Browne Jacobson LLP Administrative and public law seminar - October 2017 This seminar explores GDPR, Brexit and a judicial review workshop.

1. Administrative and public law
October 2017

2. Administrative
and public law
4 October 2017,
London
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3. Agenda
• 1.30pm – Introduction and welcome
• 1.40pm – GDPR
• 2.40pm – Brexit
• 3.00pm – coffee break
• 3.20pm – Brexit
• 3.50pm – case study
• 4.50pm – any questions
• 5.00pm – drinks and canapés

4. General Data Protection Regulation
Dmitrije Sirovica

5. Today’s focus
• Briefing on the new law
• Exploring the role of the Data Protection
Officer
• Steps towards compliance

6. Background to the GDPR

7. GDPR background
• What is it?
• Why is it coming in?
• What about Brexit?

8. What is it?
• Probably the most lobbied piece of EU law ever
• Replaces the Data Protection Directive 1995 (DPD)
• Will be enforced in Member States from 25 May
2018
• EU Member State laws implementing the DPD will
no longer apply
• Creates a “level-ish” playing field across EU

9. Why the change?
Developments
• Legal
• Societal
• Technological

10. What about Brexit?
• GDPR will apply from May 2018 to Brexit
• After Brexit
– GDPR will apply to many UK organisations due to
extra-territorial scope
– GDPR will be swept up by the EU (Withdrawal) Bill
2017
– Government wishes to “maintain the stability of
data transfer between EU Member States and the
UK”
– Adequacy or essential equivalence

11. Data Protection Bill
• What is it?
• Released on 14 September 2017
• Supplemental to GDPR

12. The Regulation

13. Who has to comply?
• Data controller or data processor established in one
or more Member State(s)
• Data controller or data processor established
outside the EU and either it
– offers goods and services to data subjects in the
EU or
– monitors the behaviour of data subjects in the
EU

14. Key issues
• Principles and accountability
• Lawful basis for processing
• Transparency
• Responsibilities of controllers and processors
• International transfers
• Rights of data subjects
• Breach notification
• Enforcement and compensation

15. Personal Data
“means any information relating to an identified or identifiable
natural person (‘data subject’)
An identifiable natural person is one who can be identified, directly or
indirectly, in particular by reference to an identifier such as a name, an
identification number, location data, an online identifier or to one or
more factors specific to the physical, physiological, genetic, mental,
economic, cultural or social identity of that natural person;”
This means that an IP address or roll number can amount to
personal data

16. Special Categories
Article 9 now refers to “Special Categories of Personal Data”
rather than Sensitive Personal Data. This category includes
personal data revealing :
• racial or ethnic origin,
• political opinions,
• religious or philosophical beliefs, or
• trade union membership, and
• the processing of genetic data, biometric data for the purpose of uniquely
identifying a natural person,
• data concerning health or
• data concerning a natural person's sex life or sexual orientation

17. Processing
will mean “any operation or set of operations which is
performed on personal data … whether or not by automated
means, such as collection, recording, organisation,
structuring, storage, adaptation or alteration, retrieval,
consultation, use, disclosure by transmission, dissemination
or otherwise making available, alignment or combination,
restriction, erasure or destruction;”

18. Principles
The GDPR requires:
(a) Data to be processed lawfully, fairly and in a transparent manner;
(b) Data to be collected for specified, explicit and legitimate purposes and not
further processed in a manner that is incompatible with those purposes;
(c) Processing of data should be adequate, relevant and limited to what is necessary
in relation to the purposes for which they are processed;
(d) Data to be accurate and, where necessary, kept up to date; inaccurate data should
be erased or rectified without delay;
(e) Data to be kept in a form which permits identification of data subjects for no
longer than is necessary for the purposes for which the personal data are
processed;
(f) Data to be processed in a manner that ensures appropriate security of the personal
data, including protection against unauthorised or unlawful processing and against
accidental loss, destruction or damage, using appropriate technical or
organisational measures.
The data controller will be responsible for, and must be able to demonstrate,
compliance with these principles as well as accountability.

19. Accountability is the key
• Registration abolished
• Implement compliant policies and procedures
• Data Protection Officer mandatory for public
bodies
• Privacy by design and by default
• Privacy impact assessments

20. Lawful basis for processing
In order for Personal Data to be processed lawfully you must be able to satisfy one of
the processing conditions below:
• 6(1)(a) – Consent of the data subject (must be clear affirmation)
• 6(1)(b) – Processing is necessary for the performance of a contract with the data
subject or to take steps to enter into a contract
• 6(1)(c) – Processing is necessary for compliance with a legal obligation
• 6(1)(d) – Processing is necessary to protect the vital interests of a data subject or
another person
• 6(1)(e) – Processing is necessary for the performance of a task carried out in the
public interest or in the exercise of official authority vested in the controller
• 6(1)(f) – Necessary for the purposes of legitimate interests pursued by the
controller or a third party, except where such interests are overridden by the
interests, rights or freedoms of the data subject (this last one does not apply to
public authorities)

21. Lawful basis for processing
special categories
In order for special categories of data to be processed lawfully you must be able to satisfy one of
the following conditions below:
• 9(2)(a) – Explicit consent of the data subject, unless reliance on consent is prohibited by EU or
Member State law
• 9(2)(b) – Processing is necessary for carrying out obligations under employment, social security
or social protection law, or a collective agreement
• 9(2)(c) – Processing is necessary to protect the vital interests of a data subject or another
individual where the data subject is physically or legally incapable of giving consent
• 9(2)(d) – Processing carried out by a not-for-profit body with a political, philosophical, religious
or trade union aim provided the processing relates only to members or former members (or
those who have regular contact with it in connection with those purposes) and provided there is
no disclosure to a third party without consent
• 9(2)(e) – Processing relates to personal data manifestly made public by the data subject
• 9(2)(f) – Processing is necessary for the establishment, exercise or defence of legal claims or
where courts are acting in their judicial capacity

22. Lawful basis for processing
special categories
9(2)(g) – Processing is necessary for reasons of substantial public interest on the basis
of Union or Member State law which is proportionate to the aim pursued and which
contains appropriate safeguards
9(2)(h) – Processing is necessary for the purposes of preventative or occupational
medicine, for assessing the working capacity of the employee, medical diagnosis, the
provision of health or social care or treatment or management of health or social care
systems and services on the basis of Union or Member State law or a contract with a
health professional
9(2)(i) – -relates to public interest in the area of public health
9(2)(j) – Processing is necessary for archiving purposes in the public interest, or
scientific and historical research purposes or statistical purposes in accordance with
Article 89(1)

23. Consent and explicit consent
• Consent
Any freely given, specific, informed and unambiguous
indication of the data subject’s wishes by which he or
she, by a statement or by a clear affirmative action,
signifies agreement to the processing of personal data
relating to him or her
• Explicit consent
• Re-papering consents - recital 171
• ICO draft guidance
• Article 29 WP guidance

24. Rights of Data Subjects

25. Rights
• Information about processing
• Subject access
• Rectification
• Erasure (right to be forgotten)
• Data portability
• Objection
• Automated decision making and profiling
• Restriction

26. Subject Access
• Currently 40 day time limit
– Reduced to one month under GDPR
– Review processes for handling requests
• No fee
• Supplemental information
• Manifestly unfounded or unreasonable requests

27. Data Processors

28. New responsibilities for Data
Processors
• Direct legal obligations
• Penalties and liabilities
– Compensation
– Sanctions

29. What do Data Processors need to
do?
• Have a contract with data controllers
• Get data controller’s consent before sub-contracting
• Maintain records of processing
• Cooperate with ICO
• Maintain internal data protection and retention policies

30. What do Data Processors need to
do?
• Maintain appropriate technical and organisational
measures to protect the data
• Notify of data breaches
• Check privacy practices
• Appoint a DPO if required
• Check whether any data is sent outside the EEA

31. Data Sharing

32. Data Sharing
• Police
• Social services
• Other local authorities
• Education establishments
• Health bodies
• Government departments
• Data Sharing Agreements

33. Article 28 GDPR
Processing by a processor must be governed by a
contract that is binding on the processor with regard
to the controller and that sets out the subject-
matter and duration of the processing, the nature
and purpose of the processing, the type of personal
data, categories of individuals whose data is being
processed and the obligations and rights of the
controller.

34. Article 28 GDPR
• Contracts must stipulate that the processor will:
– Process only on documented instructions
– Ensure those processing personal data are under a confidentiality
obligation
– Take all measures required by Article 32 GDPR
– Only use sub-processors with controller’s consent
– Assist the controller in responding to requests
– Assist the controller in complying with obligations relating to security,
breach notification, impact assessments and consulting with supervisory
authorities
– Delete or return all personal data at the end of the agreement
– Make available to the controller all information necessary to demonstrate
compliance; allow and contribute to audits, and inform the controller if its
instructions breach the law

35. Third party relationships
• Assess third party relationships
• Appropriate contracts and controls
• Undertake due diligence and audits

36. Data Protection Officers

37. Data Protection Officers
• You should designate a DPO
• Responsible for data protection compliance
• Inform and advise the authority
• Monitor the implementation and application of the
Regulations and the data protection policies
• Monitor privacy impact assessments and breaches
• Point of contact for ICO

38. Data Protection Officers
• Can allocate to role of existing employee as long as
duties are compatible with the duties of the DPO and
do not lead to conflict of interests
• Can appoint the role externally
• Can share a DPO
• No specified qualifications but must have experience
and knowledge of data protection law

39. Data Protection Officers
You must ensure that:
• The DPO reports to the highest management level of
your organisation
• The DPO operates independently and is not
dismissed or penalised for performing their task
• Adequate resources are provided to enable DPOs to
meet their GDPR obligations

40. Data Breaches

41. Breach notification
• Personal data breach
• Controller breach notification – 72 hours
– Supervisory Authorities
– Affected individuals
• Processor breach notification – without undue delay
– Controller

42. Sanctions for non-compliance
• Supervisory Authorities
– Investigative powers
– Corrective powers
• Penalties
– 2% global turnover or €10m
– 4% global turnover or €20m
• Compensation

43. Next Steps

44. Compliance culture
• Senior leadership level issue
• Accountability
• Training and awareness

45. Turning the law into practice
• Map the law to your processing
• Identify key data processing
• Identify high-risk processing
• Identify gaps
• Mitigate the risks

46. The team
• Senior leadership level oversight
• Legal
• Compliance
• IT
• HR
• Marketing/Communications
• External advisers

47. The plan
• Initiation
– Awareness
– Buy-in
– Budget
• Assessment
– Mapping
– Gap analysis
• Remedy

48. Data mapping
• Review and record in writing all processing
activities
• Record any international transfers and mechanism

49. Data mapping
• The 5 Ws
– Why is personal data processed?
– Whose personal data is processed?
– What personal data is processed?
– When is personal data processed?
– Where is personal data processed?
• Questionnaire
• Produce a risk based report

50. Securing data and information
• Assess security risk
• Update information security and policy
• Maintain security measures

51. What assistance might you
require?
• End to end GDPR reviews
• Scoped assistance
• Ad hoc advice
• Steering group representation

52. Questions?

53. Contact us…
Dmitrije Sirovica – 0115 976 6238
dmitrije.sirovica@brownejacobson.com

54. Brexit – ‘The Repeal Bill’
Laura Hughes

55. Where have we got to?
• 29 March 2017 - government issues notice to the
European Council of the UK's intention to leave the
EU under Article 50 of the TEU
• 30 March 2017 - government publishes its Repeal
Bill White Paper

56. • 21 June 2017 – Queen’s Speech proposes Repeal bill
and 7 other Brexit related bills
• 13 July 2017 – Repeal Bill introduced and gets first
reading in parliament

57. • 7 and 11 September 2017
– Bill passes second reading in Parliament
– Ministers' amendments tabled
• 19 September 2017 - First Ministers of Wales and
Scotland publish joint proposed amendments to the
Bill and accompanying statement on devolved
legislative consent

58. The 8 Brexit Bills
• Repeal Bill
• Customs Bill
• Trade Bill
• Immigration Bill
• Fisheries Bill
• Agriculture Bill
• International Sanctions Bill
• Nuclear Safeguards Bill

59. The European Union
(Withdrawal) Bill 2017
• Otherwise known as the “Repeal” or the “Great
Repeal Bill”
• Bill and Explanatory note
– Both just over 60 pages long - to deal at least 5,000
regulations directly applicable to the UK
• So how does the bill work? ….

60. Clause 1 - Repeal of the ECA
1972
• “Exit day”
• End to the ‘supremacy of EU law’
– But note supremacy of retained EU law over other
legislation
 Clause 5
 Clause 2(3), 3(5) and 4(3)

61. Retaining EU Law (1)
• EU-derived domestic legislation (clause 2)
• Direct EU legislation (clause 3)

62. Retaining EU Law (2)
• Treaty rights (clause 4)
• But - Exceptions in clause 5
– Supremacy of EU Law
– Charter of Fundamental Rights

63. Problems ahead: Clause 4, a
decision yet to be made?
• Clause 4 – Saving of Rights under s.2(1) of the ECA
• But what is actually preserved?
– Option 1: Legislation read as UK no longer a member
- savings almost entirely inapplicable
– Option 2: Legislation read as if UK still a Member -
But major issues with reciprocity.

64. Retained EU Law (3)
• Retained case law (clause 6)
• Retained general principles of EU law (clause 6)

65. Retained EU Law (4)
• Interpretation
– Status of Post-exit CJEU decisions
– Limits to EU law based claims
– Pending CJEU cases on exit day

66. Ministerial powers (1)
• Henry VIII Clauses (Clause 7)
– Power to make regulations in relation to retained EU
law where there are:
 Failures to operate effectively; or
 Deficiencies

67. Ministerial Powers (2)
• Delegation of powers to public authorities (clause
7)
– Power for PAs to exercise functions of EU authorities
– Power to establish new public authorities

68. Devolution
• Power to make regulations
• Sewel Convention

69. Scottish and Welsh amendments
• Jointly published amendments
– Ensure devolved policy areas come back to the Scottish Parliament
and National Assembly of Wales on withdrawal from the EU.
– Prevent UK ministers unilaterally changing the Scotland Act and
Government of Wales Act.
– Require the agreement of the Scottish Government on necessary
changes to current EU law in devolved areas after Brexit.
– Ensure additional restrictions are not placed on devolved ministers
compared with UK Government ministers.

70. Repeal in practice – Environment
• Examples of potential areas of concern
– Henry VIII powers to change policy
– Underpinning principles
– Governance and Enforcing Institutions
– Devolved Government

71. Repeal in practice - Farming
• What will be dealt with in the Agriculture Bill?
• The CAP
• Tariffs/Trade
• Labour
• Devolved issues
• Transitional Arrangements

72. Repeal in practice - Health
• EU Working time directive
• Professional Regulation
• Staffing
• Reciprocal Healthcare

73. Any questions?

74. Contact us…
Laura Hughes – 0115 976 6582
laura.hughes@brownejacobson.com

75. Admin Law Seminar 4 Oct 2017
Case Study
Richard Barlow, Ben Standing and Will
Thomas

76. CASE STUDY
• The Administrative Affairs Agency
• Established by Administrative Affairs Act 2010
• The Agency is introducing a new licensing
application system for drones
• The Agency proposes to enter into a contract with
Super Hightech Innovative Technology PLC
• You are asked to advise on the public law issues
which impact upon whether or not to execute the
contract

77. Issues Arsing from the Case Study
• The obligation to consult in relation to public decision-
making
• The principle of legitimate expectation
• The rule against bias or pre-determination
• The “duty” to give reasons
• The need for the person or body with appropriate
authority (either from statutory provisions or through a
lawful delegation) to make a public decision

78. Grounds: Consultation
• Common ground for judicial review
• Government has produced guidance on consultation. This guidance
is best practice, not legally binding see:
https://www.gov.uk/government/publications/consultation-
principles-guidance
• However, an express legal duty to consult can exist, for example:
– Legislation, e.g. s.5D of the Childcare Act 2006 requires
consultation before making changes to provision of children’s
centres
– Statutory guidance may require consultation: such guidance
must be followed unless good reason to depart (R v London
Borough of Islington, ex parte Rixon) (1998)

79. Grounds: Consultation
• Duty to consult may arise as a matter of fairness
or due process
– General duty to act fairly, not general duty to consult:
“…judicial review is not granted for a mere failure to
follow best practice. It has to be shown that the
failure to consult amounts to a failure by the local
authority to discharge its admitted duty to act
fairly.” (R v Devon County Council, ex parte
Baker (1992))

80. Grounds: Consultation
• Impact of a proposed decision on individuals may give
rise to a right to be consulted
– R (Dudley MBC) v Secretary of State for
Communities (2012)
The Secretary of State’s decision fundamentally
altered the nature of a previously-made
commitment to fund capital projects, and had a
significant impact on the local authority. To make
the decision without consultation was so unfair as
to amount to an abuse of power.

81. Grounds: Consultation
• Contrast with:
– R (on the application of British Medical Association)
v General Medical Council (2008): The GMC
abolished without consultation an exemption on the
payment of medical register fees for doctors aged
over 65. The impact was minimal and the GMC were
not acting unfairly

82. Fairness in Consultation
R (on the application of Moseley) v Haringey LBC (2014)
• Supreme Court reaffirmed the Sedley principles of
fair and adequate consultation:
– Consultation at formative stage of proposals
– Proposer to give sufficient reasons for proposals
– Adequate time for consideration and response
– Product of consultation to be taken into account

83. Grounds: Fairness in Consultation
R (on the application of Moseley) v Haringey LBC
(2014)
• Previously wide discretion on options on which to
consult
– No obligation to consult on rejected options
• New ingredient: Court in Moseley held that
consultees had to be made aware of alternative
options and why the Council had rejected them

84. Grounds: Fairness in Consultation
• Application of the duty of fairness in consultation cases
is “intensely case-sensitive” (R (Rusal) v London Metal
Exchange (2014))
• “Judgments are not to be construed as though they
were enactments of general application, and the
extent to which judicial dicta are a response to the
particular factual matrix of the case under
consideration must always be borne in mind” (R
(Greenpeace Ltd) v Secretary of State for Trade and
Industry (2007))

85. Grounds: Fairness in Consultation
• Cases since Moseley suggest that the circumstances in
which a public body must consult on alternatives are rare
• Obligation to provide sufficient information for intelligent
consideration
• R (Robson) v Salford City Council (2015)
– The Court of Appeal held that in Moseley, consultation
material conveyed a positively misleading impression.
In this case, whilst the material presented an
incomplete picture, this did not amount an unfair
consultation process.

86. Grounds: Legitimate Expectation
• A public authority may, by practice or policy,
confer on a person a legitimate expectation that it
will act in a certain way
• Legitimate expectation can arise from an express
or implied representation, consistent past practice
or from a policy
– Representation must be clear, unambiguous and
unqualified

87. Grounds: Legitimate Expectation
• Procedural legitimate expectation
– Arises where a public authority has “provided an
unequivocal assurance, whether by means of an
express promise or an established practice, that it
will give notice or embark upon consultation before
it changes an existing substantive policy” (R (Bhatt
Murphy) v Secretary of State for the Home Department
(2008))

88. Grounds: Legitimate Expectation
• Substantive legitimate expectation
– “A substantive legitimate expectation constitutes
a specific undertaking, directed at a particular
individual or group, by which the relevant policy’s
continuance is assured.” Withdrawal would be
“conduct equivalent to a breach of contract or
representation” (Bhatt Murphy)

89. Grounds: Legitimate Expectation
• Small number of cases: Courts acknowledge that it
must be open to a public body to change its
policies, unless to do so would amount to abuse of
power
• Substantive procedural expectation recognised in
exceptional cases only:
– E.g. R v North and East Devon Health Authority ex
parte Coughlan (2001): Successful JR brought by
chronically ill tetraplegic who had been promised
a residential care home was her home for life

90. Grounds: Rule against bias or pre-
determination
• The modern law of bias and apparent bias was
settled in Porter v Magill (2001):
– The question is whether the fair-minded observer,
having considered the facts, would conclude that
there was a real possibility that the ‘tribunal’ was
biased

91. Grounds: Rule against bias or pre-
determination
• Practically, this means a decision-maker should not be ‘a judge in his own
cause’ R v Bow Street Metropolitan Stipendary Magistrate, ex parte Pinochet
Ungarte (2001)
• A decision-maker should declare their interest in and withdraw participation
from a decision:
– Which will affect a friend or relation
– In which they have a financial interest relating to the outcome
– Where they are a director of an organisation affected by the outcome of
the decision
– Where they are a member of a group campaigning for one outcome or
another
– In which their spouse or civil partner has an interest in the outcome

92. Grounds: Rule against bias or pre-
determination
• Kelton v Wiltshire Council and others (2015)
– Bias was found when a councillor whose
vote decided planning permission for a
development was a director in a housing
association that had an interest in the
development

93. Grounds: Rule against bias or pre-
determination
• Predetermination is also unlawful
• R (on the application of Lewis) v Persimmon Homes Teesside
Ltd (2008) is the leading case on bias and pre-determination
– Mere predisposition will not be enough
– Appearances of predetermination created by a councillor
voting for a planning project he has long supported are not
predetermination
– Importance of appearances limited in local government
context

94. Grounds: Rule against bias or pre-
determination
• S.25 of Localism Act 2011 provides that a decision
maker must not be taken to have had a closed mind
when approaching a decision just because they have
previously indicated a view on the relevant matter
• S.25 taken with Persimmon, bias and
predetermination will rarely be fatal in local
government decisions

95. Grounds: ‘Duty’ to give reasons
in public decision making
• Although there has been an increasing trend in
common law for decision-makers to give reasons,
the present legal position is there is no general
common law duty on public bodies to give reasons
R (Hasan) v Secretary of State for Trade and
Industry (2008)
• However, not giving reasons means that a decision-
maker may be much more susceptible to a
successful challenge on another ground for review

96. Grounds: ‘Duty’ to give reasons
in public decision making
• Oakley v South Cambridgeshire DC (2017)-
– Affirmed that there is no general obligation to give
reasons at common law.
– However, there is increasingly a tendency to require
them rather than not and it is more accurate to say
that the common law was moving to the position
that whilst there was no universal obligation to give
reasons in all circumstances, in general they should
be given unless there was a proper justification for
not doing so.

97. Grounds: ‘Duty’ to give reasons
in public decision making
• There are situations in which a duty to give reasons arises at law
• This can be imposed by statute or common law
• The common law right to reasons arises when the test set out in R
v Higher Education Funding Council Ex parte Institute of Dental
Surgery [1994] is met
– There is a practical need to know the reasons so an individual
can consider an appeal or review
– The importance of the decision to the person affected
– Whether there is a legitimate expectation as to how the
decision-maker should act

98. Grounds: ‘Duty’ to give reasons
in public decision making
• R (on the application of Hawksworth Securities Plc) v
Peterborough City Council [2016] gave details on how reasons
should be given:
– The standard of reasons to be applied to a local planning
authority's decision to grant planning permission was different
to the formulation of reasons where a minister or planning
inspector was giving a decision on a planning appeal. Where a
local authority planning committee gave reasons for a grant of
planning permission it needed only to summarise the main
reasons for the decision and could do so briefly: it was not
required to set out each step in its reasoning, nor indicate
which factual matters were accepted or rejected.

99. Grounds: Illegality
• Excess of Power (vires)
– Outside the limits of jurisdiction or otherwise
outside its powers (i.e. ultra vires)
• Abuse of Power
– Pursuing an objective other than that for which the
power to make the decision was conferred
• Error of Law
• Human Rights Act 1998
• Equality Act 2010

100. Grounds: Illegality
• Unauthorised delegation
– Where a power is given to someone by statute, it
cannot be delegated to someone else unless there
are express or implied powers to do so
– Carltona Ltd v Commissioners of Works (1943)
• Acting:
– In bad faith (dishonestly or maliciously);
– For an improper purpose (Porter v Magill (2002))

101. Other grounds
• Irrationality
– ‘Wednesbury Unreasonableness’ is a decision that was not reasonably
open to a public body… a decision so unreasonable that no reasonable
body would make it Associated Provincial Picture Houses Ltd v
Wednesbury Corporation (1943)
– All relevant considerations must be considered Anisminic v Foreign
Compensation Commission (1969). Irrelevant considerations should
not be considered. For example:
 Need to get business finished quickly
 Assumptions not based on evidence
 Personal experience of a different situation
 Dislike for the person affected by the decision or what they represent

102. Other grounds
• Proper Purpose
– A public body must not have ulterior motives or act
in bad faith Padfield v Minister of Agriculture,
Fisheries and Food (1968)
– For example, it must not:
 Exercise powers for electoral advantage of a particular
party

103. Real world regulation of Drones
• Both the EU and the UK are conducting assessments
and consultations with a view to introducing new
regulation of drones see eg:
https://www.gov.uk/government/uploads/syst
em/uploads/attachment_data/file/631638/unl
ocking-the-uks-high-tech-economy-
consultation-on-the-safe-use-of-drones-in-the-
uk-government-response.pdf

104. Real world regulation of Drones
• As it stands, drones weighing less than 20 kg
excluding fuel generally fall within the remit of the
Air Navigation Order 2009 as ‘small unmanned
aircraft’ (‘SUA’)
• SUA do not need to be insured or registered with
the Civil Aviation Authority (‘CAA’)

105. Real world regulation of Drones
• A person operating an SUA must ‘maintain direct, unaided visual
contact with the aircraft sufficient to monitor its flight path in
relation to other aircraft, persons, vehicles, vessels and structures
for the purpose of avoiding collisions’
• If the SUA weighs over 7 kg excluding fuel- which is relatively
uncommon- then it must not be flown in certain airspace without
permission from aircraft control
• When flown for commercial gain, the person controlling the drone
should generally be authorised by the CAA

106. Real world regulation of Drones
• If the drone is capable of recording images, it becomes a Small
Unmanned Surveillance Aircraft (‘SUSA’)
• Without CAA permission, SUSAs must not be flown:
– Within 150 metres of any substantially used residential,
industrial commercial or recreational area
– Within 150 metres of an organised open-air assembly of more
than 1000 persons
– Within 50 metres of any vessel, vehicle or structure
– Within 50 metres of any person
• Use of SUSAs or SUAs may also be subject to privacy
and trespass actions

107. Any questions?

108. Contact us…
Richard Barlow – 0115 976 6208
richard.barlow@brownejacobson.com
Ben Standing – 0115 976 6200
ben.standing@brownejacobson.com
Will Thomas – 0115 934 2007
will.thomas@brownejacobson.com

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