So that’s it, then. The Summer Bank Holidays have come and gone, the nights are drawing in, and frazzled parents are forking out for yet another maths set comprising compasses, protractor, ruler and that triangular thing nobody ever uses. On a happier note, the government has announced plans to reform the rules on GDPR, although Ella Davies has her doubts about whether it’s really time to pop the champagne corks yet; and Tom Yarrow has been looking at a case that can’t decide whether it wants to be a judicial review or not.
The future of Data Protection
The government recently announced plans to overhaul the UK’s data protection regime. Although full details are yet to be provided, statements from Digital Secretary Oliver Dowden suggest the new data protection laws will be “based on common sense, not box-ticking”, claiming this is an opportunity to develop “a world-leading data policy that will deliver a Brexit dividend for individuals and businesses across the UK”. So what should we expect and what impact might this have on UK businesses?
While the UK’s exit from the European Union meant that the GDPR no longer applied to the UK as a member state, as part of the withdrawal process the UK implemented a “UK GDPR” which essentially mirrored the requirements of the GDPR in domestic law. This, combined with the Data Protection Act 2018 (another piece of domestic legislation which works alongside the UK GDPR), is the main source of UK data protection law.
As a result, the current situation for UK businesses regarding data protection is relatively unchanged following Brexit. The requirements of the UK GDPR and the original GDPR are essentially the same. Additionally, data flows between the UK and the EU are unrestricted, as the EU has recognised the UK’s data protection regime as adequate (a logical conclusion, given how it essentially mirrors that of the EU).
If the UK’s data protection laws do change however, UK businesses will not necessarily be able to forget about the GDPR. The GDPR has extra-territorial effect, requiring businesses outside of the EU which use personal data about individuals in the EU to comply with the GDPR. So UK businesses who also trade in the EU or use any personal data about EU residents may well be faced with two compliance regimes, a “common sense” UK regime, and a “box-ticking” EU one. This of course will apply to much of the travel industry. On the bright side, the significant time and expense companies invested in GDPR compliance will not have been wasted.
That “adequacy” decision which allows data to flow freely between the EU and UK would also be reviewed if the UK deviates significantly from the GDPR. If the EU decides that the new UK data protection laws are not sufficient, it could withdraw that decision, and UK businesses will have to implement and demonstrate “appropriate safeguards” for data in order to receive it from the EU. While it’s impossible to say at this stage what the new data protection laws would look like, or how the EU would view them, Dowden’s comments indicate that the intention is to be “more pro-growth, more pro-public policy” and to “engage with industry”, a sign perhaps that the UK would be tipping the scales away from individual rights.
While a new data protection regime in the UK might rid us of the ubiquitous cookie consent banner, it’s worth noting that the requirement for this is actually included in a different piece of domestic UK law (the Privacy and Electronic Communications Regulations 2003), and that there are already planned amendments to EU law in this area to make it more “common sense”.
So where does this leave us? Dowden’s comments indicate that this will not be a quick process, but rather one of proposals and consultation before any draft legislation can be considered. The GDPR was passed in 2016, allowing a two year implementation period for businesses, and the first opinions on its development were published in 2011, so we may have to wait a while yet for our “Brexit dividend”.
About the Author
Ella Davis was called to the Bar in 2013. She undertakes work in the cross border field on behalf of both Claimants and Defendants. She has particular expertise in claims involving allegations of fundamental dishonesty and has a good deal of experience in conducting trials around the issues which arise from such allegations.
At the boundary – judicial review and the appropriate
Now as summer teeters on the autumnal precipice, and the warm glow of the Brussels regime recedes from the creeping mists of the new UK domestic jurisdictional rulebook, a case with an apposite dollop of liminality crossed my eye earlier this month. It is not often one finds a UK-internal forum challenge and even rarer to find one in a judicial review, but such was the subject matter and form of R (Ayman Eid Kaldas Girgis) v Joint Committee on Intercollegiate Examinations  EWHC 2256 (Admin). It was an interim hearing to determine a number of procedural applications, most notably a challenge to the High Court’s jurisdiction in preference to the Court of Session.
The facts, briefly, were that the Claimant who is a specialist in urology had sought to become a consultant by passing specialty examinations hosted by the Defendant (a non-governmental organisation based in Scotland). He had failed four times to pass Part 2 of the exam, with his fourth and final attempt undertaken in Edinburgh. He followed an internal appeals process and was rejected, exhausting all available remedies (a necessary precursive condition for bringing a judicial review).
The first issue for His Honour Judge Simon to consider was a technical procedural one. The Defendant had raised its jurisdictional challenge, arguing the case should be brought in the Court of Session in Scotland, in its Acknowledgment of Service but had not made an application supported by evidence in support, as ostensibly required by Part 11 of the CPR (and indeed directed in the case). There then rose the question of how Part 11 should be read with Part 54 (which modifies the Part 8 procedure for judicial review) and whether the particular form of the Part 54 Acknowledgment of Service allows for the Defendant to raise its challenge in a manner which on a strict reading does not comply with 11(4). The White Book commentary provided no definitive answer, and precedent judicial remarks on the point were obiter. The Judge decided to sidestep the question, leaving the ambiguities to be resolved on another occasion, and turned his mind to the substantive arguments, where indeed counsel had focused their submissions in any event.
There were three issues to be resolved: first, what category of proceedings the instant case fell to be described as; second, whether the Civil Jurisdiction and Judgments Act 1982 applied to the case and allocated jurisdiction unequivocally to Scotland; third, whether in any event England was forum non conveniens, and Scotland was the appropriate jurisdiction.
On the question of the category of proceedings, the Defendant’s position was that the Claimant paid a fee for a service offered by the Defendant, which was a non-governmental organisation, and the Claimant was now seeking to complain about the quality of that service; these were, in the Defendant’s submission, civil or commercial proceedings and did not raise matters of public or administrative law. The Claimant took the opposite view, and both sides cited caselaw in support of their contention with the Defendant highlighting CJEU/ECJ cases involving a teacher in training (Case 66/85 Lawrie-Blum v Baden- Württemberg) and a teacher leading a school trip (Case C-172/91 Sonntag v Weidmann), and the Claimant citing R (LB Lewisham) v Assessment and Qualifications Allicance & Ors.  EWHC 211 (Admin), involving GCSE exam boards..
The Judge analysed the features of the Defendant, including the fact that its authority was derived rom the Medical Act 1983, and that there existed no true commercial choice for a suitably experienced and skilled doctor seeking career advancement in the manner of the Claimant. He found that the Defendant’s maintenance of proper standards wass fundamentally a manifestation of public protection derived from statute. The Lewisham case was more relevant than the case law about teachers posited by the Defendant. He concluded that the instant proceedings were administrative in nature.
On the second question, the applicability of the CJJA, the Defendant had sought to argue, even if the court found against it on the civil/commercial versus administrative point, that because the nature of the proceedings was purely UK-internal, the Brussels (recast) Regulation did not apply. The consequence of the non-application of the Regulation was that the scope of the CJJA was not narrowed in the same way as the scope of the Regulation (Article 1 of the Regulation saying expressly that administrative matters are not within its purview). The CJJA, unencumbered by the Regulation, did apply even to administrative law cases and it allocated jurisdiction to Scotland.
The Judge dismissed that argument, finding that the plain language of section 16 which covered purely domestic cases was that even if the Regulation did not itself apply that did not mean the scoping definitions imported from the Regulation had no effect. The scope of the CJJA adopted the same scope as the Regulation and administrative matters were therefore excluded.
On the final question – the forum (non) conveniens – the Defendant made submissions under the common law principle taken alongside Article XIX of the Union with Scotland Act 1706, citing the case of ex parte Greenpeace, that Scotland was the more appropriate forum. The Judge dismissed the idea from Greenpeace that this was a ‘quintessentially’ Scottish case, and instead applied the well-known Spiliada principles. In his view, the fact of the marking and sitting exams in Edinburgh was not particularly weighty – the Claimant lived and worked in England and had previously sat the exams there; evidence from witnesses was rare in judicial review oral hearings; the Defendant’s services had application in all four nations of UK; and the Claimant was acting in person. The judge’s conclusions were while the Court of Session was certainly available, it was not clearly and distinctly more appropriate in the particular circumstances of this case.
The case will advance to the permission stage.
About the Author
Tom Yarrow was called in 2018. Before joining chambers Tom was a civil servant working in various government departments, including as a policy advisor on the UK-EU Withdrawal Agreement at the Department for Exiting the European Union. During pupillage he worked with the Government Legal Department, practising in public law in the fields of public international law, justice and security, human rights and immigration. He has regularly appeared in judicial review proceedings for the Secretary of State for the Home Department, and as a member of the Attorney General’s ‘junior junior’ scheme, he is able to take instructions directly from government clients. He now practises in all of chambers’ practice areas and is an enthusiastic and valued member of the travel team.
Here we are now, entertain us: this week saw the lodging of papers in a California law suit being brought by the baby (now grown up) depicted on the cover of Nirvana’s Nevermind album. The allegations are of sexual exploitation and child pornography, with arguments that the depiction of the baby enthusiastically swimming towards a dollar bill on a fish-hook makes him appear like a sex worker. The plaintiff seeks damages of at least $150,000 from each of the 15 defendants, but might face a tall task in brushing aside the numerous occasions on which he has embraced the publicity from the image – recreating the album cover on Nevermind’s 10th, 20th and 25th anniversaries and telling the Guardian in 2015 that the album had ‘always been a positive thing and opened doors for me’.