25
Apr
22
Articles, Travel & Cross Border Claims
The Weekly Roundup: The Resources Edition

New National Archive Case-Law Resource Launches

This week a new resource for access to online case-law was launched by The National Archives. Under the title “Find Case Law” an incomplete “alpha” version of the resource is now operational with a view to receiving feed-back so that it can be progressively refined and improved. It is understood that the new system is designed to supersede and expand the resource provided by the charity Bailii through its website which has long been the go-to starting point for legal research and up-to-date case-law access.

The new resource will augment what is offered by Bailii in a number of ways including storing cases as live data rather than merely as documents so that parties’ names and other details can be redacted when required. Additionally, judgments from the Courts and Tribunals of England and Wales will be sent to The National Archives through a  Transfer Digital Records service for public bodies. It will also make judgments available for republication through an Open Justice Licence, which will differ slightly from the previous Open Government Licence regime in that it will apply only to current versions of judgments and it will allow certain forms of predictive and analytic bulk-data processing upon the appropriate applications being made. Finally, it is thought that judgments pre-dating 2003 will eventually become available via the service.

Of the launch, Justice Minister, James Cartlidge, said:

“As we continue to build a justice system that works for all, the National Archive’s new service is a vital step towards better transparency. It will ensure court judgments are easily accessible to anyone who needs them.”

Dr Natalie Byrom, Director of Research at The Legal Education Foundation, said:

“The launch of the new judgments service at The National Archives is a hugely significant step for open justice. For the first time, the retention and preservation of judgments from courts and tribunals in England and Wales is guaranteed under primary legislation, as is the right for the public to obtain access to these documents.”

On the government website announcing the service, the following is contained in a “Note to Editors” about the on-going role of Bailii:

“BAILII will continue to provide free access to English and Welsh judgments, and other jurisdictions including Scotland, Northern Ireland, the Republic of Ireland and the Commonwealth, alongside their other charitable endeavours.”

Explaining the historic role of Bailii and the new responsibility of the The National Archives, it states:

“The British and Irish Legal Information Institute (BAILII) is a charity that has been contracted to publish Court and Tribunal judgments on behalf of the Lord Chancellor and have provided a valuable service. As this contract expires, The National Archives will assume the responsibility of judgments storage, preservation and publication. BAILII will receive future judgments from Case Law under licence.”

About the Author

Dr Russell Wilcox was called to the Bar in 2000, and before joining chambers enjoyed an illustrious career in academia. He was an associate member of McNair Chambers in Qatar, where he worked on a number of large-scale cross-jurisdictional commercial disputes and on international arbitral proceedings, and acted as disclosure counsel in Athenasios Sophocleus & Others v Secretaries of State for Foreign and Commonwealth Affairs and Defence, relating to the actions of the Colonial Administration in Cyprus during the Cyprus Emergency of 1956 to 1959. He now accepts the full range of work undertaken by the travel team at 1 Chancery Lane.


National Audit Office Releases Assessment of Government’s Handling of Travel Measures during the Pandemic

The National Audit Office has released its assessment of the quality of the Government’s handling of cross border travel measures during the COVID-19 pandemic this week. The full report is available online[1].

The report accepts that measures were put in place in time-pressured circumstances, and acknowledges the effort that this required, but does still, despite that acknowledgment, consider there to be lessons learned should such measures be required again in the future.

In fact, while couched in fairly dry managerial terms, the report is in many ways severely critical; suggesting that the rules were somewhat haphazard and poorly monitored with inadequate prioritisation and clarity. There is substantial ammunition in the report for public or private law challenges to a fairly wide range of the management of this system, and it should be referred to by any professional engaged in such actions.

The criticisms can be summarised as follows:

While individual departments had systems for managing the specific programmes; there was no central program for managing border risks as a whole, and a number of good practice recommendations, such as system-level risk registers had not been adopted. Similarly, while the total government spend on cross border travel measures generally exceeded £486 million, it was not tracked across government departments generally. The system also lacked performance measures and evaluation criteria, failing to achieve value for money.

The NAO recognised the need to balance public health with other concerns, and accepted that those objectives fluctuated as the pandemic progressed; but criticised the lack of clarity as to how those competing objectives were to be balanced and prioritised. That was doubly true as the border rules “changed at least 10 times” between “February 2021 and January 2022”.

The Passenger Locator Form, though swiftly implemented, had inadequate checks for the accuracy of the information, and focussed excessively on completeness of information at the expense of accuracy. The NAO did acknowledge that this was as a result of undue delegation to private operators. It also acknowledged that there was a very high rate of compliance by those operators, implying perhaps that inadequate accuracy conditions were set.

The report commends the Department for Health and Social Care for its efforts to create a private market for paid-for COVID-19 tests so as to protect domestic testing, but criticises government oversight of that market and regarded service to the public as “sometimes poor”. Prices varied wildly from hundreds of private operators, marketed truthfully as government approved, but in practice inadequately regulated and with “minimal assurance that they can provide the services”. The Competition and Markets Authority recommendations that the public receive better information on quality was not implemented prior to the implementation of the system in March 2022.

Enforcement of at-home self-isolation was poor; with around 33% of follow-up checks unsuccessful; and an estimated rate of personal non-compliance at between 26% and 42%, significantly in excess of the 25% estimate. The £114 million spent on the UKHSA contract does not seem to have achieved value for money.

The Managed Quarantine Service – the Red List Hotels – was commended as set up swiftly and handling a significant number of passengers; and the exemptions were well planned, with most exemptions being subject to alternative COVID-19 measures. The cost, however, was substantial, and contrary to the government’s expectation that the whole cost would be born by the passengers, in fact, some 50% – £786 million – taxpayers money was spent on the system. It was, also, overwhelmingly wasteful – testing was universal, but only around 2% of those were positive; rising briefly to 6% during the peak of the Omicron outbreak – both probably lower than the general population.

The report ends on a recommendation to substantially risk-analyse future measures, and the imposition of performance metrics; improve service to the public, and value for money to the taxpayer.

About the Author

Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others [2019] HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus.

[1] https://www.nao.org.uk/report/managing-cross-border-travel-during-the-covid-19-pandemic/

Written by or involving: Russell Wilcox, Robert Parkin

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