Could the Article 50 notification be written on the side of a cow catapulted over the English Channel?

16th March 2017
 
My legal view, at Financial Times.
 

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Brexit and the WTO schedules

28th February 2017

Today’s post at the FT is about Brexit and the WTO schedules.

In this post I argue  that there is one way in which Brexit will *not* be as complicated as initially feared.

WTO renegotiation will be undoubtedly fiddly and tiresome – about as complex a technical readjustment as one can imagine – but it is ultimately not a predicament but a chore.

The post already has the sort of comments which make online abuse worth it:

 

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

First, click on this link to Hammicks and have a browse.

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FT post on Home Office, Saudi Arabia and the need for a ‘safe space’

13th January 2016

My latest FT post is now up, on the the Home Office using the jargon of “safe spaces” so as to avoid disclosing the nature of its relationship with the Saudi internal ministry.

FTHO story

SafeSpace

And this glorious comment:

CommentoftheDay

You can read the full post here.

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The new Investigatory Powers Bill and the politics of ‘nodding along’

2nd November 2015

Today I have done a quick post at the FT on the Home Office’s PR exercise this week on the new Investigatory Powers Bill.

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FT post on why the reference to ‘international law’ in the UK’s Ministerial Code matters

26th October 2015

Following on from the story that was broken by my friend Nick Cohen on the deletion of regard to “international law” from the Ministerial Code, and also in response to the extraordinary public intervention from the former Treasury Solicitor, I have done a brief post over at the FT.

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Michael Gove and the Ministry of Justice’s change of tone

13th July 2015

Over at the FT I have just posted on the change of tone at the MoJ – is it a change of substance as well as of style?

 

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