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Showing impact case studies 1 to 5 of 5
Submitting institution
The London School of Economics and Political Science
Unit of assessment
18 - Law
Summary impact type
Legal
Is this case study continued from a case study submitted in 2014?
No

1. Summary of the impact

Professor Jill Peay’s research addresses the core issue of fairness in the criminal justice system, by providing a legal mechanism for ensuring that those who cannot be tried fairly are not exposed to conviction and punishment. Peay and her collaborators have developed a psychometrically sound method of assessing an accused person’s ability to plead to an indictment, to understand court proceedings, to follow trial evidence, and to participate effectively in their trial. This novel instrument continues to be subject to real-world testing and will require training for its clinical use. The research underpinning the instrument has been endorsed by the Law Commission and has informed its draft legislation on unfitness to plead.

2. Underpinning research

The prison population for England and Wales has consistently exceeded 80,000 in recent years. Even setting aside those prisoners whose physical conditions may also have affected the fairness of their trials, some 90% of prisoners notably have one or more of five diagnosable mental health disorders (Singleton et al 1998; Fazel and Danesh 2002; Peay 2014). This can only cast doubt on the fairness of some of their convictions, whilst also questioning the continuing applicability of the leading 19th century case on unfitness, R v Pritchard (1836) 7 C. & P. 303.

Government, legal practitioners, civil liberties advocates, and academics have all expressed concern about this state of affairs. In response, the Law Commission initiated a programme of reform to address these issues and the incompatibility of our law with the European Convention on Human Rights (ECHR). Following an initial meeting with Peay, Dr Nigel Blackwood (Institute of Psychiatry), and Dr Michael Watts (UCL), the Law Commission supported the successful grant application to the Nuffield Trust to enable this team to undertake a cross-disciplinary project to develop a psychometrically sound method of assessing an accused person’s ability to plead to an indictment [1]. This project commenced in 2009, with a grant of just under GBP200,000 (see Section 5, **[A]**).

Peay brought to the research project her special expertise in the fields of mental health and crime. Her principal role was that of providing the expertise necessary to design and test a legally appropriate instrument for determining the core cognitive abilities an accused person would need to participate meaningfully in the trial process [2]. In consultation with legal and clinical practitioners, a script was developed for a typical short court case and a testing instrument was devised to probe an accused person’s understanding of the trial and the court process. The script was cross-checked for authenticity with senior judges and filmed with professional actors. The point of view adopted was that of the defendant [1].

The resulting film was then shown to some 200 “normal” participants and to groups representing people who might experience difficulties with trial proceedings, such as those with learning disabilities and mental health problems. Peay assisted specifically in the task of identifying qualifying normal subjects in the “difficult to locate” more mature age range (64-81yrs). Participants in the exercise were required to put themselves in the position of the defendant. As the film progressed, they were asked a series of questions set out in the accompanying legally informed instrument. As a result of this testing phase amendments were made to the instrument. A second round of testing was held, with a further 160 subjects, leading to a validated test of fitness to plead.

As the legally qualified member of the research team, Peay was influential in refining this instrument. The methodological challenges the team addressed included taking into account participants’ previous experiences of the criminal justice system, making the instrument gender-neutral, and considering the role of the instrument among participants faking cognitive impairment (legal malingering).

3. References to the research

[1] Brown, P., Stahl, D., Appiah-Kusi, E., Brewer, R., Watts, M., Peay, J., and Blackwood, N. (2018). Fitness to plead: Development and validation of a standardised assessment instrument. PLoS ONE, 13(4), e0194332. DOI: 10.1371/journal.pone.0194332.

[2] Peay, J. (2012). Fitness to plead and core competencies: problems and possibilities. Law working papers (WPS 02-2012). Department of Law, London School of Economics and Political Science. Available at: http://eprints.lse.ac.uk/44734/

[3] Peay, J. (2014). Imprisoning the mentally disordered: a manifest injustice? LSE Legal Studies Working Paper No. 7/2014, London School of Economics and Political Science. DOI: 10.2139/ssrn.2378445. Available at: http://eprints.lse.ac.uk/55830/

[4] Peay, J. and Player, E. (2018). Pleading Guilty: Why Vulnerability Matters. Modern Law Review, 81(6), pp. 929-957. DOI: 10.1111/1468-2230.12374.

[5] Peay, J. (2016). An awkward fit: offenders with mental disabilities in a system of criminal justice. In Bosworth, M., Hoyle, C., and Zedner, L. (Eds.) Changing Contours of Criminal Justice: Research, Politics and Policy (Chapter 10). Oxford University Press. ISBN: 9780198783237.

[6] Peay, J. (2015). Mental incapacity and criminal liability: redrawing the fault lines? International Journal of Law and Psychiatry, 40, pp. 25-35. DOI: 10.1016/j.ijlp.2015.04.007.

4. Details of the impact

The research outlined above has informed legal debate related to establishing an accused person’s fitness to plead, and can be shown to have consistently influenced the Law Commission’s work on this subject. This influence can be seen in the sequence of Law Commission documents described below, beginning with the initial Consultation Paper in 2010 but most evident throughout the REF 2021 period, in the Commission’s 2014 Issues Paper [I] and culminating in its 2016 Final Report and Draft Bill ( [B] and **[C]**).

In 2014, the Law Commission published Unfitness to Plead: An Issues Paper, to solicit the views of those with experience of the criminal justice system, ahead of making its final recommendations to government. With respect to developing a defined psychiatric test to assess a defendant's decision-making capacity, the Issues Paper explicitly endorsed this research: “ No standardised model was put forward in the [Consultation Paper], but we endorsed research being conducted into such a formulation[I, para.4.7 ]. The research referred to here, and cited in a footnote, is that which was later published in [1].

Following consultation ( [G] and **[H]**), the Law Commission published its revised proposals in a final report in January 2016, together with a Draft Bill. Peay’s contributions are recognised in the report’s acknowledgements [B, para.1.120 ], alongside those of her collaborators and other academics consulted. The report then goes on to reference Peay’s contributions a further 32 times, noting her input to a number of issues under consideration. A fitness to plead psychiatric test based on the project’s findings was one of the key planks in these proposals, noting its benefits in terms of increased time and cost efficiencies: “ An initial assessment might obviate the need, in some cases, for a full report to be prepared, with all the attendant costs and delays, or at least identify more clearly the appropriate expert to approach. We hope that the work currently being conducted on screening tools might also assist in making screening robust and effective[B, para.4.72 ]. Again, the underpinning research is referenced.

The importance of the identification and screening of defendants with unfitness to plead or capacity issues is demonstrated by government funding commitments. As the Law Commission Report [B, para 1.3 note 7 ] observes: “ On 6 January 2014 the Government announced an additional GBP25 million spending on liaison and diversion services for police stations and magistrates’ courts in ten areas across England, with a view to rolling out the scheme nationwide in 2017. This scheme has the potential to revolutionise the identification and screening of defendants with unfitness to plead or capacity issues”.

The developed instrument has the potential to improve the current practice for assessing fitness to plead under the Pritchard criteria. More importantly, it directly addresses a key initial objective of the Law Commission’s programme of reforms insofar as it can be used to reframe assessments in accordance with the ECHR requirements of “effective participation” in trial processes ( SC v UK (2005) 40 EHRR 10), thus responding directly to a key initial objective of the Law Commission’s programme. As Bevan and Ormerod note with respect to the Law Commission’s proposals: “ A critical element of a reformed framework was felt to be the accurate and efficient identification of those few defendants who lack the capacity to participate effectively in trial[D]. The fitness to plead instrument which arises out of this research explicitly addresses that capacity.

Following the Law Commission’s proposals being issued to government, a response was received in June 2016 from the Rt Hon Mike Penning MP, Minister of State at the Justice Department, which welcomed the “ balanced and thorough consideration of how to ensure that defendants who lack the capacity to participate in trial are dealt with appropriately in the criminal courts" [F]. Recommendations remain under consideration, whilst the issues remain prominent for lawyers (see Max Hill QC, DPP) [K] and in the Court of Appeal (see Marcantonio [2016] EWCA Crim 14 and Holloway [2016] EWCA Crim 2175). Clinicians have recommended field trials of the Law Commission’s proposals, augmented by use of test instruments [L].

The instrument has subsequently been put into “real-world” testing in the Magistrates’ Court by Dr Penny Brown at the Institute of Psychiatry. Brown, a clinician, is one of the authors of the 2018 publication [1]. She has been using the instrument in her doctoral research. Peay has been acting as one of three key investigators/collaborators on this PhD (separately supervised at the Institute of Psychiatry, KCL).

Assessment of the wider impacts of this instrument remains under consideration. However, facilitating a fairer and more efficient trial process that balances the rights of vulnerable defendants, whilst protecting the interests of complainants and the public from harm, can only enhance confidence in the criminal justice system. The research has had a direct impact on the Law Commission’s views [E]; evidence of impaired capacity to participate is a key concept in its Criminal Procedure (Lack of Capacity) Bill [C]. The Bill’s novel proposals would address many of the problems outlined above.

5. Sources to corroborate the impact

[A] Nuffield Trust Access to Justice programme grant AJU/35238. The project team were given a grant by the Nuffield Foundation of just under GBP200,000.

[B] Law Commission (2016), Unfitness to Plead Report - Volume 1: Report.

[C] Law Commission (2016), Unfitness to Plead Report - Volume 2: Draft Legislation.

[D] Bevan, M. and Ormerod, D. (2018). Reforming the Law of Unfitness to Plead in England and Wales: A Recent History. In Mackay, R. and Brookbanks, W. (Eds.) Fitness to Plead: International and Comparative Perspectives. Oxford University Press.

[E] Supporting statement from Professor Penney Lewis, the current Commissioner for Criminal Law at the Law Commission, in an email 29 October 2020. It confirms the research contributed in a material way to the final form of the Law Commission’s recommendations to government, published in their 2016 Report Unfitness to Plead. And it expresses their gratitude.

[F] Letter Rt Hon Mike Penning MP, 30 June 2016, House of Commons Library.

[G] Law Commission (2013), Unfitness to Plead: Consultation Responses.

[H] Law Commission (2013), Unfitness to Plead: Analysis of Responses.

[I] Law Commission (2014), Unfitness to Plead: An Issues Paper.

[J] Successful integrated research application system proposal for Fitness to Plead: A conceptual and empirical study by Dr Penny Brown with Peay as named key investigator/collaborator. See email attachment 25 February 2014 from Brown.

[K] Max Hill QC, Director of Public Prosecutions, Parmoor Lecture , Howard League for Penal Reform 14 October 2019.

[L] Galappathie, N. and Shaw, A. (2019). Reforming fitness to plead and stand trial legislation in England and Wales. BJPsych Advances, 26(1), pp. 8-15. DOI: 10.1192/bja.2019.50.

Submitting institution
The London School of Economics and Political Science
Unit of assessment
18 - Law
Summary impact type
Political
Is this case study continued from a case study submitted in 2014?
No

1. Summary of the impact

Dr Orla Lynskey’s research has directly influenced major legal and policy proposals seeking to secure effective data protection in digital markets, particularly those with dominant market players. Specifically, her research has had a significant impact on the European Data Protection Supervisor’s recommendations to ensure a coherent approach to digital rights in the context of big data processing. It has also informed and influenced policy debate and recommendations regarding the assessment of data-driven mergers and abuses of market power in digital markets. In addition, engagement with the research by civil society organisations, notably the European Consumer Organisation and Privacy International, has helped to ensure they are better able to defend the interests of those they represent. By influencing substantive and institutional reforms designed to ensure coherence between data protection and competition law frameworks, her research has contributed to the process of establishing a more robust protection of fundamental rights.

2. Underpinning research

The data protection framework is premised on the belief that individuals should have certain rights in relation to their personal data and its processing. Lynskey’s pioneering monograph, The Foundations of EU Data Protection Law [1], argued that, given the scale and complexity of data processing operations in the online sphere:

(1) these rights, and control over personal data more generally, are called into question;

(2) individuals alone cannot ensure effective data protection;

(3) given the dominant role of powerful digital companies such as Facebook and Google, more cross-cutting, holistic approaches to such protection are required.

The conclusion stemming from this research was that the market structure in which an individual is asked to exercise their data protection rights can have a significant impact on the effectiveness of these rights. For example, one could query whether consent is “freely given” when there is no competition in the market (i.e. no alternatives) and the service in question is of social and professional importance to individuals. By paying more attention to structure, one could observe two inter-related dynamics. First, that there is a significant concentration of ownership of digital consumer-facing platforms in the hands of few providers; and, second, that with respect to data protection, there is little competition or differentiation between digital platforms and service providers. As a result, although the data protection framework seeks to facilitate choice and control over data and, more generally, to promote a fair data processing environment, these aims are jeopardised by the failure to acknowledge data protection considerations in competitive assessments.

In subsequent research, Lynskey elaborated on what a more holistic approach to the attainment of effective data protection online would entail, arguing that competition law should be applied in a way that assists in the achievement of this aim. The approach advocated has three dimensions [2] [3].

First, the “consumer welfare” standard used by competition authorities to guide enforcement, which currently focuses on ensuring lower prices, more choice, and better quality products, should be interpreted to include data protection considerations. Lynskey’s research argues that the level of data protection offered to individuals forms part of the overall “quality” of a product (e.g. weak data protection safeguards would be an indicator of poor quality). Her claim is that competition authorities should use data protection law as a normative benchmark against which to measure this aspect of quality and that this should be utilised in merger or “abuse of dominance” (Article 102 TFEU) assessments.

Second, in addition to the incorporation of such non-price considerations in the consumer welfare lens in mergers, Lynskey’s analysis shows that data-driven mergers and acquisitions (such as Facebook’s acquisition of WhatsApp) should be subject to a non-competition assessment alongside the competitive assessment of the merger, drawing an analogy with the “media plurality” assessment undertaken in media mergers pursuant to the discretion granted to EU Member States by Article 21 of the EU Merger Regulation.

Third, her research recommends that regulators engage in institutional cooperation in order to ensure a coherent approach between different regulators working in data-related fields, such as consumer protection, competition, and data protection law.

Lynskey’s was the first research to propose such an approach, and while it was vigorously contested at the time in the competition law and policy community, the first and third elements outlined above are now widely accepted, while a recent announcement from the Competition and Markets Authority suggests that the second will now also be implemented in the UK.

Finally, in more recent work [4] [5] [6] Lynskey examined whether control over personal data contributed to the power of digital companies - “data power” - and whether the role of data portability initiatives in data protection and competition law could act as a constraint on this power.

3. References to the research

[1] Lynskey, O. (2015). The Foundations of EU Data Protection Law. Oxford University Press. ISBN: 9780198718239.

[2] Costa-Cabral, F. and Lynskey, O. (2015). The internal and external constraints of data protection on competition law in the EU. LSE Law, Society and Economy Working Papers, 25/201. London School of Economics and Political Science. DOI: 10.2139/ssrn.2703655. Available at: http://eprints.lse.ac.uk/64887/.

[3] Costa-Cabral, F. and Lynskey, O. (2017). Family ties: the intersection between data protection and competition in EU Law. Common Market Law Review, 54(1), pp. 11-50. Available at: http://eprints.lse.ac.uk/68470/.

[4] Lynskey, O. (2017). Aligning data protection rights with competition law remedies? The GDPR right to data portability. European Law Review, 42(6), pp. 793-814. Available at: http://eprints.lse.ac.uk/80859/.

[5] Lynskey, O. (2017). The power of providence: the role of platforms in leveraging the legibility of users to accentuate inequality. In Moore, M. and Tambini, D. (Eds.) Digital Dominance: Implications and Risks (Chapter 7). Oxford University Press. ISBN: 9780190845117. Available at: http://eprints.lse.ac.uk/84413/.

[6] Lynskey, O. (2019). Grappling with "data power": normative nudges from data protection and privacy. Theoretical Inquiries in Law, 20(1), pp. 189-220. DOI: 10.1515/til-2019-0007.

[1] forms part of OUP’s Oxford Studies in European Law series and was commended by Merlin Gömann in Common Market Law Review for laying “ a strong groundwork for the normative understanding of European data protection law” and as a “ fundamental analysis of the right to data protection in the European Union” by Herke Kranenborg in International Data Privacy Law. [2] was cited extensively in a European Data Protection Supervisor Opinion (2016), while [3] has been cited in various policy documents (below). [6] was an invited contribution to a special issue with contributions from eminent academics in the field of data protection and privacy.

4. Details of the impact

Lynskey’s research has had an impact on the European Union's data protection authority, UK policymakers, and civil society organisations by demonstrating the significance of the relationship between data protection and competition law and elucidating the attendant areas of concern. These stakeholders have benefitted through the subsequent shaping of robust legal and policy positions and proposals and, in the case of civil society organisations, by being better able to defend the interests of those they represent and to define best practice for and enhance the knowledge of their staff.

Shaping the European Data Protection Supervisor’s recommendations, which acted as a catalyst for global legal and policy reform

The European Data Protection Supervisor (EDPS) is the EU’s independent data protection authority. An important part of its remit involves developing a vision for the future development of data protection law and providing policy guidance to address new challenges in the field. As such, it is one of the most influential data protection authorities worldwide.

In March 2014, the EDPS published a preliminary opinion, Privacy and competitiveness in the age of big data. The aim of this initiative was to identify whether the lack of competition in important consumer-facing digital markets (e.g. social networking services and search engines) was having a negative impact on data protection and to make relevant recommendations. A substantially developed and revised final Opinion was subsequently published in September 2016 : The EDPS Opinion on coherent enforcement of fundamental rights in the age of big data [A]. This final Opinion was both explicitly and implicitly shaped by Lynskey’s research.

The 2014 preliminary opinion contained only three brief paragraphs over 38 pages discussing “data protection as a factor in consumer welfare”. It noted that “ it may be necessary to develop a concept of consumer harm, particularly through violation of rights to data protection, for competition enforcement in digital sectors of the economy” but did not elaborate on what this “harm” might be or how it could be assessed. In developing this claim and setting out recommendations, the final Opinion cites [2] to support its recommendation that data protection standards can be used “ to determine ‘theories of harm’ relevant to merger control cases and to cases of exploitative abuse” of a dominant position [A]. The Opinion also cites this research [2] to support the claims that “ there are circumstances in which data protection can provide a relevant normative benchmark for competition law”, and that there is competition law “ precedent for using another field of law” to find a restriction of competition [A].

Lynskey has also been instrumental in shaping the policy of the EDPS on this topic through sustained formal and informal engagement with key members of its staff. Following publication of the preliminary opinion, she was invited to participate in a closed workshop hosted by the EDPS at the European Parliament in June 2014, designed to develop the ideas set out in the preliminary opinion, and was one of two participants (the other being US economist, Dr Jan Whittington) asked to consider “consumer welfare and consumer protection”. In September 2015, she was invited to speak at the EDPS-European Research Academy’s “Competition rebooted” conference, again to develop these themes. Following publication of the final Opinion, she has continued to engage with the EDPS on this issue, including chairing the keynote conference session in January 2017 where the EDPS launched the Digital Clearing House. The Digital Clearing House is a forum which enables competition, data protection, and consumer protection authorities to meet, exchange insights and discuss best practices, consistent with the third outlined recommendation of the Lynskey research [2] [3]. The Head of the Private Office of the EDPS has described Lynskey’s research as "essential" to the development of its policy in this area, benefitting its understanding of competition and data protection law in three key ways:

  • "The notion of a positive obligation on the part of the European Commission qua competition authority to uphold the Charter of Fundamental Rights

  • Potential of 'media pluralism' rules in merger control to be a model for 'platform pluralism' in digital economy

  • Use of GDPR as a standard to assess whether abuse of dominance has taken place under TFEU Art 102." [B]

Influencing policy debate and recommendations regarding the assessment of data-driven mergers and abuses of dominance prohibited by Article 102 TFEU

Following the EDPS initiative, the question of whether and how data protection and competition law intersect became a prominent issue in domestic and international institutions. The House of Lords Select Committee on Communications conducted a broad inquiry into “Regulating in a Digital Environment” in 2018-19. It dedicated a chapter of its final report to “market concentration”. Lynskey presented oral evidence to the Select Committee based on the conclusions of [2] and [3]. These papers argued for increased scrutiny of data-driven mergers and acquisitions. In particular, they argued that, beyond a competition assessment, such mergers could be made subject to a parallel non-competition assessment of their impact, using the parallel assessment for media mergers as an analogy. Lynskey’s oral evidence was cited with approval in the final report [C] and was used to support the recommendation (paragraphs 148-9) that “ in its review of competition law in the context of digital markets the Government should consider implementing a public-interest test for data-driven mergers and acquisitions”.

Subsequently, in August 2020, Lynskey was contacted by the Competition and Markets Authority's Digital Taskforce "Futures" workstream, to provide input on the possible establishment of a Digital Markets Unit, a recommendation of the Furman Review. The Digital Taskforce is specifically focused on exploring how digital markets might evolve over the next 5-10 years. In September 2020, Lynskey participated in an expert interview, during which she again emphasised to the Digital Taskforce the need to include data protection as part of a wider merger assessment [2] [3]. The following month, in a significant shift in UK policy, the new Chief Executive of the CMA announced the intention to amend the merger regime to accommodate a separate assessment of non-competition concerns such as data protection [D].

A 2016 House of Lords EU Select Committee report, “Online Platforms and the Digital Single Market” [E], also cited evidence submitted by Lynskey and based on research published in [1]. Regarding the data protection/competition law intersection, the report noted how the dominance of digital platforms and their control of information flows renders it more difficult for individuals to exercise their rights effectively online [E, paragraph 171 ], and lamented the fallacy of relying on individuals to protect their own rights in this hugely complex context [E, paragraph 216 ].

Lynskey’s work has also directly informed OECD policy discussions on this topic and the work of its “best practice roundtables”. These are organised by the OECD’s subject-specialist committees, convened to guide the application of the law in member countries. [4] is cited several times in a 2017 background report on non-price effects in merger control [F], while Lynskey herself drafted and presented to committee a paper on "Considering Data Protection in Merger Control Proceedings" in June 2018 [G]. This paper was subsequently cited alongside [3] in the background note to the "Consumer data rights and competition" roundtable.

In 2020 Lynskey was invited to become a non-governmental advisor to the International Competition Network, a network of competition authorities, presenting on competition law and data privacy at its inaugural workshop. Additionally, in November 2018, she was the sole UK-based legal academic invited to provide evidence to the Federal Trade Commission hearings on "Privacy, Big Data and Competition" as part of the FTC’s "Hearings on Competition and Consumer Protection in the 21st Century"; and in October 2019 she presented on a panel alongside FTC Commissioner Rohit Chopra and the now-EDPS Wojciech Wiewiórowski at the annual meeting of the International Conference of Privacy and Data Protection Commissioners.

Informing the policy positions and building capacity of civil society organisations

The intersection between data protection and competition law, first articulated by this research, has been shown to be of growing relevance to many diverse stakeholders in recent years. Lynskey's engagement has been crucial in bringing this emergent area of law to the attention of civil society organisations, notably BEUC (the European Consumer Organisation or “Bureau Européen des Unions de Consommateurs”) and Privacy International, enhancing the effectiveness of their advocacy, and helping them to formulate robust policy positions in response to a rapidly evolving digital environment.

Lynskey's academic contribution has helped BEUC, the umbrella group for 44 independent consumer organisations from 32 countries, to bridge the gap between the fields of competition law and data protection law and gain an understanding of the core legal and policy issues at stake, ultimately ensuring it is better able to represent and defend the interests of European consumers. Agustin Reyna, BEUC's Head of Legal and Economic Affairs, highlighted three areas in which the organisation has benefitted: 1) influencing its position regarding the upcoming review of EU Competition Law, as expressed in the response to the European Commission’s consultation on the “Shaping of Competition Policy for the Digital Era”; 2) Lynskey's data power research [4] [5] [6] has provided BEUC with " useful arguments about how to approach enforcement of Article 102 TFEU regarding abuse of dominant position and restriction of competition in digital markets"; and 3) her interdisciplinary approach has " opened a discussion about how agencies should cooperate to address infringements that could simultaneously lead to the undermining of the fundamental rights to data protection and privacy while at the same time leading to a disruption of competition when practices are applied by dominant undertakings" [H].

Reyna notes that these are just a few examples of how this research has " helped [BEUC] to develop policy positions to defend the interest of consumers before the EU decision-makers".

In 2020 BEUC appointed Lynskey as one of four academic advisors on its “Consumer Protection 2.0” project. This work seeks to reshape consumer protection law to address the challenges of current digital markets.

Privacy International has similarly benefitted from Lynskey’s research in its submissions to competition authorities. In its submission to the Federal Trade Commission on privacy, big data, and competition, [2] and [3] were cited in support of several key claims: that in a competitive market we should expect that companies would compete to offer privacy-friendly services, and that market power may be preventing the emergence of such competition [I]. Her work informed its submissions to the European Commission on “shaping competition law in an era of digitisation” [I], while she has also provided an expert statement for inclusion in its submission to the European Commission regarding Google’s proposed acquisition of Fitbit. Lynskey's engagement with Privacy International has also extended to training and capacity-building initiatives, offering guidance on the data protection/competition law intersection to staff and affiliated students, and leading sessions at the organisation's conferences. Privacy International had not previously had cause to concern itself with competition law and so its engagement with the Lynskey research has been important to navigating these nascent concerns.

Overall, Lynskey's research has been crucial to the increased attention to - and acceptance of - the relationship between data protection and competition law. This is now beginning to manifest itself in decisional practice, notably so in an apparent shift in stance from the European Commission in its merger decisions. In the Facebook/WhatsApp merger decision (2014), it referred to data protection only once and clearly stated that “any privacy-related concerns flowing from the increased concentration of data within the control of Facebook as a result of the transaction do not fall within the scope of the EU competition law rules but within the scope of the EU data protection rules”. However, in its later Microsoft/LinkedIn decision (2016) the Commission refers to data protection on 26 occasions, explicitly acknowledged privacy as “an important parameter of competition” [J], and considered the impact of the transaction on consumer privacy [J, paragraph 350 ].

The increased scrutiny of Google’s acquisition of Fitbit by competition authorities on the basis of data protection considerations represents further progress and may lead to data protection concerns being factored in before, rather than after, such a data-driven acquisition.

5. Sources to corroborate the impact

[A] Opinion 8/2016: EDPS Opinion on coherent enforcement of fundamental rights in the age of big data, 23 September 2016.

[B] Supporting statement from Head of the Private Office of the EDPS, 19 February 2020.

[C] House of Lords, Select Committee on Communications, Regulating in a digital world, March 2019.

[D] Digital Markets: using our existing tools and emerging thoughts on a new regime, UK Government, 9 October 2020.

[E] House of Lords, Select Committee on European Union, Online Platforms and the Digital Single Market, April 2016.

[F] OECD, “Considering non-price effects in merger control – Background note by the Secretariat”, 6 June 2018

[G] OECD, “Non-price Effects of Mergers – Note by the United Kingdom”, 6 June 2018.

[H] Supporting statement from Head of Legal and Economic Affairs, BEUC, 6 November 2019.

[I] Privacy International, “Submission to the US Federal Trade Commission on the intersection between privacy, big data, and competition”, August 2018; and “Submission to the European Commission consultation on ‘shaping competition policy in the era of digitisation’”, September 2018.

[J] Case M.8124 – Microsoft/LinkedIn, Regulation (EC) No 139/2004 Merger Procedure, 6 December 2016.

Submitting institution
The London School of Economics and Political Science
Unit of assessment
18 - Law
Summary impact type
Societal
Is this case study continued from a case study submitted in 2014?
No

1. Summary of the impact

Dr Chaloka Beyani’s pioneering research on protecting and assisting internally displaced persons (IDPs) has underpinned the drafting of new national legislation in South Sudan (2018-19) and Ethiopia (2019-20). In each of these countries, the legislation ratifies and implements the Kampala Convention and secures and protects the basic rights of IDPs, many of whom are in urgent need of humanitarian assistance and had previously struggled to access their basic rights. The estimated IDP populations of South Sudan and Ethiopia are 1.8 million and 1.78 million respectively; the new legislation stands to benefit them all.

2. Underpinning research

Dr Chaloka Beyani has conducted extensive research on international human rights protection, and especially the protection of the human rights of persons displaced within states, i.e. internally displaced persons (IDPs). His ground-breaking 2000 monograph [1] on the subject contained practical proposals for applying international human rights standards to internal movement, including policies on freedom of movement and choice of residence within states, the general regulation of movement within states, and the internal movement of minorities and indigenous groups who are vulnerable to displacement. Beyani’s proposals initially were treated with some suspicion, not least because they cut across some of the standard policies on the international movement of persons (including refugees) between states. But over the last decade or so, Beyani’s analysis and arguments have become highly influential in shaping the policies of various states, especially in Africa, on the protection of IDPs.

Beyani’s research led to his appointment in 2005 as the African Union Expert to draft and negotiate the adoption of the 2009 African Union Convention for the Protection and Assistance of IDPs (the Kampala Convention). This was the first instrument of its kind in the world, prompted by massive displacement in the Great Lakes Region and the effects of the genocide in Rwanda. As Legal Advisor, Beyani drafted the entire 2006 Great Lakes Pact on Peace, Stability and Development, with 11 peace treaties under it [2], including the first legally binding treaty on Protection and Assistance to IDPs. After completing this work, in 2010 he was appointed by the United Nations (UN) as the Special Rapporteur and envoy of the Human Rights Council to promote, mainstream, and devise measures for the international protection of IDPs all over the world. UN Special Rapporteurs are independent experts tasked with investigating, researching, and giving technical advice on how to improve human rights situations.

Beyani’s research has demonstrated that although freedom of movement is a fundamental liberty, international and domestic legal interpretations of this right are often premised on a model of protection which does not recognise IDPs as bearers of the full panoply of human rights and freedoms [1]. His subsequent studies have also shown how it is possible to extend the protection of national and international norms to IDPs while reconciling it with a state’s claims to sovereignty as the primary basis for protecting citizens, including IDPs. This was put into effect in his work on the Great Lakes Pact [3] and in the African Union Convention, which he was invited to draft [4].

The research investigations he undertook for the African Union and UN [5] have provided the foundation for the work he has undertaken in advising the Governments of South Sudan and Ethiopia, especially in preparing, drafting, and negotiating the adoption of innovative legislation for the protection and assistance of IDPs in these countries. Beyani’s earlier studies had revealed the inadequacy of existing legislation, showing how it lacked the breadth and depth required to address the specific rights-based needs of IDPs.

With respect to South Sudan, Beyani drew on research conducted in November 2013 when on an official mission as UN Special Rapporteur on the human rights of IDPs [6] [7]. Here, Beyani’s research found an absence of adequate capacity and institutional preparedness to prevent and respond to internal displacement in the short, medium, and longer term. A key recommendation of this research was the institution of a comprehensive policy framework for South Sudan: “in reconsidering the primary responsibility of the Government of South Sudan to assist and protect internally displaced persons, the Special Rapporteur strongly urges civilian authorities…to plan and implement a process leading to the establishment of a comprehensive policy framework on internal displacement in accordance with regional and international standards and drawing from the guidance of the [Great Lakes] Pact” [7].

The research highlighted the urgent need for prevention of internal displacement, noting how the protection challenges faced by IDPs in South Sudan resulted from complex and overlapping drivers of conflict. Many IDPs were repeatedly displaced due to a variety of compounding causes, such as inter-communal violence, security concerns, and natural disasters. The human cost of this conflict is immense, characterised by human rights violations, the targeting of civilians by armed groups, and the forced displacement of civilians.

3. References to the research

[1] Beyani, C. (2000). Human Rights Standards and the Free Movement of People within States. Oxford University Press. ISBN: 9780198268215.

[2] Beyani, C. (2007). Introductory Note on the Pact on Security, Stability and Development in the Great Lakes Region 2006. International Legal Materials, 46(1), pp. 173-175. Available at: http://eprints.lse.ac.uk/2429/

[3] Beyani, C. (2013). Collected Essays on the Use of International Law. London: Cameron May. ISBN: 9781907174124.

[4] Beyani, C. (2006). The Elaboration of a Legal Framework for the Protection of Internally Displaced Persons in Africa. Journal of African Law, 50(2), pp. 187-197. DOI: 10.1017/S0021855306000155.

[5] Beyani, C. (2014). Report of the Special Rapporteur on the human rights of internally displaced persons. Report to the UN Human Rights Council, twenty-sixth session. A/HRC/26/33. Available at: https://digitallibrary.un.org/record/771916?ln=en

[6] Beyani, C., Baal, N., and Caterina, M. (2016). Conceptual Challenges and Practical Solutions in Situations of Internal Displacement. Forced Migration Review, 52, pp. 39-42. Available at: http://eprints.lse.ac.uk/86729/

[7] Beyani, C. (2016). Report of the Special Rapporteur on the Human Rights of Internally Displaced Persons: mission to South Sudan. Report to the UN Human Rights Council, twenty-sixth session. A/HRC/26/33/Add.3. Available at: https://digitallibrary.un.org/record/835359

Evidence of international scholars' reliance on the research published in [1] can be found in: (2011) Colum. J. Transnat. L. 690; (2010) Regent J. Int. L. 251; (2005) J. Refugee Studs 100; (2003) Chinese J. Int. L. 519.

4. Details of the impact

The central impact of the underpinning research is the drafting of significant new legislation in South Sudan and Ethiopia. In each of these countries, the legislation ratifies and implements the Kampala Convention and secures and protects the basic rights of IDPs.

South Sudan: the Protection and Assistance to Internally Displaced Persons Act 2019

In June 2019, the South Sudan Government formally adopted the draft legislation, the Protection and Assistance to Internally Displaced Persons Act 2019. This legislation was drafted by Beyani and was the culmination of a consultative process with key government, UN, civil society, and IDP stakeholders. Both the legislation itself and the consultation were informed by the underpinning research.

The Republic of South Sudan seceded from Sudan on 9 July 2011. In December 2013, violence and internal armed conflict broke out in South Sudan, leading to the displacement within Sudan of more than two million people. The conflict and the ensuing displacement took place one month after Beyani’s official mission to South Sudan to research, investigate, and compile an official report of the UN Human Rights Council on the situation of IDPs and make recommendations to address their situation [7].

In June 2014, the Human Rights Council held a meeting at which Beyani was invited to present the findings of his reports [5] [7] and engage in a clustered interactive dialogue with a selection of Member States’ delegations, including South Sudan, who spoke as a concerned country [A]. Speaking more widely on the issue of IDPs, Beyani highlighted the significance of the Kampala Convention (which had come into force just 18 months previously) in strengthening international and regional responses to such crises of internal displacement, before going on to specifically address the situation in South Sudan and reiterate the key recommendations arising from his report [7]. Delegations were alarmed by the record numbers of IDPs in the world (33.3 million in 2014) and asked how the international community could better assist the implementation of the Kampala Convention. The delegation from South Sudan spoke to accept the findings of Beyani’s report, noting that “ most of these were actually in line with the challenges faced by the country[A].

In 2018, two years after the completion of his mandate and in recognition of his previous work in the country, Beyani was invited by the South Sudan Government to advise on the ratification of the Kampala Convention, to draft the national legislation required to implement it, and to devise a framework to govern the protection and assistance of IDPs and to make provision for durable solutions [B]. He began by reviewing the Constitution and existing laws to identify specific gaps in the protection of IDPs. The major gaps identified were the lack of a law to address the protection and assistance needs of IDPs and long-term solutions for them, and the absence of a coordinating mechanism to engage a whole-of-government approach to the problem of internal displacement.

Beyani outlined two fundamental challenges to effectively legislating in this area. First, because process determines outcome, the process of preparing legislation must include procedures that seek to build consensus amongst many stakeholders, including the government, UN agencies, and the participation of the chosen representatives of IDPs. The quality and legitimacy of the proposed legislation depends on the resilience of this process since it influences its acceptance by stakeholders and, ultimately, by the government and parliament. Secondly, Beyani’s experience of the Kampala Convention indicated that the adoption of special legislative measures to protect IDPs will fail unless backed by national budgetary provision to support effective measures to save their lives, alleviate suffering, and restore lost livelihoods due to displacement.

Addressing these fundamental challenges, Beyani set out to build consensus as a foundation to law-making on IDPs in South Sudan. In August 2018, he led a workshop at which government officials, MPs belonging to the human rights and justice and internal displacement committees, UN agencies, civil society, and IDPs were brought together to discuss the critical legal and policy challenges [C]. This workshop marked the starting point for consultations with IDPs and senior government officials, helping to build their understanding of IDP law-making and enhance their knowledge base to ensure their informed and effective participation. Following the workshop there was a "validation" event for government officials to restate the importance of the process. This was crucial to fostering political will around the legislation [C].

Because of the paucity of data in South Sudan, a survey of IDPs elicited views on their situation and on the desired type and level of protection required to meet their assistance needs. This survey was administered by the UN and showed overwhelming support by IDPs for bespoke legislation. This wider consultation was critical to informing the draft law. For example, it became evident during the consultations that women are likely to face challenges in reclaiming property left behind during displacement due to their lack of documentation and due to discriminatory cultural practices. As a result, appropriate protection for women’s property rights was included in the draft law [D].

Once the wider consultations were complete, Beyani prepared a zero draft of the proposed IDP legislation, which was subsequently discussed at a high-level roundtable in September 2018. Close consultations on the draft were held with the three main ministries (Humanitarian Affairs, Security, and Justice), the Commission for Humanitarian Assistance and Disaster Management, MPs, and civil society representatives. Following these consultations, Beyani revised the draft text and presented the final draft at an official conference in February 2019 [E].

The draft legislation adapts international protection benchmarks to suit the South Sudanese context. Notable provisions include:

  • Special protection measures to safeguard housing, land, and property rights for women and children [D].

  • Recognising the challenges of achieving durable solutions in the current context, the law provides for pragmatic approaches such as area-based programming, transitional solutions, and the use of cash assistance to strengthen the resilience of communities [D].

  • Specific focus on solutions to internal displacement by providing options for return, integration in the location of displacement, or resettlement to another part of the country [D].

  • The law also establishes a fund to support its implementation, provided through the allocation of 30% of South Sudan’s national oil revenues. This will ensure that humanitarian responses and strategies for long-term solutions are funded from the country’s own resources rather than being dependent on external funding [D].

In June 2019, the South Sudan Government formally adopted the draft legislation, the Protection and Assistance to Internally Displaced Persons Act 2019 [F]. The legislation is currently with the Ministry of Justice and is expected to be enacted into legislation in 2021.This establishes the government’s legal framework enabling the exercise of its responsibility to protect and assist IDPs and their obligation to find durable solutions. Hussein Mar Nyuot, Minister of Humanitarian Affairs and Disaster Management, has hailed the significance of the new legislation: “ This is very important because South Sudan will have its own law that will govern the rights of IDPs who are our own people" [E]. The United Nations High Commissioner for Refugees (UNHCR) also welcomed the news: “ Given the pressing mass displacement challenges facing South Sudan, accession to the Kampala Convention is a significant milestone for the protection and assistance of almost two million internally displaced South Sudanese”, said UNHCR’s Assistant High Commissioner for Protection, Volker Türk [G].

The effect of this new legislation is to protect the rights of South Sudan’s 1.8 million IDPs, who often faced heightened risks of sexual and other violence during their displacement, and who had previously struggled to access their basic rights [G].

Ethiopia: Internally Displaced Persons Act 2020

The draft Internally Displaced Persons Act was officially handed over to the Ministry of Peace of the Government of Ethiopia on 12 December 2019. In February 2020, this legislation ratifying the Kampala Convention was unanimously passed by Ethiopia’s parliament. Again, this legislation was drafted by Beyani following a fully consultative process, which he also led.

After completing his work in South Sudan, in 2019 Beyani was invited by the UN and the Government of Ethiopia to undertake similar work in Ethiopia [H] [I]. Again, he was required to review the country’s Constitution and existing laws to identify specific gaps in the protection of IDPs. Similar gaps as found in South Sudan were identified, namely the lack of a law to address the long-term protection and assistance needs of IDPs, and the absence of a mechanism to coordinate a full-government approach. Beyani then began work building consensus for the new legislation in Ethiopia.

This process began with an April 2019 workshop - convened by the Ministry of Foreign Affairs and led by Beyani - which resolved that the Government of Ethiopia should ratify the Kampala Convention and immediately begin to prepare an instrument for such ratification. This entailed the domestication of the Kampala Convention by means of a national law on IDPs. Three further workshops were held in this regard. The first consultative workshop on how to make law and policy for IDPs, led by Beyani, was held in October 2019, comprising individual federal state officials responsible for IDPs. The workshop succeeded in laying out the framework for protecting IDPs in Ethiopia. A second workshop was held in December 2019, again led by Beyani, and comprised both individual state and federal government officials sponsored by the Ministry of Peace, who evaluated the draft law Beyani had prepared [J]. The final workshop, also in December 2019, validated the draft legislation and promoted its adoption by the federal government.

The draft Internally Displaced Persons Act, prepared by Beyani, was officially handed over to the Ministry of Peace of the Government of Ethiopia on 12 December 2019. The legislation contains two notable innovations:

  • It establishes new government structures, such as the Regional Inter-Ministerial Committee, to coordinate protection and assistance as well as durable solutions to IDPs at federal government-level.

  • It establishes a “whole-of-society” approach to implementing durable solutions on a comprehensive basis for IDPs, affected populations, and returning refugees who have not found a durable solution, and solutions to issues of housing, property, and land.

In February 2020, the legislation ratifying the Kampala Convention was unanimously passed by Ethiopia’s parliament and the Kampala Convention was ratified by Proclamation 1187/2020 of 13 March 2020. The UNHCR welcomed the parliament’s decision: “ This represents a significant achievement for a country that has had to recently manage massive internal displacement within its borders[K]. As with South Sudan, the effect of this legislation is to protect the rights of Ethiopia’s estimated 1.78 million IDPs - one of the world’s largest IDP populations - many of whom have been cut off from their usual support networks and livelihoods, finding themselves in dire need of humanitarian assistance [K].

Beyani’s continuing research standing has also been recognised by his appointment as member of the UN Advisory Expert Group to the UN Secretary General’s High-Level Panel on Internal Displacement in 2019 and to the UN Fact-Finding Mission on Libya 2020. The task of the High-Level Panel is to formulate solutions for IDPs to be used by the UN. The Fact-Finding Mission on Libya is mandated to investigate violations of human rights and international humanitarian law in Libya from 2016, including those of migrants and IDPs.

5. Sources to corroborate the impact

[A] Human Rights Council discusses extrajudicial and summary executions and internally displaced persons, Office of the High Commissioner of Human Rights, 12 June 2014.

[B] Supporting statement from Office of the Undersecretary, Ministry of Humanitarian Affairs and Disaster Management, Republic of South Sudan, 17 February 2021.

[C] IDP Law and Policy workshop and validation event, Juba, South Sudan, 14-16 August 2018.

[D] Beyani, C., Kulang, G. P., and Mwebi, R. (2020). The potential of South Sudan's national law on protection and assistance to IDPs. Forced Migration Review, 65, pp. 64-66.

[E] “Government receives draft IDPs legal framework”, Juba Monitor, 1 March 2019

[F] Key notes from the Minister of Humanitarian and Disaster Management, 21 June 2019; Deposition of Instrument of Ratification of the 2009 AU Kampala Convention on Internal Displacement by South Sudan, 21 June 2019; Laws of South Sudan: Protection and Assistance to Internally Displaced Persons Act, 2019.

[G] UNHCR welcomes South Sudan's accession to international convention to protect internally displaced, UNHCR UK, 14 June 2019.

[H] Supporting statement from Director General, Early Warning and Durable Solutions, Ministry of Peace, Federal Democratic Republic of Ethiopia, 22 March 2021.

[I] Supporting statement from UNHCR Representative, Office of the United Nations High Commissioner for Refugees, 22 March 2021.

[J] Ethiopia in Process to Ratify Kampala Convention, Ethiopian News Agency, 7 December 2019.

[K] UNHCR welcomes Ethiopia's ratification of Kampala Convention, UNHCR UK, 14 February 2020.

Submitting institution
The London School of Economics and Political Science
Unit of assessment
18 - Law
Summary impact type
Legal
Is this case study continued from a case study submitted in 2014?
No

1. Summary of the impact

During the REF period, Scott’s research on defamation has had a direct impact on:

  1. judicial decisions and discussion both in England and Wales and in Northern Ireland;

  2. a government Bill laid before the Scottish Parliament and draft legislation and a report published by the Scottish Law Commission;

  3. discussion papers, official reports, and draft Bills prepared by government and law commission bodies in Northern Ireland; and

  4. a report prepared by the Law Commission of Ontario, Canada.

His research has also informed the debates over proposed reforms in the Republic of Ireland and New South Wales, Australia.

2. Underpinning research

Dr Andrew Scott’s research on defamation law has analysed the tensions between individual and social interests in reputation and freedom of speech for the purpose of prescribing the means of accommodating these various principles in disparate aspects of defamation and privacy law.

His research has examined in particular:

  1. the nature and structure of the main defamation defences (especially fair comment/honest opinion and Reynolds privilege/publication on a matter of public interest);

  2. the rules concerning intermediary liability; and

  3. the common law “single meaning rule” and the potential role of “discursive remedies”.

This research has been published in academic journal articles, chapters in edited collections, chapters in the leading practitioner text on common law defamation and privacy law, and in two reports and a paper for public bodies.

  1. The research on the fair comment/honest opinion defence identified deficiencies in: (a) the structure of the statutory defence introduced in the Defamation Act 2013; and (b) the approach to distinguishing “statements of fact” from “comment” adopted by some English judges. This work is reflected in [2] (ch. 12) and [5]. The research on the public interest defence, reflected in [2] (ch. 15) and [5], concerned the question of whether the statutory defence reprised its common law antecedent or amounted to a new good-faith-based standard.

  2. The research on intermediary liability addressed the concern that liability for persons other than the primary author, editor, or publisher of defamatory material encourages unthinking censorship irrespective of the accuracy or importance of what has been published. It argued that the expansionist reading of the concept of “publication” had been a profound misstep in the law, and one that had necessitated the introduction of a complex array of mitigating defences. It offered an alternative approach that might better balance the needs of reputation and free speech in this context. This work is reflected in [3] and [5].

The research on the “single meaning rule” considered the justifications offered for this unheralded mainstay of the law. Contrary to standard appreciations, it argued that the rule has been iatrogenic in effect, multiplying, rather than ameliorating, the complexity of dispute resolution and hence the opportunity for rent-seeking by litigants and lawyers. The research argued that extra- or non-legal approaches involving discursive remedies and an associated jurisdictional bar on libel claims might better address complexity and costs in defamation proceedings. This work is reflected in [1] and [4].

3. References to the research

[1] Scott, A. (2018). “O! they have lived long on the alms-basket of words”: enhancing efficacy and reducing cost by limiting the role of law and lawyers in defamation disputes. Osgoode Hall Law Journal, 56(1), pp. 80-111. Available at: http://eprints.lse.ac.uk/91813/

[2] Parkes, R., Busuttil, G., Scott, A., Speker, A., Mullis, A., and Strong, C. (2017). Gatley on Libel and Slander (Revised 12th edition). Sweet & Maxwell. ISBN: 9780414052635. (See chapters 1, 11, 12, 15, and 22.)

[3] Scott, A. (2016). An unwholesome layer cake: intermediary liability in English defamation and data protection law. In Mangan, D. and Gillies, L. E. (Eds.) The Legal Challenges of Social Media (pp. 222-246). Edward Elgar. ISBN: 9781107123649. Chapter DOI: 10.4337/9781785364518.00025.

[4] Scott, A. (2016). “Ceci n’est pas une pipe”: the autopoietic inanity of the single meaning rule. In Kenyon, A. T. (Ed.) Comparative Defamation and Privacy Law (pp. 40-57). Cambridge University Press. ISBN: 9781107123649. Chapter DOI: 10.1017/CBO9781316402467.003.

[5] Mullis, A. and Scott, A. (2014). Tilting at windmills: the Defamation Act 2013. Modern Law Review, 77(1). pp. 87-109. DOI: 10.1111/1468-2230.12057.

4. Details of the impact

Reform debate in Northern Ireland

On the basis of the perceived strength of his scholarly and wider contributions to the debate on defamation reform in England and Wales, Scott was approached by and part-seconded to the Northern Ireland (NI) Law Commission to conduct its review of defamation. Alongside his research standing, this contribution saw him invited to contribute to equivalent reform initiatives in Scotland, Ontario (Canada), and the Republic of Ireland.

Scott has written two reports on reform of defamation law in Northern Ireland, one for the NI Law Commission [B] and one for the Department of Finance [A]. The first report was a discussion paper which the Commission put out for consultation. The second, authored after the closure of the Law Commission consultation, made recommendations for legislative change. The two reports cite, and in large measure reflect, Scott’s broader research in this area. In that context, Scott has twice given oral evidence to the NI Assembly Finance Committee (June 2014; February 2015). He has also been consulted by Mr Justice Stevens on the civil procedure dimensions of defamation reform (June 2016) and by Lord Justice Gillen on both the civil procedure dimensions of defamation reform and on related questions concerning open justice (March 2016). The latter was in the course of Lord Justice Gillen’s “Review of Civil and Family Justice in Northern Ireland”.

The second Northern Irish Report [A] set out two draft Bills for consideration by the NI Assembly. The first Bill was based on the Defamation Act 2013 as applied to England and Wales, but with strengthened protections for internet publishers and a wider honest opinion defence. The second Bill is bespoke and includes, in addition, provision for repeal of the single meaning rule and the prescription of a jurisdictional bar on claims when a publisher has issued a timely discursive remedy (correction or retraction). Both draft Bills directly reflect these elements of Scott’s research. The NI Minister of Finance confirmed in November 2020 that work to prepare a Bill on the basis of the second NI Report [A] is currently being undertaken by officials [C].

Scott has also served on the advisory boards of equivalent reform projects undertaken by the Scottish Law Commission and the Law Commission of Ontario, and he gave the keynote speech at a symposium on defamation reform hosted by the Irish Department of Justice and Equality (which published his paper and has a reform bill pending – **[G]**). The second “Northern Irish Report” [A] has been influential in each of these contexts.

Scottish Government Bill, Law Commission Report and Draft Bill, and Ontario Report

The Scottish Law Commission (SLCmsn) conducted a consultation on defamation, publishing a discussion paper (March 2016) and reporting its findings and proposing a draft bill for legislative change in November 2017 (Defamation and Malicious Publication (Scotland) Bill – **[D]**). In December 2019, the Scottish Government laid the Defamation and Malicious Publication (Scotland) Bill before the Scottish Parliament [E]; it moved on to Stage 2 consideration in late 2020. Scott submitted written evidence and gave oral evidence to the Parliament’s Justice Committee to assist its Stage 1 consideration. This evidence was liberally quoted in the Committee’s report [F], with aspects then cited in Parliamentary debate (5 November 2020).

The Law Commission of Ontario conducted a three-year study and consultation into defamation reform culminating in March 2020.

In a number of respects, the Scottish Government Bill reflects Scott’s research on defamation [E]; his research was also cited and considered frequently through both the two Law Commissions’ discussion papers and reports [D] [H] and is reflected in the Scottish Commission’s draft Bill.

Fair comment

  1. The Scottish Government Bill affirms that the basis of comment can be “reasonable belief in the underpinning facts” ( [E], s.7(8)(c)). This was previously adopted in the SLCmsn Report ( [D] below, [3.43]-[3.45] and [3.51], citing Discussion Paper at paragraphs 5.13-5.19), and reflected in s.7(3) and 7(8)(c) of the SLCmsn Bill.

The SLCmsn noted at [3.55]: “we consider this extension to be an appropriate and proportionate solution, especially to addressing the position of social media commentators. This solution seems also to sit comfortably with the notion that the defence is properly regarded as existing to protect the expression of views which are honestly held” – citing 2.28-2.34 of the Northern Irish Report [A].

This contention rests on research reflected in [5].

  1. The Scottish Government Bill ( [E], s.7(8)(b)) affirms that it should be lawful to base opinions on facts published “before or at the same time” as the opinions themselves. This contention was also reflected in s.7(3) and 7(8)(b) of the SLCmsn Bill and in its Report ( [D], [3.49] citing NILC 19 (2014) [B], at paragraphs 3.35-3.37, which is based on **[5]**).

  2. The Scottish Government Bill makes plain that the defence is applicable to inferences of fact ( [E], s.7(7)). This position was earlier reflected in the SLCmsn Report ( [D], [3.36]): “in placing the defence on a statutory footing, we recommend that the opportunity be taken to clarify that the defence is available in relation to inferences of verifiable fact…we think it desirable that the draft Bill should place this matter beyond doubt” (citing NI Report, [A], at paragraphs 2.25-2.27) – and was reflected in s.7(7) of the SLCmsn Bill.

This reflects research in [2] (ch. 12) (see also “judicial consideration”, below).

Intermediary liability

  1. The SLCmsn Report ( [D], [4.8]), while recommending that a review of defences for internet intermediaries be undertaken on a UK-wide basis, considered that “an exclusion…of the bringing of proceedings against anyone who is not the author, editor or publisher of a given statement. This is based, to a large extent, on the model recommended in the Northern Irish Report **[A]**”. The SLCmsn discussion ( [D], [4.26]-[4.33]) directly reflects the position developed in [3] and [5].

Along with an associated power to re-designate persons as a “publisher” where necessary (as proposed in Scott’s research), the aim to reduce the direct liability of intermediaries in favour of alternative approaches was reflected in s.3 of the SLCmsn Bill and is also included in the Scottish Government Bill ( [E], ss.3 and 4).

Much the same argument was made in the Ontario report ( [H], citing Scott’s research on point (pp. 74-76)), although ultimately preferring an alternative approach.

Judicial consideration

Scott’s research on defamation has been cited regularly by the High Court in both England and Wales and Northern Ireland, by the Court of Appeal in England and Wales and in Northern Ireland, and by the Scottish Sheriff’s Court. Most notably, this has included a “debate” with Mr Justice Eady on which types of inference can benefit from the honest opinion defence, judicial notice of Scott’s research on Article 8 and reputation, and judicial confirmation of Scott’s research conclusions regarding the nature of the public interest defence.

Iteration with Mr Justice Eady on “inferences of verifiable fact”

In [2] (ch. 12), Scott set forth the view that a defendant should be able to defend all “inferences of fact” based upon underpinning facts using the defence of fair comment/honest opinion: “if the ability of an audience to recognise words as comment is key, then it is not obvious why the verifiability or otherwise of the inference should be important”. In doing so, he criticised an alternative view previously deployed by Mr Justice Eady that inferences of verifiable fact fall outside the defence and can be defended only by way of proving their truth. This matter was described as a “potentially important issue” by Mr Justice Warby in Barron MP v Collins MEP [2015] EWHC (High Court of Justice) 1125 (QB) at [16]-[17] [I]. In Wasserman v Freilich [2016] EWHC 312 (QB) at [21] [J], Eady J reiterated the alternative view, whereas in Zarb-Cousin v Association of British Bookmakers [2018] EWHC 2240 (QB) at [24]-[29] [K], having propounded the general approach set out by Scott, Nicklin J stated that “asking a question of whether the statement is ‘verifiable’ is perhaps a dangerous gloss on this approach”. In Butt v Secretary of State for the Home Department [2019] EWCA (England and Wales Court of Appeal) Civ 933 at [38]-[39] [L], Sharp LJ affirmed the view set out in Scott’s research. Each of the four judges expressly referred to and/or quoted Scott’s research [2] in the course of their respective discussions on this point.

Nature of the s.4 public interest defence

In Economou v de Freitas [2016] EWHC 1853 (QB) at [237]-[239] [M], Mr Justice Warby expressly affirmed the view expressed by Scott ( [2] (ch. 15) and **[5]**) to the effect that the s.4 public interest defence should be understood as being equivalent to the common law Reynolds privilege and not a good-faith based standard similar to the US New York Times v Sullivan rule. He stated that “there is much to be said for [this] legal analysis. It seems hard to describe a belief as reasonable if it has been arrived at without care, in the absence of any examination of relevant factors, and without engaging in appropriate enquiries”. This view was expressly affirmed on appeal ([2018] EWCA Civ 2591 at [76] and [86]), and again in Serafin v Malkiewicz [2019] EWCA Civ 852 at [36] (a case which further cites Scott’s work on related themes at [35], [66] and [95]).

It is also reflected in the structure of the new public interest defence introduced in Sch.1 to the Defamation Amendment Act 2020 in New South Wales, Australia. That defence is modelled on the English s.4 statutory defence but includes a listing of additional factors that make plain the intention to emulate a Reynolds-style defence.

In sum, and in disparate ways, these impacts serve to rebalance the individual and social interests in reputation and freedom of speech reflected in defamation laws. They move largely in the direction of better valorising freedom of speech to ensure that powerful interests are less able to curtail critical speech, ultimately to secure a more open public sphere.

5. Sources to corroborate the impact

[A] Reform of Defamation Law in Northern Ireland (Belfast: Department of Finance, 2016).

[B] Defamation Law in Northern Ireland (NILC 19, Belfast: Northern Ireland Law Commission, 2014).

[C] Letter from Conor Murphy, NI Minister of Finance to Mike Nesbitt MLA, 30 November 2020.

[D] Report on Defamation (SCOT LAW COM No 248, Edinburgh: Scottish Law Commission, 2017).

[E] Defamation and Malicious Publication (Scotland) Bill 2020.

[F] Defamation and Malicious Publication (Scotland) Bill: Stage 1 Report (SP Paper 822, Scottish Parliament – Justice Committee).

[G] Scott, A. “Cascading effort in defamation reform: four key themes”, paper published by the Department of Justice and Equality (Republic of Ireland), November 2019.

[H] Defamation Law in the Internet Age (Toronto: Law Commission of Ontario, 2020).

[I] Barron MP v Collins MEP [2015] EWHC 1125 (QB).

[J] Wasserman v Freilich [2016] EWHC 312 (QB).

[K] Zarb-Cousin v Association of British Bookmakers [2018] EWHC 2240 (QB).

[L] Butt v Secretary of State for the Home Department [2019] EWCA Civ 933.

[M] Economou v de Freitas [2016] EWHC 1853 (QB).

Submitting institution
The London School of Economics and Political Science
Unit of assessment
18 - Law
Summary impact type
Societal
Is this case study continued from a case study submitted in 2014?
No

1. Summary of the impact

Professor Emily Jackson’s research, arguing that storage time limits for frozen eggs should be amended so as to not breach the human rights of “social” egg freezers, has underpinned policy interventions intended to reform the law. With direct input from Jackson, the Storage Period for Gametes Bill was introduced to the House of Lords in June 2019 and, if passed, will provide the option of extended storage for women who have not yet completed their families. Her research has also informed Timeless, an innovative public engagement campaign which has improved public awareness of egg freezing and reproductive rights.

2. Underpinning research

Professor Jackson has been carrying out research into the ethical, legal, and social implications of assisted conception techniques since the late 1990s. A key theme of her first monograph, Regulating Reproduction: Law, Technology and Autonomy [1], and of subsequent publications, has been the need to take seriously reproductive autonomy and to recognise that both infertility and its treatment are stressful and difficult, and that prospective patients and their partners need help and support in order to make sense of their options.

Jackson’s recent research has focused on the commercialisation of assisted conception services. Most fertility treatment in the UK is provided in the private sector and has become “big business”. In addition to the strain of infertility, patients are often also under considerable financial pressure and, as a result, may be willing to try anything in order to increase their chance of success. It is recognised that fertility clinics can oversell and overtreat, perhaps by offering services for which the evidence base is either poor or non-existent. As well as the risk of overselling, the new option of “social” egg freezing for women concerned about their age-related fertility decline raises important ethical and legal issues. Perhaps most pressing, as it is currently causing real hardship, is the question of the storage time limits for frozen eggs.

In her 2016 Journal of Medical Ethics article [2], Jackson raised, for the first time in the literature, the unfairness of the statutory storage time limits when applied to social egg freezers. The Human Fertilisation and Embryology Act 1990, as amended, set a ten-year limit for the storage of embryos and gametes. Regulations passed in 2009, before developments in vitrification techniques meant social egg freezing became a routine clinical option, allow for the possibility for extended storage, up to a maximum of 55 years, for patients who are, or are likely to become, “prematurely infertile”. This works well for men who freeze their sperm because they are about to undergo medical treatment which may leave them infertile. Women’s age-related fertility decline is not “premature” infertility, and hence most social egg freezers are ineligible for an extension and can store their eggs for ten years only. If a woman froze her eggs at age 25, she would face their mandatory destruction at 35, before she is likely to want to use them.

These rules were not drafted with the interests of egg freezers in mind, and Jackson argues that they are – unintentionally – contrary to their interests and to good clinical practice, as well as representing a breach of their human rights. First, the rules create an incentive for women to freeze their eggs in their late 30s, after their fertility is already in decline. If a woman in her late 30s freezes her eggs, she may have until her late 40s to use them, but she is likely to need to undergo more cycles of egg retrieval in order to have a sufficient number of eggs to freeze. Second, if a woman struggles to conceive after her own eggs were destroyed, she will be advised to use donor eggs. Not only is the unnecessary use of donor eggs likely to be contrary to the egg freezer’s wishes, it will also cost more and pointlessly expose the donor to the risks of an invasive procedure. Third, the forced destruction of a person’s gametes undoubtedly represents an interference with her Article 8 right to private and family life. In order to be justifiable under Article 8(2), it would have to be established that the ten-year limit, with no extension for social egg freezers was “necessary in a democratic society” either “for the protection of health or morals, or for the protection of the rights and freedoms of others”. It is impossible to see how permitting time-limited extensions to the storage of eggs to ensure that women can use own their frozen eggs in their 40s would pose a risk to the rights of others, or to “public safety” or “health and morals”.

The solution, Jackson argues, is not to get rid of the storage time limit altogether. There is evidence that former patients find it difficult to make decisions about their stored gametes and embryos and, without a time limit, clinics might be obliged to store them indefinitely. Instead, the solution is to amend the Human Fertilisation and Embryology (Statutory Storage Period for Gametes and Embryos) Regulations 2009, by providing an option for extension for women who have not yet decided whether they want to use their frozen eggs in treatment.

In her 2018 Biosocieties article [3], Jackson tackled some of the broader ethical issues raised by social egg freezing. This article described egg freezing as an ambiguous technology. Looked at positively, it could be said to liberate women from the biological constraint of age-related fertility decline. More sceptical commentators have suggested that it represents a medical solution to a social problem, that it reinforces motherhood as women’s essential destiny and widens the gap between rich and poor women’s experiences of childbearing. Jackson argued that while providing women with more options is positive, at the same time, women need clear and robust advice about the likelihood that they will use their eggs in the future, and the fact that IVF fails more commonly than it succeeds. Egg freezing is expensive and invasive, and it is important that it is not oversold to women as a guaranteed way to preserve their fertility indefinitely.

3. References to the research

[1] Jackson, E. (2001). Regulating Reproduction: Law, Technology and Autonomy. Hart/Bloomsbury. ISBN: 9781841130545. Winner of the 2002 Society of Legal Scholars’ annual book prize.

[2] Jackson, E. (2016). "Social" egg freezing and the UK's statutory storage time limits. Journal of Medical Ethics, 42(11), pp. 738-741. DOI: 10.1136/medethics-2016-103704.

[3] Jackson, E. (2018). The Ambiguities of “Social” Egg Freezing and the Challenges of Informed Consent. Biosocieties, 13, pp. 21-40. DOI: 10.1057/s41292-017-0044-5.

[4] Jackson, E. (2019). Medical Law (5th edition). Oxford University Press. ISBN: 9780198825845. Winner of the British Medical Association “Basis of Medicine” Book Award (for the 4th edition).

4. Details of the impact

This research [2] [3] has formed the basis of Jackson’s contribution to policy interventions intended to effect a change to the law, and so provide women with the option to extend the storage of their eggs. It has also underpinned her involvement in the Timeless project, which used novel public engagement techniques to communicate accurate information about egg freezing and improve awareness of fertility issues more generally.

Reforming the law on the storage time limit

Since 2018, Jackson has been actively involved in a campaign to change the law on gametes storage periods, working closely with Baroness Ruth Deech, former Chair of the Human Fertilisation and Embryology Authority, lawyers from Bindmans (who are acting for women bringing an application for judicial review of the time limit on human rights grounds), and the Progress Educational Trust. With direct contributions from Jackson, Baroness Deech introduced the Storage Period for Gametes Bill to the House of Lords, which requires the government to consider amending current regulations to permit the extension of the storage period for those who have not completed their family. The government has since launched a public consultation.

Baroness Deech first asked the question of what plans the government had to review the 10-year limit in the House of Lords on 12 July 2018 [A]. At that point, it was not clear whether a change to storage limits would require primary legislation. Jackson advised that, as the option to extend the limit in cases of premature infertility is already set out in the 2009 Regulations, to add another option for extension could be done through amending the same Regulations, obviating any need for primary legislation [B]. Regulation-making powers exist precisely to allow legislation to respond to new scientific developments such as improved vitrification techniques, in this case.

In September 2018, Baroness Deech moved for a debate in the House of Lords to mark the 40th anniversary of In Vitro Fertilisation (IVF). Ahead of this debate, Jackson provided a parliamentary briefing note to be distributed to peers, outlining the background, rationale, problems, and proposed solutions for the current gametes storage limit. During the debate, Baroness Deech argued for urgent review of the storage limit, citing the possible breach of human rights law previously identified by Jackson [2]: “ The regulations as they stand are discriminatory and may be contrary to Article 8 of the European Convention on Human Rights because sperm can be stored for 55 years[A].

As well as advancing the issue in parliament, Baroness Deech also made representations to the Department of Health and Social Care in autumn 2018. In correspondence with Jackie Doyle-Price MP, Parliamentary Under Secretary of State at DHSC, Baroness Deech sought Jackson’s input, including in a detailed response to the minister’s initial letter, outlining the problems with the current storage limit and its inducements to poor clinical practice, as first described in [2], and also appending a simple suggested draft regulatory change [B].

In February 2019, Baroness Deech again raised the matter of the 10-year storage limit in the Lords, this time explicitly asking whether the government had plans to review its compliance with human rights law. Speaking in the debate, Baroness Deech asked: “ *Will the Government not enact a simple regulatory change, costing nothing, which will end this interference with private and family life under human rights law - and the indirect discrimination - and give hope to thousands of women?*” [A]. Baroness Deech has subsequently confirmed the importance of Jackson’s research to this intervention: " it was Prof Jackson who clarified that the law was discriminatory when compared with the storage limit of sperm, and that it was likely to face a human rights law challenge...Her authority as a former member of the Human Fertilisation and Embryology Authority is acknowledged and preeminent" [B].

Shortly after this debate, Baroness Deech began the process of introducing a Private Member’s Bill to effect the amendment of the storage limit in the 2009 Regulations. Jackson was again consulted and provided recommendations on the drafting of the crucial amendment to Regulation 4. This included a provision introducing a new exception to the 10-year limit, in respect of any person to have provided a gamete who “ has expressed that they have not yet completed their family[C]. This is consistent with an alternative approach outlined in the Jackson research [2]. This, crucially, provides for those women who wish to freeze their eggs for social reasons at a time of relatively high fertility, and brings them into parity with those likely to become prematurely infertile, negating the human rights implications. Again, Baroness Deech has attested to the value of Jackson’s expertise in the drafting of this Bill: " [Jackson's] drafting was far superior to anything I might have obtained from counsel because of her unrivalled knowledge of the law and clarity in explaining it" [B].

The Bill introduced to the House of Lords by Baroness Deech on 6 June 2019 [C] also contained a requirement for DHSC to open a consultation. The Gamete and Embryo Storage Limits Consultation - initially delayed by recess, prorogation, and purdah - was launched on 11 February 2020 [D]. Speaking about the consultation to the BBC, Caroline Dinenage, a DHSC minister, said she was “ particularly concerned by the impact of the current law on women's reproductive choices" [E]. Indeed, within the consultation document itself the government acknowledges having been “ persuaded that there is a case to consider a change to the legislative framework” and that there are “ important arguments to consider about reproductive choice for women and how the current legislation may affect that[D].

Alongside these legislative efforts, the Progress Educational Trust (PET), a UK charity working to advance public understanding of, and engagement with, science, law, and ethics in the fields of human genetics, human reproduction, embryology, and stem cell research, has been spearheading a parallel advocacy campaign. PET published a press release to coincide with the Bill, urging the government to seize the opportunity and act quickly, and directly quoting Jackson when setting out the arguments in favour of amending the Regulations to give an option for extension to women who have frozen their eggs [F].

On 28 October 2019, to coincide with National Fertility Awareness Week, PET formally launched its #ExtendTheLimit campaign, reiterating its plea to government to extend the storage limit for non-medical (social) reasons. PET director, Sarah Norcross, articulating why the current legislation is unfair, again drew attention to the human rights implications first raised by Jackson [2]: “ The 10-year storage limit for social egg freezing is a very clear breach of human rights: it curtails women's reproductive choices, harms women's chances of becoming biological mothers, does not have any scientific basis (eggs remain viable if frozen for longer than ten years), and is discriminatory against women because of the decline in female fertility with age" [F].

Speaking as the public consultation was launched, Norcross welcomed the government’s action and the importance of the progress made to date: “ This is of huge significance for many women, not just those who have frozen their eggs, but women who are considering doing so. [Extending the storage limit] will enable women to exercise reproductive choice, freeing women from the shackles of an outdated, discriminatory, and unscientific law" [F]. Indeed, egg freezing cycles have increased precipitously (by 256% from 2012 to 2017) and this removal of limitations encourages more women to avail of the option and reestablishes their reproductive autonomy. It also ends the costs and waste of mandatory destruction and serves to reduce the frequency donor eggs are required. Norcross has subsequently underlined the importance of the Jackson research to the #ExtendTheLimit campaign:

"Her writing on the inequity of the ten-year limit on social egg freezing is one of the key foundation stones upon which the materials for our campaign have been built. Prof Jackson has been involved in the campaign from the outset, advising on the law, [and] drafting documents and letters to be sent to government ministers…She has provided robust legal opinion which we have shared with DHSC. Her contribution has helped PET attract and retain government interest in this issue at the highest level." [G]

In April 2020, in the wake of the Covid-19 pandemic, all fertility treatment in the UK was suspended. Those people for whom the 10-year limit was imminent when treatment was suspended were faced with the distressing prospect of seeing their gametes or embryos mandatorily destroyed, before these gametes or embryos could be used in treatment. To address this, the government introduced new Regulations, which came into force on 1 July 2020, granting a temporary two-year extension to the 10-year legal limit. Coverage of this announcement cited the #ExtendTheLimit campaign. Jackson has provided advice to those who were and were not able to take advantage of this [B].

In September 2020, the Nuffield Council on Bioethics published a policy briefing on egg freezing in the UK in response to increased interest in the topic and the ongoing Government review. Jackson's research [2] [3] was cited five times and she was also personally acknowledged [H]. This will be used by Nuffield to brief parliamentarians, respond to consultations, and in direct engagement with policymakers. The policy briefing concluded that " there are few arguments against increasing storage limits for social egg freezing", describing the way social egg freezing is presented and marketed as potentially concerning and meriting closer attention [H].

Baroness Deech has been unequivocal in describing the indispensability of the Jackson research to progress made towards reforming the law on the storage time limit:

"[Jackson] has masterminded the plan of action to change the law, and she is undoubtedly the leading reproductive medicine lawyer of this generation. She has demonstrated a combination of scholarship and practical action, putting that scholarship to use in order to benefit the thousands affected by the law. I have the greatest admiration for her work and her powers of persuasion, and she deserves the highest recognition." [B]

Improving public awareness of egg freezing and reproductive rights

In March 2016, Jackson was an advisor to the Timeless project, created to inform and engage women in thinking about their options in relation to social egg freezing and fertility, whilst also raising public awareness about a topic that could have a significant impact on women and society in the future. Designed by creative consultancy The Liminal Space, with additional research expertise from Professor Anne Phillips (LSE) and Dr Yacoub Khalaf (Assisted Conception Unit, Guy's and St Thomas' Hospital), Timeless was a fictional beauty brand created to engage and educate the general public on the legal, ethical, and social issues raised by egg freezing.

A novel output of this project was a pop-up “shop” in Old Street Underground Station, London. The shop featured a range of Timeless-branded beauty products intended to communicate the facts around egg freezing in a visually arresting way and inform women of, for instance, the chances of social egg freezers using their eggs in future or the varying likelihood of success in fertility. For example, the Eau so Pressured perfume range dramatically illustrated women’s declining ovarian reserves with a number of bottles corresponding to a woman’s age from 12 to 50, each filled with red fluid proportionate to her remaining quantity of eggs. Drawing on research described in [3], Jackson contributed to the short film shown at the shop - and promoted alongside other “products” on the website - and was a panellist for an on-site event, “Should You Freeze Your Eggs?”, which intended to cut through the confusion and misinformation surrounding egg freezing and look frankly at the pros and cons from a medical, social, and personal perspective. Ipsos MORI conducted a series of in-depth interviews intended to establish how effective the pop-up shop approach had been in fostering dialogue with the public about this ethically and practically complex issue. Interviews revealed that attitudes towards family and careers are changing, and that it was felt that policy and legal structures should also change to keep up [I]. The project was found to be a " good way to kick-start public dialogue and bring home abstract ideas to people's everyday reality" [I].

More than 1,200 people visited the shop, with approximately 5,000 accessing the Timeless website during the same time. The project was the subject of 54 pieces of media coverage, with a reach of 11.8 million people across print, radio, and TV, and over 335,000 online [J], including an Observer Magazine cover feature and live broadcasts on BBC Radio and Sky News. In the New Scientist, Agatha Haines hailed Timeless as a good beginning to addressing the knowledge gap on this subject: “ this pop-up provocation provided women with an opportunity to discuss an intimate issue in an intimate setting. Time spent here showed me how to think about an idea whose revolutionary promise is matched only by the dearth of public information about it[K]. BioNews, which specialises in news and comment on genetics, assisted conception, embryo/stem cell research, and related areas, described it as “ informative, and the idea behind it was original and fun, making the shop well worth the visit” [L].

5. Sources to corroborate the impact

[A] Hansard, House of Lords debates on Human Fertilisation and Embryology: 12 July 2018; 13 September 2018; and 20 February 2019.

[B] Supporting statement from Baroness Ruth Deech, 8 October 2020.

[C] Storage Period for Gametes Bill [HL] 2017-19, introduced 6 June 2019.

[D] Department of Health and Social Care, Consultation document: gamete (egg, sperm) and embryo storage limits, 11 February 2020.

[E] " Frozen-egg storage 10-year limit 'could be extended'", BBC News, 11 February 2020.

[F] Progress Educational Trust press releases: 19 June 2019; 28 October 2019; and 11 February 2020.

[G] Supporting statement from Sarah Norcross, Director, Progress Educational Trust, 6 October 2020.

[H] Bioethics Briefing Note: Egg freezing in the UK, Nuffield Council on Bioethics, 30 September 2020.

[I] “Fertile thoughts: how a pop-up shop can bring egg freezing to life and engage the public in dialogue”, Ipsos MORI, April 2016.

[J] Timeless, a case study report, The Liminal Space, February-March 2016.

[K]Pop-up show apes beauty brands to highlight egg-freezing issues”, New Scientist, 9 March 2016.

[L]Event Review: Timeless pop-up shop”, BioNews, 14 March 2016.

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