Published on August 14, 2017 by Laura

Welcome to another Lawyer Portal weekly news summary. This week’s post will cover the legal news stories from 6th August to 12th August. This week, a proposal for UK data protection laws to be overhauled was announced, judges and MP’s express worries over the role of the Supreme Court in application of European Court of Justice (ECJ) case law post-Brexit, a young woman campaigns for the taking of ‘up-skirt’ photos without consent to be added to the Sexual Offences Act 2003.

This week a proposal to redraft the UK’s data protection law was launched by The Minister of State for Digital and Culture, Matt Hancock. The bill will transfer the European Union (EU) General Data Protection Regulation into UK law. The main aim of such legislation would be to facilitate the replacement of the current Data Protection Act to allow data to continue to move freely across borders after Brexit. Under the EU’s current data protection framework personal data can only be transferred to a third-party country if there is adequate protection guaranteed. It is thought that this new law will allow us to prepare Britain for Brexit.

The legislation proposed will allow British people to have more control over what happens to their personal information. This will afford citizens the ability to compel firms and companies to delete their personal information, from an embarrassing social media post to more sensitive data such as DNA. The proposals suggest that gaining consent will become an explicit requirement for the processing of personal data as well as ensuring that withdrawal of consent is made easier. Moreover, it will expand the definition of personal data to include IP addresses and smaller files known as cookies. All of this goes beyond the ‘right to be forgotten’ rules that already apply to search engines. Mr. Hancock said that these changes will “give the UK one of the most robust, yet dynamic, set of data laws in the world.”

These changes would not be all encompassing as arguments can be put forward to refuse deletion of certain information such as freedom of expression or matters that have scientific or historic importance.

The legislation also provides for significant consequences for firms who intentionally flout the law. In the UK, firms who suffer a serious breach could be fined up to £17m or 4% of global turnover. The current maximum fine is £500,000. In addition to this, to police the new regime, the powers of the Information Commissioner will be strengthened and extended. The current Commissioner, Elizabeth Denham, has expressed support for the proposals.

Lord Neuberger has expressed worries over the government’s newly unveiled plans to allow the Supreme Court to override EU courts after Brexit. The current head of the Supreme Court, who will step down from his position later in the year, warned that the government needs to give judges more clarity on how to proceed with court rulings after we leave the EU. He stresses that there will be grey areas between British and EU law even after Brexit. Long running cases will be halted and the role of the European Court of Justice in establishing legal precedent will be unclear. Moreover, he expressed a belief that judge’s ruling within the grey areas should not be blamed for any mistakes made in the absence of clear instruction from Parliament.  

Many commentators explain that issues of conformity may arise once EU law is incorporated into UK law and it is unclear whether it will be possible for UK judges to apply UK principles when interpreting legislation derived from EU regulations. Senior Conservative MP and barrister Dominic Grieve has suggested that without guidance from Parliament, the ECJ will remain a “dominant presence” in UK courts.

The Department for Exiting the EU has recently published a position paper attempting to address these issues, however the solution has been criticized as vague and The Supreme Court remains wary of being left responsible for policing Britain’s new legal borders in future.

Victims of ‘up-skirting’ are being urged to write to their MPs to ask Parliament to take a young woman’s bid to amend the Sexual Offences Act 2003 seriously. The woman, Ms. Martin, started a petition for change in the law after a man who took a photo up her skirt without her consent received no criminal sanction.

Met Police told her that they could not punish the offender because he ‘had done nothing illegal.’ The support Ms Martin has received from women who have had similar experiences has proved to her that a change in the law is required. However, her petition, which stands at more than 55,000 signatures, has not created any significant debate in Parliament for a change to the law.

She now asks that some of the same women who contacted her after signing her petition formally write to their local MPs demanding action in a definite hearing in Parliament.

Section 67 of the Sexual Offences act makes ‘observing someone for the purpose of sexual gratification when the person is doing a private act’ a criminal act. Ms. Martin’s campaign seeks to amend this section to include ‘up-skirting’ or ‘creepshots.’ Leading criminal barrister, Simon Myerson QC, can also see the benefits of making this a specific offence, as it already is in both Scotland and New Zealand. He went on to suggest that the offender could then potentially be placed on the Sex Offenders Register.

Words: Alicia Gibson


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