Court of Appeal rules Automated Facial Recognition breaches data privacy rights: Gerry Facenna QC and Eric Metcalfe act for Information Commissioner in landmark case

In a ground-breaking decision, the Court of Appeal today unanimously held that the use of Automatic Facial Recognition (AFR) by South Wales Police breached privacy and data protection rights due to the lack of a clear legal framework, reversing the Divisional Court’s judgment in September 2019 which had approved its use. That judgment was acclaimed as the first time any court anywhere in the world had considered the lawfulness of AFR.

Gerry Facenna QC and Eric Metcalfe acted for the Information Commissioner, who had been granted permission to make written and oral submissions before both the Divisional Court and the Court of Appeal.

The Court of Appeal accepted the submissions of the Commissioner and the Appellant that the legal framework governing AFR failed to comply with the right to private life under article 8(2). The Court observed that it was “not clear who can be placed on the watchlist nor is it clear that there are any criteria for determining where AFR can be deployed” (paragraph 91). The existing policies governing AFR, the Court held, “do not sufficiently set out the terms on which discretionary powers can be exercised by the police and for that reason do not have the necessary quality of law” (paragraph 94).

The Court also agreed with the Commissioner’s argument that the Police’s data protection impact assessment failed to meet the requirements of section 64 of the Data Protection Act 2018 because it “failed properly to assess the risks to the rights and freedoms of data subject” (para 153). In addition, the Court of Appeal held that South Wales Police had breached their public sector equality duty under the Equality Act 2010, on the basis that they had “never sought to satisfy themselves, either directly or by way of independent verification, that the software program in this case does not have an unacceptable bias on grounds of race or sex” (paragraph 199).

Today’s judgment has received widespread media coverage, including the Financial Times, the Daily Telegraph, the Guardian, the Times, and the BBC.

Gerry Facenna QC and Eric Metcalfe acted for the Information Commissioner.

Nikolaus Grubeck and Ciar McAndrew act for JCWI in successful challenge to racially discriminatory Home Office decision-making algorithm

The Secretary of State for the Home Department has today announced that the Home Office will discontinue the use of an algorithm used to categorise visa applicants on racially discriminatory grounds.

The algorithm, known as the Streaming Tool, was used to process a range of applications for visas to enter the UK. The Streaming Tool allocated a Red, Amber or Green risk rating to relevant visa applications. Applications made by people holding ‘suspect’ nationalities received a higher risk score. Their applications received intensive scrutiny by Home Office officials, were approached with more scepticism, took longer to determine, and were much more likely to be refused.

The Joint Council for the Welfare of Immigrants (JCWI), a charity which advocates for the elimination of injustice within the immigration system, sought judicial review of the use of the Streaming Tool. JCWI was supported in its claim by Foxglove, a non-profit organisation which focuses on the fair use of technology. JCWI’s grounds of claim, and the Home Office’s decision to retire the Streaming Tool, can be found on Foxglove’s website.

JCWI argued that, in taking account of a visa applicant’s nationality, the Streaming Tool directly discriminated on the grounds of race, in breach of sections 13 and 29 of the Equality Act 2010. JCWI also argued that the Streaming Tool was irrational, because it created a ‘feedback loop’ in which applicants with ‘suspect’ nationalities were more likely to have their visa application rejected, with a high level of rejections in turn being used to justify keeping that nationality on the ‘suspect’ list. Furthermore, the Streaming Tool promoted confirmation bias in Home Office officials, who were encouraged to rely on the algorithm as a tool to aid their substantive decision-making.

In response to JCWI’s claim, the Home Secretary today confirmed that the Home Office will suspend the algorithm with effect from 7 August 2020, “pending a redesign of the process” which will consider “issues around unconscious bias and the use of nationality” in automatic visa systems. The Home Secretary also undertook to undertake and disclose Equality Impact Assessments and Data Protection Impact Assessments for any new system.

The claim is the first known successful legal challenge to an algorithmic decision-making system. It has received extensive press coverage, including from the Guardian, the BBC, and Sky News.

Nikolaus Grubeck and Ciar McAndrew acted for JCWI, led by Ben Jaffey QC. They were instructed by Rosa Curling and Erin Alcock of Leigh Day.

Upper Tribunal clarifies the scope of “public authorities” under EIRs

In its judgment in Information Commissioner v Poplar HARCA, the Upper Tribunal has clarified the scope of Regulation 2(2)(c) of the Environmental Information Regulations (EIRs), which provides that private entities can be considered to be “public authorities” and subject to the EIRs where they ‘carry out functions of public administration’.

The Upper Tribunal upheld the FTT decision that Poplar HARCA, as a private registered provider of social housing, is not subject to the EIRs. In order to fall within the definition, an entity must be ‘entrusted’ by legislation with performing its functions of public administration, as well as being ‘vested with special powers’ for that purpose. Moreover, the fact that an entity is subject to a regulatory regime laid down in statute is not sufficient to constitute an ‘entrustment’.

Given the widespread practice of out-sourcing by Government, as well as the privatisation of many sectors, the judgment has significant implications for the reach of the access to environmental information regime.

Laura Elizabeth John represented the Information Commissioner.

Read the case note commentary by Harry Gillow and the full judgment is here.

Monckton team scores victory for Apple in €13bn State aid and tax case

The EU General Court has today upheld Apple’s appeal against the EU Commission decision finding that Apple’s tax treatment in Ireland constituted unlawful State aid. The Commission decision has been annulled in full: all three bases on which the Commission sought to show that Apple had paid less tax than was properly payable in Ireland have been found by the Court to be wrong.

The case concerned the amounts of tax paid in Ireland by two Apple group companies, one of which was Apple Sales International (the company that sells Apple products worldwide outside the USA and therefore receives most of Apple’s worldwide revenues). Both of those companies were incorporated in Ireland and carried out some practical functions through people based in Ireland, but their profits were attributable mostly to their use of Apple group IP and global marketing strategies developed in Cupertino, California. Most of the companies’ directors were based in California, not Ireland, and were involved in developing, in California, Apple IP and global marketing strategies.

Irish tax law required the companies to pay tax in Ireland on the profits of their ‘Irish branches’, i.e. an amount of their profits attributable to their functions performed in Ireland, not on their total worldwide profits. The companies, believing they were complying with the law, ascertained their profits in Ireland using formulae which essentially captured amounts of profits that were attributable to the operations they actually carried out in Ireland. Those Irish operations were comprised of routine operational functions, not the development of Apple IP.

The companies therefore did not pay tax in Ireland on a majority of their profits, since their total profits were driven mainly by their use of Apple IP. That IP was developed not in Ireland but in California. The companies had the right to use the IP pursuant to ongoing cost sharing agreements (‘CSAs’) under which Apple group companies contributed to the costs of IP development on an ongoing basis, and had the right to use the IP. The CSAs were agreed on behalf of the companies by their directors in California, and not in Ireland.

The Commission, by its decision in 2016, found that Ireland had granted unlawful State aid to Apple by issuing tax opinions which approved the formulae used by the companies for calculating their amounts of profits subject to tax in Ireland, and/or by accepting the companies’ annual tax returns. According to the Commission, the companies should, on a correct application of the Irish tax legislation in the light of EU State aid law, have paid tax on their total worldwide profits, since they had no employees anywhere outside Ireland. (The companies’ directors were not employees of the companies.) In other words, the Commission’s position was that, since the only place where the companies had employees was Ireland, all of their worldwide profits should be attributable to their ‘Irish branches’ by default. This was the Commission’s primary case.

Had the Commission’s primary case been upheld, then the amount of back-taxes Apple would have been required to pay in Ireland could have exceeded €13bn. This made the Apple case the highest value State aid case in history.

The Commission’s decision also advanced two other (effectively ‘fallback’) bases for finding Apple to have received State aid: the ‘secondary line’ and the ‘alternative line’. By the secondary line, the Commission found that the methodology used by the companies to calculate the profits of their Irish branches was inappropriate, and that a correct methodology would have led to more tax being paid in Ireland. By its alternative line, the Commission found that the Irish tax regime allowed too much discretion to the Irish tax authority in relation to approving methodologies for calculating profits of international companies’ Irish branches, and that this led to Apple receiving an advantage.

The General Court has, by its judgment today, found that the Commission’s primary case was wrong, and that its secondary line and alternative line were also wrong. In order for the Commission properly to find that an enterprise has received State aid, the Commission needs to show that the enterprise received from an EU Member State a ‘selective advantage’, such as by being permitted by to pay less tax than was properly due. The Court found that the Commission simply did not have a realistic case for showing that the companies had received a selective advantage, and therefore the Commission failed at the first hurdle (there being no need to consider whether other elements necessary for a finding of State aid were also present).

In relation to the Commission’s primary case, the Court found that there was no reason to attribute the companies’ rights to use Apple IP to their Irish branches. Given that neither the IP itself, nor the companies’ rights to use the IP, were attributable to any functions carried out in Ireland, it followed that the profits generated by the IP were not taxable in Ireland. The fact that the companies did not have employees outside Ireland did not show otherwise, since not everything that is done by companies which generates profits is done by employees.

The Court also found the secondary line and alternative line to be without sound evidential foundation. Even if the methodologies used by the companies, and approved by Ireland’s tax authority, were imperfect, this could not itself suffice to show that the companies received a selective advantage.

Apple was represented by Monckton members Daniel Beard QC, Alan Bates, Ligia Osepciu and James Bourke, instructed by Freshfields Bruckhaus Deringer (Brussels and London).

A copy of the judgment is available here.

Michael Armitage and Ciar McAndrew act for Claimant in successful irrationality challenge to NHS continuing care decision

R (JP, by his litigation friend BP) v (1) NHS Croydon Clinical Commissioning Group and (2) Croydon LBC [2020] EWHC 1470 (Admin)

The decision of an NHS Clinical Commissioning Group (“CCG”) on a child’s eligibility for continuing care, and resulting care package, has been set aside by the High Court.

The Claimant is a young child with an inoperable brain tumour and a range of resulting health needs. He required a tracheostomy and overnight ventilation to help him breathe. He was initially found eligible for NHS continuing care and provided with a care package which included overnight supervision by a tracheostomy-trained carer.

Following a re-assessment, the CCG decided that the Claimant was ineligible for continuing care, and that his care package, including his overnight care, should be substantially reduced.

The Claimant challenged the CCG’s decision on the basis that it was irrational. In particular, the Claimant argued that the CCG’s decision was based on the incorrect assumption that the Claimant no longer needed overnight ventilation. In fact, the removal of ventilation had been trialled but was ultimately unsuccessful.

Following a 1.5-day virtual hearing, Mostyn J accepted that the CCG had reached its decision on the basis of irrelevant and inaccurate information. Mostyn J also found that, when the CCG became aware that the ventilation trial had failed, the decisions on eligibility and care package should have been reconsidered by a full decision-making panel. Mostyn J accordingly ordered that the CCG’s decision be set aside and a fresh reassessment conducted.

The Claimant also challenged the failure of Croydon LBC to undertake fresh child in need and parent carers’ assessments in light of the reduction in his care package. Those assessments were later provided following the issue of proceedings. Separate claims that the local authority had a power to provide the Claimant with a tracheostomy-trained carer, and that the Defendants had failed to comply with their statutory co-operation duties, were dismissed by Mostyn J.

As the first known reported challenge to a children’s continuing care decision, this case is likely to be of significant interest to practitioners in healthcare law. Mostyn J’s robust approach to the irrationality challenge, and his rejection of the contention that it would be inappropriate for the Court to interfere with the CCG’s decision in relation to matters involving the exercise of clinical judgment, will also be of interest to public lawyers more generally. The same is true of the Judge’s finding that the CCG’s internal appeal and complaints procedures did not constitute an effective alternative remedy to judicial review, given that neither process was capable of securing interim relief for the Claimant.

Michael Armitage and Ciar McAndrew acted for the successful Claimant, instructed by Hopkin Murray Beskine.

A copy of the judgment is available here.

EU Court rules that victims of Volkswagen emissions scandal can sue in own Member State – Ben Lask acts for UK Government

Consumers have received a boost from the EU Court of Justice, following a ruling that customers who purchased a Volkswagen car affected by the unlawful manipulation of emissions data can sue the manufacturer in their own Member State: C-343/19 VfK v Volkswagen AG.

The judgment arose from a claim brought by an Austrian consumer organisation on behalf of 574 consumers who purchased Volkswagen cars prior to the public disclosure of the fact that the manufacturer had been fitting its vehicles with “defeat devices”. The devices meant that the exhaust gas emissions produced during testing were many times lower than those that would be produced under real-world driving conditions, thereby enabling the cars to obtain the certification required by EU law. The claim sought damages reflecting the fact that the true market value of the cars was said to be significantly lower than the purchase price actually paid.

The issue before the EU Court was whether the Austrian courts had jurisdiction to hear the claim, or whether any such claim had to be brought in Germany, where Volkswagen is based. The matter came before the Court on a preliminary reference, in which the UK Government intervened.

The general rule under EU Regulation 1215/2012 (“the Brussels I Recast Regulation”) is that, in proceedings with a cross-border element, a defendant must be sued in the Member State where it is domiciled. However, an exception to that rule provides that, in certain types of proceedings (including tort), the defendant may be sued in the place “where the harmful event occurred or may occur”. Previous case law had established that the place where the harmful event occurred covered both the place where the damage occurred and the place of the event giving rise to it, the result being that a claimant could choose to sue in either of those places. The question in this case was whether the damage occurred in the Member State where the unlawful devices were fitted to the cars (Germany) or the place where the cars were purchased (Austria).

In a judgment issued on 9 July 2020, the EU Court held that it was the latter. The Court explained that, whilst the cars had become defective as soon as the devices had been installed, the damage had occurred only when the cars were purchased for a price higher than their actual value. Since they were purchased in Austria, that was where the damage occurred. The Court held, moreover, that this was consistent with the Regulation’s aim of predictability, since a manufacturer which engaged in unlawful tampering with vehicles sold in other Member States could reasonably expect to be sued in those Member States. The result is that the claim could proceed in the Austrian court.

The judgment may have important implications for claims brought against Volkswagen in other Member States. In England and Wales, for example, a group of 91,000 claimants is suing Volkswagen in one of the biggest class actions to be heard here.

The UK Government was represented before the EU Court by Ben Lask, who is Standing Counsel to the Competition and Markets Authority.

A copy of the judgment is here.

Robert Palmer QC appears in the High Court in first ever Competition Disqualification Order proceedings

In the first contested case of its kind, the High Court has today made a competition disqualification order in respect of a director of whose estate agency breached competition law. Following a four day trial, the court disqualified the director for a period of 7 years.

The case followed an investigation by the Competition and Markets Authority which found in 2017 that 6 estate agents in the Burnham-on-Sea area in Somerset had formed an illegal cartel by agreeing to fix a minimum commission rate of 1.5% for residential estate agency services.

Although the director was not concerned with day-to-day sales, nor attended any of the meetings with the other estate agents at which the fee fixing agreement was made, the Court held that he had been made aware of the cartel agreement and took no steps to prevent or end the estate agency’s participation, so contributing to the breach of competition law. As a result, the court concluded that his conduct fell below the standards of probity and competence appropriate for persons fit to be directors of companies, making him unfit to be involved in the management of a company.

The CMA obtained the power to disqualify directors for anti-competitive conduct in 2003 when the Enterprise Act 2002 came into force, but the first director disqualification was not secured until December 2016 by way of a consensual undertaking. There have now been 17 disqualification undertakings given. The High Court’s first ruling has been much anticipated, and confirms that the Court is likely to treat such cases as serious, with the result that directors may be disqualified for longer periods than the CMA has so far accepted by way of undertaking.

The Court’s decision is also notable for its finding that although Article 8 ECHR is engaged by the making of such an order, there is no obligation on the Court to consider the proportionality of making an order in the individual case, once it has concluded that the conduct of the director makes him unfit. That issue may be the subject of further argument in future cases, but the Court held that on its factual findings in the present case, the making of an order was nonetheless proportionate.

The full decision is available here.

Robert Palmer QC appeared for the director.

Article 39, represented by Khatija Hafesji, granted permission in challenge to Coronavirus Regulations

The Adoption and Children (Coronavirus) (Amendment) Regulations 2020 were laid before Parliament on 23 April 2020, and came into force the following day. The Regulations make a large number of changes to various children’s social care regulations, affecting areas such as social worker visits, looked after children reviews, independent visitors to children’s homes, processes around adoption, and the procedures by which children in care are placed outside of their local authority area.

The Claimant is a charity which represents children in institutional settings, and has challenged the lawfulness of the Regulations. The High Court has granted permission for the claim to proceed to judicial review on three grounds. These are an alleged failure to consult, an alleged breach of the Padfield principle, and a breach of section 7 of the Children and Young Persons Act 2008 (whereby the Secretary of State must exercise his functions in accordance with the general object of promoting the welfare of children).

The claim will be heard on 27-28th July.

Khatija Hafesji acts for Article 39 (led by Steve Broach and Jenni Richards QC of 39 Essex Chambers), and is instructed by Oliver Studdert of Irwin Mitchell Solicitors.

Victory for capped pensioners represented by Gerry Facenna QC and James Bourke: Pensions Act compensation cap is unlawful and must be disapplied.

In a judgment handed down today, the High Court (Mr Justice Lewis) has found that the statutory cap on pension compensation under the Pensions Act 2004 must be disapplied because it involves unlawful age discrimination contrary to EU law and the ECHR. The judgment also finds that the Pension Protection Fund (“PPF”) failed to give proper effect to the 2018 judgment of the EU Court of Justice in Hampshire (see previous news item).

The CJEU’s judgment in Hampshire confirmed that every employee or former employee must receive at least 50% of their accrued pension entitlements in the event of their employer’s insolvency. It followed that restrictions on the compensation payable to employees of insolvent companies under the Pensions Act 2004 were contrary to EU law in so far as they resulted in some pensioners receiving less than half of the pension they had earned during their employment.

In late 2018, the PPF, which is the industry-funded “lifeboat” responsible for insolvent schemes, announced the steps it would take to comply with the Hampshire judgment. Its approach was then challenged by a number of former employees of two insolvent companies (engineering firm Turner & Newall and insurance broker Heath Lambert) and by the British Airline Pilots Association on behalf of former pilots from Monarch Airlines and BMI.

The claim succeeded on two grounds.

First, Mr Justice Lewis found that the cap on compensation in the 2004 Act involves unlawful age discrimination. While the cap introduced in 2004 had the legitimate aims of addressing “moral hazard” and cost, it was not an appropriate means of achieving those aims. The Judge found that this was one of the “rare cases” where the court should hold that a conscious decision by Parliament in an area of economic and social policy was not appropriate. The compensation cap therefore had to be disapplied. The judge found that the cap also breached the ECHR (Article 14 read with Article 1, Protocol 1) because it was manifestly without reasonable foundation and not objectively justifiable.

Second, Mr Justice Lewis found that the PPF had failed properly to implement the CJEU’s judgment in Hampshire. The PPF attempted to do so by using a one-off calculation designed to ensure that the value of the PPF compensation payable to any pensioner during their expected lifetime would be no less than half of the actuarially assessed value of their original scheme benefits. Mr Justice Lewis accepted the Claimants’ argument that this wrongly left open the possibility that, over time, some pensioners would receive less than half of their scheme benefits, e.g. if they lived for longer than the PPF had estimated. The Judge found that EU law required the PPF to put in place measures to identify and remedy that possibility in any individual case where it might arise.

In addition, the Judge found in the Claimants’ favour that: (1) the PPF had failed to ensure that the compensation payable to a survivor of a pensioner would in aggregate amount to at least half of the scheme benefits payable to the survivor; and (2) that the private trustees of schemes in PPF “assessment” are also required to pay the amounts that the PPF would be required to pay in accordance with directly effective EU law.

The judgment represents a victory for pensioners who have campaigned against the compensation cap in the Pensions Act for well over a decade. It means that thousands of former employees of insolvent companies who had seen their pensions slashed by up to 70% or 80% will now receive up to 90% of their pension, including arrears, as well as a guarantee that they will receive no less than half of the value of their original pension benefits throughout their lifetime.

Gerry Facenna QC and James Bourke, instructed by Ivan Walker of Walkers Solicitors, are acting for the Turner & Newall and Heath Lambert Claimants.

The case has been widely covered in the media, including The Financial Times, The Telegraph, Financial Reporter, FT Adviser, Pensions Age.

Rail Franchise Litigation 2019 – Stagecoach and West Coast challenges dismissed

The Technology and Construction Court this morning handed down judgment in the first phase of the 2019 Rail Franchising Litigation ([2020] EWHC 1568 (TCC)).

The 2019 Rail Franchising Litigation was one of the Lawyer’s Top 20 cases for 2020 and involves 14 Members of Monckton Chambers.

The case involves claims by Stagecoach and the West Coast Trains Partnership (which includes Stagecoach, Virgin and SNCF) against the Department for Transport arising out of procurement competitions for the South Eastern, East Midlands and West Coast Partnership railway franchises between 2017 and 2019. The claimants challenged their respective disqualifications from the competitions, seeking damages and other relief, and contested the legality of the awards of the East Midlands and West Coast franchises to Abellio and First Trenitalia respectively.

A fourth claim was brought by Arriva, but was settled on the eve of trial.

The hearing related to pensions issues – namely whether the Secretary of State’s approach to future pensions liabilities was lawful. At the time of the competitions, intervention by the Pensions Regulator had caused significant uncertainty about the way in which pensions deficits and future pensions contributions should be accounted for as part of the Rail Pensions Scheme. That privatised scheme, which remains open to new employees, had around 344,000 members at the end of 2018. The Department for Transport had issued contract terms, as part of a re-bid process, which offered defined but limited protection against some (but not all) of the pensions risks under a so-called Pensions Risk Sharing Mechanism. Stagecoach, Arriva and West Coast rejected the Secretary of State’s risk allocation and offered to contract on different terms.

In today’s judgment, Mr Justice Stuart-Smith ruled in favour of the Department for Transport on all grounds. He held that the pensions terms of the tender met the requirements of transparency and fairness; that the process followed was compliant with the relevant regulatory framework and principles of proportionality and equal treatment; and that the Department acted lawfully in disqualifying the claimants and awarding the franchises to the winning bidders.

Tim Ward QC, Ewan West, and Daisy Mackersie represented Stagecoach

Philip Moser QC, Jack Williams, and Ciar McAndrew represented Arriva

Anneli Howard, Brendan McGurk, Azeem Suterwalla, Fiona Banks, Alfred Artley, and Will Perry represented the Department for Transport

Valentina Sloane QC represented First Trenitalia

Rob Williams QC represented Govia