“Of course”

4th May 2016

Then:

Of course, Corbyn won’t win the Labour leadership.

Of course, Leicester won’t win the premiership.

Of course, Trump won’t win the Republican nomination.

Of course.

(But they did.)

And now:

Of course, Hillary will win against Trump.

Of course, UK voters will vote against Brexit.

Of course, Aston Villa will come straight back up.

Of course they will.

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Law and policy round-up: Hillsborough verdict, judicial policy, sovereignty of parliament, etc

4th May 2016

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Hillsborough verdicts

David Conn has set out at the Guardian a powerful critique of the legal process in the new Hillsborough inquest: The other villain of Hillsborough saga: legal system that left families in torment.  David Conn is an excellent journalist and it is fascinating to see what he made of the legal process as an outsider looking in.

The UK human rights blog has provided a useful round-up of links on the legal aspects of the verdicts.

My own contribution, on how the Human Rights Act and ECHR made the scope of the new Hillsborough inquest possible, is at the Financial Times.

Public law and private law

Sir Henry Brooke, the retired senior judge who has transformed into an outstanding legal blogger, has posted his talk on private law for public lawyers.

The judiciary and public policy

The Lord Chief Justice was questioned yesterday by MPs. The questions covered a range of justice policy topics – not just judicial pensions, though that was picked up by the press – and the answers are worth reading.

Sovereignty of parliament

Over at the Financial Times I have posted the first of what will be a series of pieces exploring laws and legislation. The first is on the fragility of “parliamentary sovereignty”.  Further posts in the series will be on bad legislation and the government’s apparent misuse of statutory instruments.

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Press regulation: what you need to know about “Section 40”

29th April 2016

The “section 40” is a provision in the Crime and Courts Act 2013.  It will be put into effect when John Whittingdale, the Secretary of State, decides.

Some have contended that the delay in implementing the provision is for no good reason. A few go further and suggest the delay can be attributed to the alleged hold the London press have over Whittingdale by reason of not publishing information about his private life.

As I set out over at the Financial Times website today, I believe the better explanation is that the legislation is a dreadful dogs dinner, and that no responsible Secretary of State would implement it – at lest in present circumstances.

Section 40 is controversial. Hacked Off and its allies demand that it be implemented without delay – see here and here.  Alternatively, the media campaigners at 89UP warn that it will have a profound chilling effect.

Section 40 has now become a totem in the debate about press freedom.

In my view, section 40’s problems come down to what it actually says.

Section 40(1) tells you what it covers – in effect it means claims for media torts (mainly libel or privacy) against “relevant publishers” (mainly news organisations).

Sections 40(2) and (3) then deal with who pays for the costs of such cases.  Both seek to alter the usual position that “costs follow the event” – ie the loser in a claim pays the winner’s costs.

Section 40(2) tells you that the news publishers should not generally have to pay legal costs in respect of those claims as long as they are members of an “approved regulator” with an arbitration scheme.  This provision does not apply, however, if it would be unreasonable for such a scheme to be used or that it is ” is just and equitable in all the circumstances of the case” for such a costs order not to be made.

This provision is a “carrot” – it is to provide an incentive for publishers to join an “approved regulator”.

The real problem is with section 40(3). This is the “stick”.

Section 40(3) tells you that the news publishers should generally have to pay legal costs – including those of the claimant – in respect of those media tort claims if they are not members of an “approved regulator” with an arbitration scheme.  In effect, as long a claim is arguable, the publisher will have to pay both side’s costs, even if the publisher wins at court.

As with section 40(2), this provision does not apply, however, if it would be unreasonable for such a scheme to be used or that it is ” is just and equitable in all the circumstances of the case” for such a costs order not to be made.

And again, this provision is to provide an incentive for publishers to join an “approved regulator”.

One key issue with this is that (a) there is no approved regulator yet and (b) the one regulator which is likely to get approval – IMPRESS – has hardly any members.  Most publishers are members or IPSO – which does not want recognition – or (like the Financial Times, Guardian, and Private Eye) do not want to be members of any external scheme at all.

This means the vast majority of the UK news media will be under section 40(3) costs risks once IMPRESS becomes approved.

For me the worry is not that section 40(3) will have a certain impact but that it will be uncertain. It is a dire piece of drafting.

As I set out over at the Financial Times:

To take four examples:

– What is “a relevant publisher”? (The schedule to the Act on exceptions to this definition is not clear.)

– When would it “have been reasonable in the circumstances for the defendant to have been a member [of a scheme] at that time”?

– What does it mean that “the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator”?

– And, most importantly, when will it be “just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs”?

On the last point alone, one can imagine judges routinely disregarding the general rule and awarding costs as they do now, as that would be “just and equitable in all the circumstances”.

If section 40(3) takes effect, there would be immediate and expensive uncertainty. So hedged is it with qualifications and exceptions that litigation is inevitable. The Leveson report called for a system that was “fair, quick and inexpensive”. What this provides is anything but.

In other words – section 40(3) will create far more problems that it solves, with the real prospect of expensive and lengthy litigation as each loophole and technicality is explored.

If section 40 is be implemented at all – and when it was enacted, the failure of an approved regulator to have almost no members was not envisaged – then it should only be once an approved regulator with an arbitration scheme is up and running.

As I conclude at the Financial Times:

Looking at the detail, rather than just the totemic significance, reveals it as a worrying and unstable provision. The secretary of state is quite right to delay bringing section 40 into effect, at least until there is a recognised regulatory scheme with a functioning arbitration service. To bring it in earlier, would be so irresponsible that no responsible politician should do it.

One does not need to look for lurid explanations for the hold the media supposedly have over a cabinet minister to explain why section 40 should not be implemented lightly. It is not a dominatrix in a relationship but the devil in the detail which provides the explanation for why it should be delayed, if not repealed altogether. It is simply a bad provision.

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FT post on Theresa May, Hillsborough, human rights law and the politics of superficiality

27th April 2016

I have a new post at the Financial Times on how the superficial politics of Theresa May – especially her statements about human rights law – do not match with things such as the new Hillsborough Inquest.

In brief: the new Hillsborough Inquest could not have ranged as widely without Article 2 of the ECHR having effect in domestic law – the same ECHR which May wants the UK to leave.

A couple of excerpts are below:

MayHumanRights

MayHumanRights2

The post was received well on Twitter.

Lawyer and Rugby legend Brian Moore:

The UK’s leading legal commentator Joshua Rozenberg:

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Law and policy round-up: Theresa May’s call for the UK to leave the ECHR

26th April 2016

Human Rights and ECHR

Theresa May, the Home Secretary, gave a speech yesterday which included a call for the United Kingdom to leave the European Convention on Human Rights.

The speech is set out in full at ConservativeHome, and (as it appears to be a statement on behalf of her department) it is also now on the Home Office site.

The statement is, of course, more about the politics of Brexit and succession to the Tory leadership than anything serious about law and policy.  It is a sort of counter-balance to her position on the UK remaining in the European Union.

For a number of reasons, not least that the Good Friday agreement requires the ECHR to have continual legal effect in Northern Ireland, this demand will go nowhere.

(I set out the seven hurdles for repeal of the Human Rights Act and for UK leaving the ECHR – including the problems presented by Northern Ireland and Scottish devolution –  in a post here last May.)

Given the office Theresa May holds, it is worth taking a moment to look at the Northern Ireland point, for the UK to leave the ECHR would require the UK to reopen and renegotiate the Good Friday agreement.

Any change to the agreement would, in turn, require fresh referendums in Northern Ireland and the Republic of Ireland.

It would also risk alienating the nationalists who accepted the Police Service of Northern Ireland only as long as it was subject to the ECHR.

It is, in all, a remarkable demand for a serving Home Secretary to make, and it is also extraordinary for the Home Office to post the statement on their own site as if it is government policy – and here it should be noted that policy on the Human Rights Act is (supposedly) under the Ministry of Justice, and not the Home Office.

This does not seem thought through. One suspects the Home Secretary does not realise (or does not care) about the implications of the UK leaving the ECHR – perhaps her desire to send a political signal to Tory back-benchers and the popular media is too great.

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Law and policy round-up: media law, Brevik and human rights, legal aid and access to justice

25th April 2016

The media, defamation and lawyers

Excellent post at Law Society Gazette on the state of current media law litigation, especially the impact of the Defamation Act 2013.

Breivik reminds us human rights never stand alone

Nick Cohen takes on the “what about Brevik” counterpoint to the concept of absolute human rights.

Legal aid cuts have led to surge in DIY defence, says charity

Good article (though one with a dull title) on the recent Transform Justice report. Includes this eye-catching example:

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A word-switch, not a phrase-insertion: “back of the line” is an Obama rhetorical staple

23rd April 2016

The contention is being (seriously) made that President Obama’s use of “back of the queue” in a speech about Brexit shows that the phrase was inserted by his UK hosts.  This contention rests on “queue” not being a word Americans use. They use the word “line” instead.

Politicians, like all of us, tend to use rhetorical staples. And a quick search of Obama’s public statements over the last few years shows that “back of the line” is indeed one of his rhetorical staples. He seems to have used it nine times since 2013.

And not only has he used it in formal speeches, but in unscripted press conferences. It is a phrase he readily uses, and if you look at the examples, he uses it to make similar points to the one being advanced in his Brexit comments.

So all that needs to be explained is not the insertion of the phrase, but a switch of a word.

It is a word he is recorded as using anyway.  The word switch may well be his own, or from his advisors or script writers. Who knows.

But all that needs any special explanation is the word, and not the phrase.

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The Magistrate’s Court: the story of a pedant’s comeuppance

11th April 2016  

One thing every legal pedant knows is where the apostrophe is in the term Magistrates’ Court.

It may look ugly, especially on a public sign, but it should be after the “s” – that is, if there is an apostrophe at all.

Or so you would think.

One day I was walking through a town – not a big town but the biggest town around – and I saw a sign which said Magistrate’s Court.

MagistratesCourt

Aha, I gloated – for such a mistake in such a place is a treasure for any pedant.

There is a misplaced apostrophe on an official court sign, I announced smugly.

Pause.

No, came the devastating response, there is in fact only one Magistrate.

And it was true.

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FT post on the Panama Papers: public interest disclosure v the right to private legal advice

6th April 2016

I have posted over at FT.com on the Panama Papers and whether their disclosure raises concerns about the right to private legal professional advice.  The post is here.

Here are a couple of excerpts:
Panama2

Panama

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Dear Mr Gove, bad Ministry of Justice policy making has not gone away

4th April 2016

Another policy failure of the Ministry of Justice becomes apparent: over at the Law Society Gazette, John Hyde has detailed how the MoJ has collected only a small proportion of the criminal courts charge.

The charge has now been terminated; but the underlying problem remains: the MoJ is simply not any good at policy making and policy implementation.

The MoJ adopts a policy, usually without assessing evidence or even thinking things through, and it then “presses on” with the policy regardless of onlookers pointing out that, well, the policy will not work.

The policy is then eventually reversed.

This is not just a one-off; the cycle of policy adoption-failure-reversal has been a feature of the MoJ for as long as one can remember.

Michael Gove has been Justice Secretary and Lord Chancellor for less than a year. He has started well as the ministerial head of the department, and he has been savvy enough to work out ways of ending most of his predecessors more idiotic policies.

To go by the political news, however, it seems like Gove is now becoming preoccupied with the upcoming “Brexit” referendum vote.

The worry is that Gove somehow thinks the problem of crap MoJ policy making has been solved. and that he is thereby free to concentrate on other political matters.

The problem has not been solved; as not being any good at policy making and implementation (whilst arrogantly ignoring anyone pointing this out) is the natural state of the MoJ.

Without a careful eye, bad policy making will return.

And, if so, Gove will no longer have the luxury of focusing on Breixt or even the Tory leadership succession.

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Regular blogging at Jack of Kent is made possible by the kind sponsorship of Hammicks Legal Information Services.  

If you value this this blog and its free content, please do two things.

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