The Future Lawyer Weekly Update – w/c 6th September

The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.

Artificial Intelligence

South Africa and Australia find that Patents can have AI Inventors

Reported by Jasmine Cracknell

Authorities in South Africa and Australia have recognised that artificial intelligence (AI) technologies can be classed as patent inventors.
Last week, the South African patent office, the Companies and Intellectual Property Commission, approved the world’s first patent with an AI device, rather than a person, listed as the inventor.
The Federal Court in Australia also ruled that AI technologies can be classed as inventors under Australian patent law, overturning a decision by the Australian deputy commissioner of patents.
The AI device in question, DABUS (device for the autonomous bootstrapping of unified sentience), was developed by Stephen Thaler and is currently being used by Professor Ryan Abbott at the University of Surrey.
Professor Ryan Abbott and the DABUS team have been trying to get patent offices around the world to recognise AI as patent inventors in their own right, but haven’t been successful until now.
The authorities of the UK, US and Europe have all declined to rule in the DABUS teams’ favour due to inconsistency with current patent rules and legislation. Last year, the UK High Court rejected two patent applications by the team after finding that AI is not a natural person and therefore cannot be classed as an inventor under the Patents Act 1977.
The European Patent office similarly rejected the DABUS team’s application on the basis that AI systems do not have a legal personality and so cannot have legal title over their output. The team was also unsuccessful in its US application to the US Patent and Trademark Office due to the threshold for ‘conception’ not being met.
Conception is a mental act in the mind of the inventor, which cannot be achieved by AI.
In the Australian case, Justice Jonathan Beach said that although the patent would need a human owner, the court’s decision to allow an AI device to be classed as the inventor was “consistent with the reality of the current technology”.
He also said “it is consistent with the act and it is consistent with promoting innovation.”
“I need to grapple with the underlying idea, recognising the evolving nature of patentable inventions and their creators. We are both created and create. Why cannot our own creations also create?”

Australian patent attorney Dr Mark Summerfield said the ruling would likely be appealed:
“A recognition in Australian law that the term ‘inventor’ can encompass a machine would not only be well ahead of the dictionaries, it would also be ahead of any significant usage of the word in this way in society at large, or even among qualified experts in the field,” he said.
“Allowing machine inventors could have numerous consequences, both foreseeable and unforeseeable. Allowing patents for inventions churned out by tireless machines with virtually unlimited capacity, without the further exercise of any human ingenuity, judgment, or intellectual effort, may simply incentivise large corporations to build ‘patent thicket generators’ that could only serve to stifle, rather than encourage, innovation overall.”
It remains to be seen whether the decisions of the South African authorities and the Australian federal court will have any impact on patent law in other jurisdictions.

Find out more here and here.

Legislation

Judicial Review and Courts Bill

Reported by Katie Henderson

The Judicial Review and Courts Bill is, as of writing, going through its second reading in the House of Commons. Its purpose, as proposed by the long title, includes the restricting of judicial review in certain courts, the organisation of courts and use of written and electronic procedures. Some restraint toward constitutional reform is evident in the bill and it may receive a somewhat disappointed reaction from the ‘Policy Exchange’s Judicial Power Project’. This think-tank group have been highly critical of “judicial activism” and are arguably looking for broader reform to the system.

The government appears to be focusing on two main areas of concern regarding judicial review. Firstly, consideration is given to the range of remedies that the court can provide in a successful judicial review claim. The new bill allows for the suspension of a quashing order. A quashing order is typically made where an administrative body has acted ultra vires, and thus the court nullifies that particular act or decision. In practice this reform means that the judges can choose at what point a government action is overturned; giving more flexibility to the courts. A further benefit of this proposal is it allows the particular government body or department to prepare and consult before the order is put into effect. This reform is thus justified, by the government, on the grounds of enhancing good administration. Leading on from this, the bill also covers the retrospective effect of quashing orders. The proposal is such that instead of invalidating the prior action by the government, the judge is simply able to determine it to be unlawful without having to ‘undo’ the consequences. Whether this is in the general public interest is questionable. It is arguable this alone could be counterproductive to the notion of judicial review as a mechanism which holds the government accountable for unlawful past actions.

The second concern centres around the efficiency of the court system. Consequently, the bill aims to reverse a seminal Supreme Court judgment, the result of which would prevent Upper Tribunal appeals being subject to judicial review. A CartJudicial Review (named after the SC judgement) involves a challenge to a decision made by the Upper Tribunal, Immigration and Asylum Chamber, which refuses permission to challenge a First-Tier Tribunal decision, where there is no further right of appeal to the Court of Appeal. Although this is arguably a move to restrict a particular route of judicial review, the Ministry of Justice has contended that the success rate of these reviews is so low that it outweighs its necessity. The Ministry of Justice insists this money is better put to use dealing with outstanding High Court cases.

Robert Buckland, speaking on behalf of Policy Exchange’s Judicial Power Project, suggested that this move to remove Cart JR’s could be used as legal framework to make further restrictions. Particularly, he discusses the potential enforcement of ouster clauses which would define the boundaries of the court’s jurisdiction. Such a clear move to restrict the accessibility to judicial review has been met with criticism from the Public Law Project. They say that

“The Bill appears to weaken, rather than reinforce Government accountability”. Further the group goes on to say, “Instead of giving ‘tools’ to judges, it looks like this Bill is designed in fact to restrict the remedies which courts can provide. The Bill envisages courts being required to use these new ‘tools’ in some circumstances, and having the power to do so even where it would leave the claimant without an ‘adequate remedy’.

As ever with such reforms, it is hard to quantify the potential effects that this bill will have on individuals seeking to challenge government decisions. This is something that remains to be seen.

You can find more here or here.

Case Law

Coup de grace at the barracks: Home Office action at Napier Barracks ruled unlawful

Reported by Kristy Chan

On the 3rd of June 2021, Mr Justice Linden of the High Court ruled that a former military barracks, known as Napier Barracks, provided inadequate and unsafe accommodation for asylum-seekers, and that a major COVID outbreak there was inevitable. This follows a prior major COVID-19 outbreak at the camp in January 2021, when nearly 200 people were infected. The ruling also found that residents of Napier Barracks were unlawfully detained there. 

The camp reopened days later. On the 12th of August 2021, 100 asylum seekers at the Barracks were ordered to self-isolate, following a coronavirus outbreak at the site. 

What is Napier Barracks?

In September 2020 the Home Office began to accommodate asylum seekers in the Penally and Napier military barracks under the context of increased claims for asylum that meant normal accommodation in hotels would not be suitable. Such former military accommodation was known to be “basic and slightly run down”, and residents would be required to sleep in dormitories with shared bathroom and toilet facilities. The Barracks themselves were built at the end of the 19th/beginning of the 20th century, 

From 22 September 2020, the number of asylum seekers living in the Barracks grew rapidly. By 1 October 2020 there were 155 residents, and the numbers rose to a peak of 414 in mid-November 2020. Public Health England informed the Defendant that such conditions were not COVID-19 safe, and Mr Justice Linden recognised that an outbreak was “inevitable”. Such an outbreak took place in January 2021. 

On the 15th of January 2021, the residents were told not to leave the site “under any circumstance”, and had to remain in place for 1 month. Tensions rose, and on 29 January 2021, a fire was started within the block. 

The six Claimants in the case were all asylum seekers who were transferred to the Barracks from accommodation in hotels.

UK obligations 

The Home Office is responsible for the welfare of asylum seekers in the UK, as a matter of domestic law and international law. Parliament placed this obligation on the Executive via Section 95 of the Immigration and Asylum Act 1999 (“IAA 1999”), which, when read in combination with Regulation 8 Asylum Support Regulations (SI 2000/704) and Asylum Seekers (Reception Conditions) Regulations 2005 SI 2005/7 (“the 2005 Regulations”). By Regulation 5, the powers to provide “support” under sections 95 and 98 became duties if the asylum seeker has “special needs”, such as, in the present case, been “subjected to torture, rape, or other serious forms of psychological, physical or sexual violence”. Under Articles 8 and 13, these duties are assessed based on “a standard of living adequate for the health of applicants and capable of ensuring their subsistence”.

These standards were previously assessed in (Refugee Action) v Secretary of State for the Home Department [2014] EWHC 1033 (Admin) (“the Refugee Action case”). Popplewell J (as he then was) found that if the Home Office’s provision for the living needs of the supported person other than accomodation fell below the minimum required by the RCD, it would be unlawful and irrational.  According to Popplewell J, “the minimum standard of living for which provision is required by the Directive is not a matter for the Secretary of State’s subjective judgment but an objective standard. To this extent it is not open to her to treat essential living needs as having a lesser content than the objective minimum required by the Directive” [85]. 

Furthermore, as a result of the Human Rights Act 1998 (“the HRA”), most of the rights in the European Convention of Human Rights (ECHR) are now directly enforceable as a matter of UK law. Thus, public bodies such as the Home Office are directly accountable ‘at home’ when they breach an applicant’s right to life and right to liberty and security, among other ECHR rights. 

Finally, the Executive is also beholden to common law restrictions such as the longstanding right against false imprisonment, mirrored in Article 5 of the HRA. 

Various breaches by the Home Office 

Adequacy & section 95

The key standard debated was that of ‘adequacy’. Was the accommodation itself adequate? Even if it were, did the treatment of the eligible asylum seekers under Regulation 5, particularly under COVID-19 conditions, meet that standard? Refugee Action makes clear that this is an objective standard that the Home Office is not entitled to change at its discretion, particularly because ‘adequacy’ is itself already such a low threshold. 

Mr Justice Linden found that they did not. The starting point, he emphasised, was that these were asylum seekers rather than prisoners. The ‘detention-like setting’ with barbed wire, perimeter fence and padlocked gates did not give such an impression. 

Furthermore, the standard of cleanliness was itself not shocking or irreparable. However, Mr Justice Linden found that they were ‘overcrowded’ when covid-19 was taken into account. The central strip lighting and cloes quarters meant that sleep was disturbed, and mental health may also have been affected, particularly “given the vulnerabilities of the Claimants” under Regulation 5. 

The Home Office claimed that the intention was for the asylum seekers to be moved to other section 95 accommodation whilst they awaited the outcome of their applications for asylum. However, as a matter of fact, the court did not find any evidence of this: all, save one, of the Claimants, was told that they would remain at the Barracks for more than 4 months. 

The HRA and Articles 2, 3 and 8

Particular attention was given to Article 3 of the ECHR, the right against torture and inhuman or degrading punishment. The standard of Article 3 is variable and relative: Ireland v UK. The deprivation of liberty itself, the accommodation itself, and “the suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3”: Pretty. In this case, the risk of exposure to coronavirus was also relevant. However, ultimately the court found that the high threshold posed by Article 3 in the case law was not reached [265] – [268]. 

Freestanding common law claim: false imprisonment

As the HRA represents lower-hanging fruit, with a list of duties and obligations that can be pointed to on a sheet of paper, it comes as perhaps no surprise that the common law claim for false imprisonment was brought last. In R (Jalloh) v Secretary of State for the Home Department [2020] 2 WLR 413 UKSC the Secretary of State served the claimant with a notice of restriction under which a curfew was imposed on him pending his deportation. As the court in that case highlighted, it was important that there were threats of force and/or legal process made against the claimant. After all, “The essence of imprisonment is being made to stay in a particular place by another person”. 

In this case, the court took account of the overall detention-like atmosphere of the Barracks, the restrictions on visitors, and alleged curfew. However, the curfew itself was not found to be sufficiently stringent to constitute false imprisonment. 

The bigger picture

This individual case perhaps illustrates a wider trend. According to the Guardian, more than 50 have died in Home office asylum seeker accommodation in the last 5 years, including three babies. 

The statements alleged by the Claimants are therefore not an isolated problem that can be swept under the rug, or solved by a single judgment. In particular, the high threshold required by HRA claims and, perhaps even more so, by common law claims, means that greater pressure is placed on legislation such as the Immigration and Asylum Act 1999. 

Such legislation can be overturned by Parliament if it so wishes. Indeed, the “New Plan for Immigration” spearheaded by the Home Secretary Priti Patel scales back protection for asylum seekers, discriminating against asylum claimants who break immigration law to enter the country. Under such a law, those who arrive via illegal means will be given only “temporary protection”, even if they prove their right to refugee status. 

In contrast, Article 31 of the 1951 UN Refugee Convention bars discrimination against claims for refugee protection from migrants who breach immigration rules. 

However, as charities and NGOs have protested, such a plan hurts the asylum seekers who need the most protection – naturally, those fleeing political and religious persecution will find it most difficult to leave their country via legal means. 

In the long run, the UK’s departure from the European Union may complicate matters even further. Such a claim was raised by the Home Office in the present case, but ‘saved’ legislation such as the IAA 1999 remains safe – for now. Future lawyers may have to think more carefully about the strength of laws protecting the rights of asylum seekers. 

Find out more here or here.

Poland Law

Poland Passes Controversial Media Bill

Reported by Jasmine Cracknell 

Poland’s lower house of parliament voted 228-216 to pass a controversial media reform bill on Wednesday.
The bill, which was put forward by the Law and Justice Party, or PiS (its Polish acronym), aims to prevent non-EEA companies from holding a majority stake in Polish media companies.
One of the main reasons the new law has come under scrutiny is due to the impact the legislation may have on one of Poland’s main TV broadcasters, TVN. TVN is owned by US media conglomerate Discovery Inc and has been known to broadcast information and news which is critical of the Polish government. TVN is one of the biggest US investments in Poland, but Discovery may now have to sell off its share in TVN in order to comply with the new media law.
The US Department of State has expressed its concerns about the new law.

Secretary of State, Antony Blinken, said: “Poland has worked for decades to foster a vibrant and free media…A free and independent media makes our democracies stronger, the Transatlantic Alliance more resilient, and is fundamental to the bilateral relationship…Poland is an important NATO Ally that understands the Transatlantic Alliance is based on mutual commitments to shared democratic values and prosperity. These pieces of
legislation run counter to the principles and values for which modern, democratic nations stand.”
The bill is also opposed by most opposition groups as well as by the Agreement party. The Agreement party was one of PiS’s two junior coalition partners, but the party recently removed itself from the coalition after the Prime Minister, Mateusz Morawiecki, sacked the party’s leader Jaroslaw Gowin. Gowin said the media bill would “expose us to a completely irrational fight with our main security guarantor, the US”.
PiS has defended the bill, stating that it wants to prevent companies from undemocratic states from taking control of the Polish media.
The bill will now pass to the opposition-controlled Senate. The Senate can make amendments or reject the bill but the lower house can ultimately overturn any amendments and approve the bill.
The true impact of the bill on Discovery and its shareholding in TVN, along with Poland’s relationship with the US, remains to be seen.

Find out more here and here.