September 2019 – Whitestone Chambers

UK passengers concerned about European flights after 31 October 2019.

With the Brexit deadline of 31 October 2019 looming, many airline passengers that have booked flights to European destinations are concerned about flights scheduled after the deadline. Recent research by Which? Travel showed that “a third of flyers are worried that European flights could be disrupted once Britain leaves the EU”.

For the near future those passengers can have their fears alleviated. In place is EU Regulation 2019/502 that provides for common rules ensuring basic air connectivity with regards to Brexit, allowing UK planes to fly to European destinations. Article 16 4(b) of the Regulation extended the operation of this Regulation until 30 March 2020; recently the European Commission released a statement on 4 September 2019 extending the effect of the Regulation:

“Basic air connectivity (Regulation (EU) 2019/502): the Commission has today proposed to extend this Regulation until 24 October 2020, reflecting the logic and duration of the original Regulation.”

As such, UK-based airlines may continue to operate European flights until 24 October 2020.

Passengers will be reassured to know that they can continue to make travel arrangements for the future. However, what must be considered is that whilst the flights will continue to operate, there will be an increased scrutiny on passports for passengers travelling from the UK to an EU country. The increased scrutiny will require that passengers “have at least 6 months left on an adult or child passport to travel to most countries in Europe (not including Ireland).”

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Nearly 450 Drunk Airline passengers in 2 years

Police figures have shown that nearly 450 passengers have been arrested on suspicion of being drunk in the past 2 years. Freedom of information requests reveal that at least 245 people were arrested on suspicion of being drunk at a UK airport between 1 April 2017 and 31 March 2019.

Heathrow, the UK’s busiest airport, reported the highest number of arrests within that time period with 103 passengers, followed by Gatwick with 81, Glasgow with 47 and Liverpool with 40 arrests. Greater Manchester Police and 3 other forces did not provide figures within the time limit so the final figure is expected to be higher. The ages of those arrested range between 20-58.

The figures emerged after a woman was arrested at Southend Airport for attacking an easyJet crew member. A similar incident took place at Bristol Airport with a man arrested on suspicion of being drunk on an aircraft and sexually assaulting the female crew members.

Chief executive of trade body Airlines UK has described the arrest figures as “ridiculous’’ and has also requested for the introduction of new laws to reduce the number of passengers who drink too much before and during flights.

Ryanair, Europe’s biggest airline, support the proposed changes and stated that “We continue to call for significant changes to prohibit the sale of alcohol at airports, such as a two-drink limit per passenger and no alcohol sales before 10am.’’

The sale of alcohol once a passenger has gone through international airport security in England and Wales is not regulated by licensing laws. A Home Office consultation on whether legislation should be amended closed in February without a decision being announced.

Legislation is important for several reasons, including setting standards and controls to govern the actions of people and groups in the public and private spheres. However, with Parliament otherwise occupied, there seems no sign of any changes any time soon.

Lawfulness of bulk hacking powers under the Investigatory Powers Act 2016

This article was first published on Lexis®PSL Corporate Crime on 20 August 2019. Click for a free trial of Lexis®PSL.

Corporate Crime analysis: Adam Richardson, barrister at Whitestone Chambers, considers the most recent judicial review challenge brought by Liberty concerning the lawfulness of the bulk hacking powers under the Investigatory Powers Act 2016 (IPA 2016).

R (on the application of National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department and another (National Union of Journalists intervening) [2019] EWHC 2057 (Admin), [2019] All ER (D) 02 (Aug)

What are the practical implications of this case?

As the claimants effectively lost the case, the existing regime vis-a-vis IPA 2016 still stands—arguably even more firmly than before. As such, there will be no new practical implications to consider other than those already created by IPA 2016. The largest concern for lawyers has to be the effect on legal professional privilege (LPP). Ever since the Regulation of Investigatory Powers Act 2000 (RIPA 2000), there has been a question of a surveillance authority legally acquiring information that is the subject of LPP. This goes against years of convention protecting privilege, however RIPA 2000 remained silent on the topic. When IPA 2016 was first drafted, the Bar Council raised explicit concerns about the erosion of LPP through either a failure to distinguish between privileged and non-privileged communications (as a result of bulk hacking) or the power given to authorities to monitor ‘sensitive, highly confidential communications that have nothing to with criminality, national security or threats to individuals’.

The government listened and added a few additional safeguards for privileged information. A warrant would be required to be issued for the interception and review of information that is subject to LPP. The authority issuing the warrant must have regard to the ‘public interest in the confidentiality of items that are subject to legal privilege’. Further, IPA 2016 also requires public interest, necessity and prevention of death, or serious injury conditions to be satisfied before such a warrant can be issued.

Needless to say, this is a very high bar. There can be no getting around that as a result of bulk hacking, privileged information will be intercepted if only through inadvertence. Given the number of practical and operational issues raised by the claimant in the case, this should be concerning at best.

The claimants have made clear they intend to appeal this, and it may end up in the European Court of Human Rights (ECtHR) where there may well be a different view taken, so, until all appeals are exhausted on this matter, no position is settled.

What was the background?

The High Court’s judgment in Liberty, R (On the Application Of) v Secretary of State for the Home Department & Another is the second iteration of the issues raised on this claim. See R (on the application of the National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department and another [2018] EWHC 975 (Admin), [2018] 3 WLR 1435, , [2018] All ER (D) 129 (Apr), where the court gave judgment on the first part of the claimant’s challenge to IPA 2016. That challenge was brought under EU law. It only concerned IPA 2016, Pt 4 (regarding powers to require the retention of ‘communications data’), as this part had just been brought into force. The court found in that judgment that IPA 2016, Pt 4 was incompatible with human rights law and gave the government until 1 November 2018 to redraft it, which it duly did.

In the instant judgment, the court was concerned with the second part of the claimant’s challenge, which arises under the Human Rights Act 1998 (HRA 1998). This challenge concerns various other parts of IPA 2016, which have now been brought into force on various dates.

The claimant challenged four different sets of provisions in IPA 2016. What they all have in common is that they concern bulk powers, rather than powers which are directed at any particular individual who may be a potential subject of interest (sometimes called targeted surveillance). The relevant provisions are as follows:

IPA 2016, Pt 6, Ch 1—which relates to bulk interception warrants
IPA 2016, Pt 6, Ch 3, and IPA 2016, Pt 5—these concern warrants for bulk and thematic equipment interference. The claimant has described this in its submissions as ‘hacking’
IPA 2016, Pt 7, which relates to warrants for bulk personal datasets (BPD)
IPA 2016, Pt 6, Ch 2, and IPA 2016, Pt 3–4—respectively warrants for bulk acquisition of communications data and retention notices for, and acquisition of, communications data. Communications data is not the content of communications but other matters such as where, when and who

The only remedy which the claimant sought was a declaration of incompatibility under HRA 1998, s 4.

A very simplistic summary of the claimant’s case is that the minimum safeguards established by the ECHR for secret surveillance regime were not met. As not all human rights are absolute, certain breaches may only take place where they are in accordance with law or necessary for a democratic society. The claimant submitted the measures in IPA 2016 were neither necessary nor proportionate.

What did the court decide?

The court went to great pains in this judgment to be as comprehensive as possible. The judgment itself is almost 400 paragraphs long (excluding accompanying legislation) and gives an incredibly detailed overview of the law. While the claimant was able to bring to light shocking examples of government data use, including data being lost in ungoverned spaces without the necessary controls, among others, the court still found that IPA 2016 was not incompatible with HRA 1998. Among the extensive reasoning is that the mechanisms for oversight within the legislation itself, such as the establishment of the office of the Investigatory Powers Commissioner (to conduct independent oversight of spy agencies’ use of the powers), provide sufficient checks on the risk of abuse. The court dubbed the regime as ‘a suite of interlocking safeguards’.

The court spoke specifically of Parliament’s consideration for the fears about abuse expressed by the claimant but noted they chose to address those in IPA 2016 through those various interlocking safeguards mentioned.

Interviewed by Alex Heshmaty.

Pressure on BA after customer email mix up.

British Airways have been instructed to reimburse passengers who were mistakenly told in an email that their original journeys had been cancelled and that they should source alternative means of transport. The airline emailed passengers who were not affected in error telling them that their flights had been cancelled and “it is likely that you will not be able to travel.’’

A source from the Daily Mail further explained that the passengers were later angered even more after receiving another email saying that, their flights would proceed as planned. This however was too little too late as some passengers had already acted on the first email and had booked another flight.

The Civil Aviation Authority have expressed the fact that “Those affected should not be left out of pocket for any extra expenses such as accommodation, food and travel which incurred due to the error.’’ This is illustrated in the case of Alitalia Linee Aeree Italiane, S.p.A. v. Airline Tariff Publishing Company [1968] where the court rejected Alitalia’s negligence and gross negligence causes of action because all of the parties’ duties to each were set forth in their agreement, and ATPCO had no data input duties to the airline that were separate from those set forth in the agreement.

British Airways stated that they will reimburse passengers on a ‘‘case by case basis’’, many are not hopeful and fear that they will not be reimbursed. This incident could have ramifications for similar mistakes in the future.

The CAA added pressure on British Airways by saying that; ‘’Those consumers that took action should not be left out of pocket and any reasonable costs of re-booked flights should be claimed from the airline.’’

Guy Anker, deputy editor at consumer website Money Saving Expert said that ‘’What British Airways did was amateurish in the extreme. The CAA is absolutely correct that British Airways should return every single penny to anyone who unnecessarily booked alternative flights, transport and accommodation.’’

A spokesperson for British Airways said: “We are sorry for the frustration and inconvenience. As soon as we were issued with dates, we contacted airlines across the world to support with rebooking agreements. Our teams are providing customers whose flights have been cancelled with options.’