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Amicus AmicusC u r i a e The Journal of the Society forC Advanced u r Legal i a Studies e Inside ... Introduction Read more on page 329 Articles Read more on page 338 Review article Read more on page 459 Notes Read more on page 476 Book reviews Read more on page 542 News and events Read more on page 554 Contributors’ profiles Read more on page 560 Visual law Read more on page 564 Series 2 No 1(3) 328 Amicus Curiae CONTENTS Introduction Judicial Early Neutral Evaluation Michael Palmer . 329 Victoria McCloud . 487 Telecom Centre (UK) v Thomas Articles Sanderson (Early Neutral ‘AI Theory of Justice’: Using Evaluation): Full Text . 496 Rawlsian Approaches to Legislate British Association of Comparative Better on Machine Learning in Law Government Yseult Marique . 501 Jamie Grace and Roxanne Bamford Corporate Liability for Breaches of . 338 Fundamental Human Rights in Domestic Abuse during the UK’s Canadian Law: Nevsun Resources COVID-19 Lockdown: From Normal Limited v Araya (2020) to New Normal and What Survivors’ Experiences Might Teach Us Peter Muchlinski . 505 R (Hans Husson) v Secretary of State Amy Kellam . 361 for the Home Department (2020) Homeless Applicants with Dissatisfactory Decisions, Russell Wilcox . 532 Appropriate Dispute Processing and Book Reviews Access to Justice Patrick Birkinshaw—European Patricia Ng . 379 Public Law: The Achievement and the Judicial Experiments in Caseflow Brexit Challenge Management 1920-1970 Yseult Marique . 542 Michael Reynolds . 389 Katie Benson, Colin King, Clive Assessing the Efficiency of the Walker (eds)—Assets, Crimes and District Courts of Pakistan—Why is the State: Innovation in 21st Century Better Evaluation Needed? Legal Responses Muhammad Saeed . 418 Umut Turksen . 547 Two Dimensions of the Rule of Law: A Reminder from Hong Kong News and Events COVID-19 Response . 554 Cho Kiu Chiang . 439 Results of the 2020 IALS Library Review Article Reader Satisfaction Survey . 555 Jonathan Sumption, Trials of the Launch of New Research Centre 557 State: Law and the Decline of Politics Building Transformation Project Patrick Birkinshaw . 459 Update . 558 Notes Events, Podcasts and Short Courses Making Law for Children in Scotland: . 558 Turning Commitment into Reality Profiles of Contributors to Articles, Lesley-Anne Barnes Macfarlane Review Article and Notes . 560 . .. 476 Visual Law Maria Federica Moscati . 564 Series 2, Vol 1, No 3 Introduction 329 INTRODUCTION MICHAEL PALMER IALS and SOAS, University of London elcome to the third issue of big data analysis. These include the first volume of the new data bias, unfairness, threats to Wseries of Amicus Curiae. We thank privacy, equality, and human contributors, readers and others rights standards, and lack of for the progress that the transparency and accountability. relaunched journal has enjoyed. These worries need to be borne in mind in developing new legislation In this issue a number of in order to meet the emerging contributions address broad challenges of algorithmic justice in issues in access to justice, legal data-driven governance. They reform and rule of law. Jamie argue that a regulatory framework Grace and Roxanne Bamford’s for governing the processes by essay concerns the question of which data and technology are how to achieve clear ethical and used, including the use of artificial democratic standards in the intelligence in our criminal justice regulation of algorithmic justice. system and in other public The authors argue that these agencies, needs to reflect Rawls’ standards are best established principles of equality of basic through implementing the ideals liberties and rights, and fair of John Rawls as expressed in his distribution of all social goods.1 seminal study, A Theory of Justice. They note the potential issues in Amy Kellam’s essay on the policy and regulation that may question of domestic abuse during arise from the increasing use of the UK’s COVID-19 lockdown Amicus Curiae Contacts By post: Eliza Boudier, Amicus Curiae, Editor: Professor Michael Palmer, Charles Clore House, 17 Russell SOAS and IALS, University of Square, London WC1B 5DR London If you would like to contribute an Production Editor: Marie Selwood Article or short Note to a future issue, please visit the Amicus Curiae webpages Email address for all enquiries: to view the Style Guide and [email protected] submission information. 1 See also the essay in Amicus Curiae 1-1 by Adam Harkens (2019) ‘Fairness in Algorithmic Decision- Making: Trade-offs, Policy Choices, and Procedural Protections’. Spring 2020 330 Amicus Curiae explores the significance of the why this is so. Briefly stated, their information which is increasingly ‘grievance apathy’ is best available on domestic abuse explained as a combination of during the lockdown commencing factors operating in a context of spring 2020. It does so with restricted access to legal advice, particular reference to the assistance and representation. proposed Domestic Abuse Bill Among these factors is a lack of (2019-2021) and against the wider legal consciousness on the part of socio-economic background. A many applicants, so that central concern is the manner in grievances do not easily become which domestic abuse is transformed into challenges or characterized in popular culture appeals. and especially in the media, and The article by Cho Kiu Chiang how this characterization impacts (William Chiang) looks at issues in on our perceptions of the the rule of law in the context of necessity of, and proposals for, Hong Kong and the protests legal reform in order to deal better ongoing there. His essay focuses with the problem of domestic on the meaning and conceptual abuse. boundaries of ‘rule of’ and ‘law’, Patricia Ng’s contribution looks and relevant jurisprudential at the issue of homeless persons perspectives on the rule of law are and their negative experiences in also considered. The analysis the handling of their applications leads the author to conclude that to local government in England for the phrase ‘rule of law’ needs to be temporary accommodation. It understood as binding the hands explores concerns in the decision- of those who invoke it—in making process, and in the particular, governments should realistic availability and suitability not see themselves free to exploit of remedies, in what is often a the term for ulterior purposes, and situation of power imbalances in the words in the term themselves the relationship between, on the require some basic obligations on one hand, the applicants— the part of those who rule and especially those whose govern. If a government does not vulnerability triggered an want to fulfil those obligations—to application in the first place—and, keep its promise of the rule of on the other, local government law—then it should not engage in officers. The applicants often fail rule of law rhetoric. to challenge negative decisions In an extended assessment of which they perceive to be wrong Lord Sumption’s Trials of the and unfair, and the essay draws State: Law and the Decline of on socio-legal analysis to show Politics, Patrick Birkinshaw Series 2, Vol 1, No 3 Introduction 331 considers, in relation to assume greater social re- arguments put forward in that sponsibilities and to become more book, issues of law in public life. interventionist. But, at the same Of these issues, the most pressing time, argues Birkinshaw, in the contemporary UK for historical origins and Sumption is the impact of the contemporary functions should growth of judicial law, weakening not be conflated, with reference in both legislation and political particular to Article 8 of the process (including active European Convention on Human citizenship). While agreeing with Rights (ECHR) and the judicial Sumption on a number of key activism of the European Court of issues—in particular, the Human Rights. Birkinshaw holds inadvisability of public decision- th at original intentions to protect making by referenda, the need individuals against Nazi and for electoral and other political Communist authoritarianism and reforms, and greater citizen abuse do not necessarily preclude -ship involvement—Birkinshaw a more activist and imaginative challenges the analysis offered in use of Article 8 by the courts to Trials of the State. He does so, create innovative rights such as among other things, by pointing to that of personal autonomy in more a lack of clear conceptualization in recent times. Historical origins Sumption’s analysis of the and contemporary functions may apparently distinctive realms of differ significantly, and, as law and of politics, and of the Birkinshaw stresses, ‘it is a weak boundaries between them, as well argument to suggest that the as by leaving open the question of [anti-authoritarian] context in who decides what the law is. which the ECHR was formed has no relevance to novel Moreover, suggests Birkinshaw, manifestations of rights today’. what Trials of State views as primarily the consequences of While acknowledging that judicial (more rigorous, ad- judges in their decision-making judicative) activism—in particular, are embedded in a normative the growth of administrative law structure which is suffused with as developed since the 1960s, and systemic bias, Birkinshaw rejects changing ideas of parliamentary the call for a less robust judiciary supremacy—need to be more and instead falls firmly on the side firmly understood in terms of their of judicial activism. And he raises roots in fundamental principles of the question: when parliamentary the common law. These common sovereignty is abused what should law values took on a new be the appropriate judicial dimension as government came to response? To which he himself Spring 2020 332 Amicus Curiae replies, that it is for the judge, interference in his private and exercising her or his conscience family life to engage Article 8(1) of and offering reasoned judgment. the ECHR2 and justify damages for For it is the responsibility of consequential loss.