likewise examined the legal framework for evaluating witness testimony, including the overall approach to the dependability of witnesses’ recollections and the comparative weight to be placed on memory as opposed to contemporaneous records. In that context, he addressed the effect of Gestmin SGPS SA v Credit Suisse ( UK) Ltd [2013] EWHC 3560 ( Comm), [2013] All ER ( D) 191 ( Nov). He further considered how the balance of the remaining evidence should be assessed where a portion of a witness’s account is rejected as untrue. In...

For data protection specialists, the EU– UK TCA brings encouraging developments. Unrestricted data movement between the EEA and the UK will carry on beyond the close of 2020 ( Article FINPROV.10A(2) also confirms flows from Iceland, Lichtenstein and Norway to the UK). That outcome is warmly welcomed. Recent studies indicated that implementing substitute transfer tools might have set UK firms back £1.6bn. Such a sum reflects funds businesses could otherwise have directed to areas like new kit, staff or procedures, yet would instead be siphoned off to compliance spend or higher prices for goods and services due to interruptions to EU– UK data transfers. Data may likewise keep moving freely for law enforcement transfers. That is essential. Maintaining the sharing of data to prevent and detect crime is vital to protecting people on both sides of the Channel. Without this...

What is the WTO government procurement agreement ( GPA)? The WTO GPA is a voluntary, plurilateral pact that obliges its parties to grant one another access to their respective government contracting and public purchasing markets on a reciprocal basis. Through its EU membership, the UK participated in the WTO GPA; the EU constitutes one of the 20 current participants. The UK has now sought independent accession to the GPA in its own right, and a further 22 jurisdictions hold observer status. Signatories are not free to design procurement systems without constraint; foundational principles are embedded within the Agreement and, indeed, many of these shaped the drafting of the current EU procurement rules. What are the key features of the regime? As noted, the GPA is more than a minimal framework. It comprises the Agreement’s main body together with members’ coverage schedules. While the Agreement...

Nwabueze v University of Law Ltd and others [2020] EWCA Civ 1526 What are the practical implications of this case? As observed at paragraph [4], apart from equal pay, the Eq A 2010 divides jurisdiction into tightly sealed compartments. Claims about discrimination arising in the employment sphere, including matters involving qualifications bodies, fall under Eq A 2010, Part 5 and are within the exclusive jurisdiction of the Employment Tribunal ( ET). By contrast, discrimination connected with education is governed by Eq A 2010, Part 6 and sits within the exclusive jurisdiction of the County Court. The ruling confirms that students, or those applying for admission, who allege discrimination by universities under the Eq A 2010 must commence proceedings in the County Court, not the ET. Where an organisation counts as a university for the purposes of section 91 of the Eq A 2010, that...

On Friday 16 October 2020, the Information Commissioner’s Office ( ICO) confirmed that the airline had not implemented adequate security controls, leading to a data breach impacting more than 400,000 customers. In a 114-page penalty notice, the ICO determined that BA infringed the integrity and confidentiality requirements of the General Data Protection Regulation, Regulation ( EU) 2016/679 ( GDPR), by failing to ensure the proper protection of personal data. ‘ The attack exposed numerous shortcomings across BA’s security arrangements and network,’ the regulator noted (see here). Trinidad and Tobago The decision, for the first time, sets out details of the incident and emphasises the risks in how organisations manage remote access to their servers, particularly during the coronavirus ( COVID-19) pandemic. The breach began on 22 June 2018, when an unknown attacker gained entry to BA’s network using the credentials of a Swissport...

Privacy International v Secretary of State for Foreign and Commonwealth Affairs and others Case C‑623/17 What are the practical implications of this case? From a legal standpoint, the ruling requires the UK to re‑evaluate how and when it acquires bulk communications data from internet and telecoms providers, and to define firmer constraints on its monitoring powers. Existing approaches that involve transferring such data on a blanket and non‑targeted basis are at odds with EU law. Careful consideration must be given to the thresholds that must be satisfied before issuing notices to transfer data under the Telecommunications Act 1984 ( TA 1984), together with the material and procedural safeguards that will regulate the onward transfer and use of that information. Notably, there will probably need to be an explicit nexus between the necessity for the particular datasets sought and the protection of National...

Remondis Gmb H v Abfallzweckverband Rhein- Mosel- Eifel Case C-429/19 ECLI: EU: C:2020:436 What are the practical implications of this case? The Court of Justice has persisted with a narrow reading of exemptions in the Public Procurement Directive ( Directive 2014/24/ EU) and took a purposive stance when construing a contract said to be exempt. The Court of Justice confirmed the degree of collaboration needed for reliance on the Hamburg exemption, insisting that cooperation must be genuinely set up or carried out to have effect. This maintains a strict view of derogations and emphasises demonstrable, substantive collaboration in practice. To rely on the exemption, contracting authorities should think carefully about how they frame, evidence, and deliver joint strategies and mutual advantages when entering a Hamburg-exempt arrangement. If they neglect this, and cannot show real collaboration in practice, disgruntled private sector operators...

Serafin v Malkiewicz and others [2020] UKSC 23 What are the practical implications of this case? Lessons from the unfair trial aspect include guidance for judges and practitioners on engaging with a litigant in person ( LIP). Judges owe duties, and lawyers have professional duties to the court. Working with LIPs can be challenging, exasperating and take considerable time—sometimes more so than dealing with overly combative solicitors. Clients may struggle to understand why you appear to ‘assist’ an unrepresented opponent. Yet justice demands that those without representation are treated with politeness and dignity, and are given at least basic assistance and direction to find their way through the court process. Only then can justice truly be achieved for all involved in the process as a whole. On the DA 2013, s 4 defence, the Supreme Court’s judgment sets out principles which, though not strictly...