The Law Commission has issued a consultation on the topics it should cover for its 14th Programme of law reform. It says that it has a role to play in the crucial tasks of helping the country recover from the effects of the COVID-19 pandemic and in addressing some of the consequences for the law of leaving the EU.
Many of the topics being considered will be of interest to tech lawyers. The Commission has traditionally been associated with reform of existing laws. But over recent times it has developed expertise in designing legal frameworks that both anticipate and confront the implications of future technologies, for example automated vehicles and to support the digital economy. There will a growing need in the future for law which reflects developments such as AI and the use of algorithms in decision-making. In all of these areas it is necessary to consider not only the commercial and economic implications but also the need for proper consumer protection.
More specifically, the Law Commission is considering the following possible projects:
- Should a legal framework be developed to support the increased automation of public decision-making? The 14th Programme offers a timely opportunity to examine what changes to the legal framework are required alongside existing developments in best-practice, data ethics, and best procurement practices. The Law Commission welcomes views on whether the next Programme of law reform should include a review of the legal framework governing the role of automation in public decision making. It is particularly interested in whether there are particular policy areas – for example social security, or local government – which would benefit from early attention.
- What are the jurisdictional challenges presented by emerging technologies? The Law Commission’s recent tech-related projects have identified several conflict of laws issues, such as the problem of determining whether a particular court will have jurisdiction to hear a dispute in relation to a smart contract. This area of law is currently uncertain, and there is a sense that the international commercial community is waiting for a jurisdiction to grasp the nettle. A lack of clarity in relation to the rules may be inhibiting the uptake of new, and potentially more efficient, technology. The Law Commission could clarify the domestic legal position, and identify situations that may require the development of new rules rather than the analogous extension of existing ones.
- Should there be a review of the principles of information sharing between public bodies? It might be that the law needs to adapt to modern demands, for example in relation to non-personal, anonymised, or pseudonymised data.
- How can the law of deeds be modernised for commercial parties whilst still protecting vulnerable individuals? A Law Commission review would build on previous work on electronic execution, assess the current requirements for the execution of deeds (both in electronic form, and on paper) and make proposals for reform. The review should include careful scrutiny of the need to protect vulnerable people signing documents with significant legal consequences. The Law Commission will be reviewing the law of deeds but the timing for the project is subject to overall priorities. It seeks views about the priority it should give this project, and evidence as to any difficulties experienced in executing deeds, particularly in the context of the Covid-19 pandemic.
- What are the key principles underpinning the expansion of digital justice? Consideration will need to be given to how digital participation in judicial proceedings aligns with long-established legal principles developed for a different age. Other topical issues include whether the presumption that computer-generated evidence is reliable unless proved otherwise should be changed in the light of the damaging findings in the Royal Mail sub-post offices Horizon IT litigation, and whether public bodies should be liable for the other party’s costs where the public body loses in litigation.
- How can the law best protect individuals entering online marketplaces? The law appears to be unclear (for example, as to when an individual will be treated as a “trader” under the Consumer Rights Act 2015) and appears to provide limited protection to a consumer in a peer to peer sale. While the platforms themselves often provide dispute resolution mechanisms, these are not a replacement for appropriate legal rules.
- Should the strict liability product regime be extended to cover all software and other tech developments? The Law Commission could consider the current statutory product liability regime and make proposals, where necessary, to ensure that consumers are adequately protected in relation to software and related technological developments.
- Has the criminal law kept pace with technological change? This project would assess how well the criminal courts are keeping pace with advances in technology and seek to ensure that the law allows efficient and effective use of the opportunities new technology offers. In tandem it would seek to resolve technical glitches in the law which are themselves causes of inefficiency.
- Does the law cater for the increasing role electronic evidence plays in criminal investigations and prosecutions? The project would consider how the law governing the acquisition and treatment of electronic material in criminal investigations could be updated and simplified.
The consultation closes on 31 July.
