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:

https://twitter.com/taxbod/status/724115206801108992

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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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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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Five things about David Cameron and sovereignty

9th March 2016

Here are five things to remember when you hear the Prime Minister praise the “sovereignty of parliament”.

First, ministers and officials are encouraged to use statutory instruments as much as possible, which do not get proper parliamentary scrutiny.

Second, the government has sought to cut the “Short money” which funds the scrutiny work of opposition parties in parliament.

Third, the government is seeking to push through the Investigatory Powers Bill through parliament at speed, just as it did with the Data Retention and Investigatory Powers Act.

Fourth, when the House of Lords (sensibly) rejected cuts to certain benefits (which were later dropped), Cameron sought to limit the power of the Lords.

Fifth, when the Speaker of the House of Commons was seen as too independent, the (then Coalition) government under Cameron attempted (and failed) to get the Speaker sacked.

Take together the increasing use of secondary legislation, the attempts to cut Short money, the rushing of primary legislation, the attempt to limit the Lords, and the plans to eject the Speaker – and the evidence does not show that Cameron and his government have any sincere respect for the sovereignty of parliament.

In fact, the evidence contradicts the notion that Cameron and his government believe in the rights and prerogatives of the legislature.

And this is without the ongoing tendency for major announcements to be leaked to the press, or to be revealed on chat shows, rather than on the floor of the Commons.

In essence, it is not the sovereignty of parliament which is being claimed by Cameron and his ministers, but the sovereignty of the government once it has a Commons majority; what a former Conservative Lord Chancellor called an “elective dictatorship“.

The rhetoric may be about the sovereighty of parliament, but the practice of the current government (as with previous governments) is to undermine parliament in as many ways as possible.

It is not Brussels which is the greatest enemy of the Westminster parliament but Whitehall.

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

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Where is the Tort? Something seems to be missing in the Investigatory Powers Bill

2nd March 2016

Here is an interesting omission from the Investigatory Powers Bill published yesterday.

The current legislation – the Regulation of Investigatory Powers Act 2000 – provides, at section 1(3), a tort for unlawful interference (emphasis added):

Any interception of a communication which is carried out at any place in the United Kingdom by, or with the express or implied consent of, a person having the right to control the operation or the use of a private telecommunication system shall be actionable at the suit or instance of the sender or recipient, or intended recipient, of the communication if it is without lawful authority and is either—

(a) an interception of that communication in the course of its transmission by means of that private system; or

(b) an interception of that communication in the course of its transmission, by means of a public telecommunication system, to or from apparatus comprised in that private telecommunication system

This provision means a person can sue another person for unlawful interception, rather than just rely on the government to prosecute.  It was, in this way, a directly enforceable privacy right.  (It was a tort used, I understand, in phone and computer hacking claims.)

But the Bill does not (seem to) have this tortuous protection for individuals, even though Part 1 of the Bill is supposedly protecting privacy. (If it somewhere else in the vast Bill, I cannot find it.  Please correct me if I am wrong.)

If this is correct, and the tort is being repealed, then why is the government removing this civil law right, leaving the individual only with criminal law protection under what will be the new Act – which in turn needs the prior consent of the Director of Public Prosecutions?

I have just noticed the omission (it was also missing from the earlier draft Bill). There may be a good explanation. Let’s see.  I have asked the Home Office if they can tell us.

But there is no point adding “Privacy” to the title of Part 1 of the Bill if the government is also taking the directly enforceable tort from the statute book.

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The Provocative President of the Supreme Court

1st March 2016

A couple of years ago, the President of the Supreme Court was being provocative about the constitution:

“I think that it is very significant that the UK has a very different constitutional arrangement from every other European country. Unlike every other European country, we have no written constitution and we have parliamentary sovereignty. Indeed, it may be said with considerable force that we have no constitution as such at all, merely constitutional conventions, and that it is as a consequence of this that we have parliamentary sovereignty.”

(Full lecture here; discussion at Professor Mark Elliott’s site here.)

It was a playful statement, plainly intended to stimulate reflection and reaction.  He was not even putting forward his own view – “it may be said with considerable force” implies that he is offering a view up for discussion.

In essence, the President was trolling us – in the proper sense of that much-abused word.

I think the President has a point – it is difficult to define what is meant by the UK having a “constitution”.  Even “parliamentary sovereignty” as a principle is not clear, despite the Diceyan orthodoxy.

Of course, it is possible to provide a (merely) descriptive answer to the question “How is the UK constituted?”.

But beyond that, the lack of the constitution being codified means the “British Constitution” is difficult to define, as opposed to describe.

Here the President – knowingly – is setting out a view point contrary to received wisdom.  There would be many lawyers – and law students – who would rush to contradict him, saying “how stupid to say there is no constitution”.  But the President is wiser than those people would realise.

The President should be congratulated for provoking debate on this.

(The pretext for this post is a piece here which took the tweets I sent about this a few days ago to mean (incorrectly) that I was having swipes at the President’s “apparent lack of constitutional law knowledge” and that I was intending to “not be very nice” about him.  This false interpretation could only mean my tweets were not sufficiently clear, and so I thought it would be useful to set out my views more fully.)

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The push-me-pull-yous of public policy: surveillance and freedom of information

1st March 2016

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“If you have nothing to hide then you have nothing to fear.”

Adage, attributable to someone or other.

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Surveillance and freedom of information are the push-me-pull-yous of public policy.

Those politicians and officials in favour of ever-more surveillance will assure you that if you have nothing to hide then you have nothing to fear.

But many politicians and officials – often the same ones urging greater powers of surveillance – want to weaken the freedom of information rights of the citizen against public bodies.  It would seem politicians and officials need the “safe spaces” which they also wish to deny the citizen.

Of course, this is a contradiction: the politicians and officials cannot – at least not intellectually – have it both ways.

At base the debates about surveillance and freedom of information are about the relationship of the citizen and the “state” – who knows what about whom.  And if politicians and officials want to know more about the citizens, then the same principle of transparency should first be applied to public activities.

After all, if politicians and officials have nothing to hide then they surely have nothing to fear.

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

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Estragon’s boot: the Conservatives delay the repeal of the Human Rights Act

27th February 2016

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Estragon, sitting on a low mound, is trying to repeal the Human Rights Act.

He pulls at it with both hands.

He gives up, rests, tries again.

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According to a news report today, the Conservative government has “shelved” the proposals to repeal the Human Rights Act and replace it with a “British Bill of Rights”.

This is not a surprise. It was never going to be an easy task.

In the last week or so, the proposals – as well as a daft and dappy “Sovereignty Bill” proposal – have been nothing other than tokens in a political game between the Prime Minister and other Conservative politicians about supporting and opposing Brexit.  But the tokens turned out to have no value and no purchase in this game.

Last May this blog set out the “seven hurdles” for repeal of the Human Rights Act.  These hurdles included the facts that the Good Friday Agreement requires the European Convention on Human Rights to have local effect in Northern Ireland and that Scotland would have a veto on the replacement legislation.

These were real hurdles, and they could not be wished away in a game of tokens.

The hurdles are still there.

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The Human Rights Act is not likely to be repealed this Parliament.

Even if the Conservatives could agree on the proposals, and somehow had solutions to the problems presented by Northern Ireland and Scotland, the parliamentary arithmetic is against them: it is an issue which divides the Conservatives and would unite the opposition parties in both houses.

The Act is not a perfect piece of legislation, even for supporters of human rights law.  It actually does not do a lot which could not be done by courts drawing on other, domestic case law; but it does enough.

And the Conservatives have begun to realise that it is not worth the time and the effort of repealing and replacing it.

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Estragon with a supreme effort succeeds in pulling off his boot. He peers inside it, feels about inside it, turns it upside down, shakes it, looks on the ground to see if anything has fallen out, finds nothing, feels inside it again, staring sightlessly before him.

“Nothing.”

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With apologies to Samuel Beckett.

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Harper Lee

19th February 2016

I was asked to write a tribute to Harper Lee, whose death was announced today, as a legal writer.  It looks like it is not going to be used by who asked for it, so here it is (based on my 2012 New Statesman piece):

“Harper Lee created the best fictional trial narrative in the English language, and she made a literary hero out of a fictional lawyer.  

Both were innovations. 

The fictional trial was not a literary mainstay when Lee published To Kill a Mockingbird – people then preferred books about real trials, and the usual depiction of fictional lawyers was more-or-less just as Charles Dickens had left it a century before.  

(The Perry Mason stories were really pulp detective stories.)

But Harper Lee made a literary hero out of a lawyer, and one who lost the case – a lawyer who despite their great ability and noble intentions could make no difference to the final verdict.

And she somehow made the trial exciting even though the hero lost.  

Atticus Finch will remain an inspiration to generations of idealistic lawyers, notwithstanding the (shall we say) unexpected sequel which Lee’s publishers came out with.”

 

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British Bill of Rights: Today at the Ministry of Justice

15th February 2016

There is speculation that the long-awaited proposals for a British Bill of Rights will be published this week.

Let’s see what is happening today at the Ministry of Justice:

“Welcome everyone, please sit so you can see this whiteboard.  I am allocating you one right each. We will get the Bill of Rights proposal done today.”

Silence.

“If we do the rights before lunch, that means we have all afternoon to do all the exceptions. Let’s get going.  We will brainstorm and workshop this.”

“Brainstorm and workshop are not verbs.”

“Sorry, Lord Chancellor.”

The brainstorm and workshop begins.

“Right to life…hmmm”

“Privacy, what do we mean by “privacy”?”

“Freedom of…what?”

“Errrrrr, fair trials means…”

It is not going well.

“Come on, it cannot be that difficult to draft a “Bill of Rights”. We have been promising it since 2006.”

The whiteboard remains blank.

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