Civil justice

John Whittingdale, secretary of state for culture, media and sport

John Whittingdale, secretary of state for culture, media and sport  © Getty Images

During the recent controversy about John Whittingdale, his private life and his relationship with the press, one statutory provision was often mentioned.

This is “section 40″ and the contention was that the secretary of state for culture, media and sport was acting wrongly in not bringing it into force.

It was further argued that the reason for this failure could be attributed to the hold that the tabloid media had over him. Section 40 of the Courts and Crime Act 2013 is, it would appear, to be of fundamental importance in the debate about press regulation.

Some assert that it would be lethal to press freedom in general and to investigative journalism in particular. Others say it would be a valuable cornerstone in a regulatory system for a free and vibrant but accountable press.

Never has a statutory provision, which is yet to be implemented, had so much riding on it.

On the narrow issue of this provision, as on the wider one of press regulation, good and experienced people — who worked alongside each other on libel reform, for example — disagree starkly. There is anger and derision in their debates on social media. One gets the sense that wise individuals should never discuss the regulation of the press, and that they should talk of less controversial topics such as religion or politics instead.

So what exactly is this section 40 about? Why does it matter to so many people who are concerned with press freedom and media standards? And what would it mean in practice, if and when it is finally put into effect?

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Relatives of the victims of the Hillsborough disaster celebrate the inquest verdict of unlawful killing

Relatives of the victims of the Hillsborough disaster celebrate the inquest verdict of unlawful killing  © Getty Images

On Monday, Theresa May gave a speech where, contrary to the policy of the UK government, she called for the country to leave the European Convention on Human Rights.

It was a curious speech for the Home Secretary to make — indeed for any UK Home Secretary to make. This is for many reasons, not least that the Good Friday agreement explicitly requires that the ECHR have ongoing legal effect in Northern Ireland. For this requirement to change would require the UK to try to rewrite and renegotiate the peace settlement, and even then the amendment would have to be approved by referendums in both Northern Ireland and the Republic of Ireland. And, as the ECHR requirement was included so to give comfort to nationalists concerned about the Police Service of Northern Ireland, Ms May’s demand would risk causing upset and alienation.

Perhaps the Home Secretary did not realise this; perhaps she did not care. It would seem that the political imperative was for her to send a signal to Conservative politicians and the media — she is opposed to Britain leaving the EU so no doubt wanted to placate her pro-Brexit supporters. Whatever the explanation, it showed a certain superficiality in her approach to human rights: the assertion of a populist view without regard to the relevant facts or to its practicality. And this is not the first time: in 2011 she told her party conference that an illegal immigrant could not be deported because they had a pet cat. “I am not making this up,” she assured her audience. Read more

BRITAIN-ECONOMY-BUDGET-POLITICS

The Houses of Parliament  © Getty Images

Public policy in England seems to have a rather illiberal tone at the moment. (And this post deliberately refers to England as, since devolution, it is increasingly hard to generalise about all the national governments in the UK.) Almost every day comes some new announcement about how the government wants to have more power at the expense of its citizens. Is England getting more illiberal? If so, how has this come about? And will any such illiberal trend continue?

First, the evidence of illiberalism. At its most stark, it is about life and death. In the last few weeks alone the prime minister has called for the army to be put above the law and for the law to be changed so as to make it easier for the police to shoot people. It would appear that David Cameron sees no role for the law in restraining those who can exercise lethal force on behalf of the state.

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David Cameron Addresses The 2015 Conservative Party Autumn Conference

UK home secretary Theresa May  © Getty Images

The UK government on Wednesday published a draft Investigatory Powers Bill for public and parliamentary consideration. It was a significant move in many ways.

The intention is that the draft Bill will be the basis of consultation, with a revised Bill being published in 2016. This revised Bill will need to be enacted by the end of next year, as the current Data Retention and Investigatory Powers Act expires on 31 December 2016 and one section of it has been quashed by the High Court as from March 2016.

Publication is therefore the start of what may be a year-long legislative process. On the face of it, the government intends to take the legislative process seriously. The Bill has been published with extensive explanatory materials, fact sheets and impact assessments. The page count of those documents is higher than that of the bill itself — the government wishes to give the impression this process is to be done properly and thoroughly. Read more

The State Opening Of Parliament

  © Getty Images

The Queen’s Speech last week had one notable omission: the firm commitment to a new Bill within months to repeal the Human Rights Act 1998 and for it to be replaced with a “British Bill of Rights”. Read more

Procession Of Judges Marks Start Of Legal Year

  © Getty Images

Imagine a politician making a clear and specific promise before an election. Imagine then, if you can, that politician breaking the promise when he or she is elected to office.

Is this the sort of situation where a voter should be able to go to court and obtain some legal remedy?

Usually when somebody lets you down over something important you can threaten to get the law involved. For example, if a debtor does not pay what is due, or if another driver does not take proper care and attention, you can sue the culprit.

And your rights to legal redress are not just for straightforward disputes: a well-brought legal action can halt an infrastructure project worth billions of pounds if the developer has put a foot wrong, and a judge in chancery will be perfectly happy on a Tuesday afternoon to rule that there is a worldwide complex trust preventing some absconder from misusing a victim’s assets. Where there is blame, there is usually a clever lawyer somewhere who can formulate for you a claim.

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A copy of the long-awaited Saville Inquiry report into Bloody Sunday (Paul Faith/AFP/Getty Images)

  © Paul Faith/AFP/Getty Images

The current difficulties of the UK government in setting up an inquiry into historic child abuse raise a more general point: there seems to be an increasing — but unfortunate — reliance on “inquiries” in British politics.

The pattern is familiar: a dreadful state of affairs comes to light, something must be done, lessons must be learned, and it must never happen again.

Responsibility for determining the thing to be done, working out the lessons to be learned, and ensuring that the “it” never happens again is then handed to a specially appointed inquiry. Such an inquiry will usually be “independent” and not connected to the institutions of the state which have presumably allowed the bad thing to happen in the first place.

And this approach suits a lot of people.

As there is the appearance of immediate action, those aggrieved at the bad thing that has happened can be satisfied that “progress is being made” and those in the media who want something to report and comment on have all they need. Read more

Lady Justice does not always have her eyes covered: for example, contrary to popular belief, she does not wear a blindfold on top of the Old Bailey.

Sometimes she is depicted by artists as being blindfolded, and sometimes she is not. (Perhaps wisely, those statues and paintings which have Lady Justice blindfolded tend to have her with the sword safely lowered; and whether someone brandishing a sword whilst wearing a blindfold is an appropriate image for any system of justice is a matter of opinion.) But there is no consensus among painters and sculptors as to whether Lady Justice should be wearing a blindfold or not.

There is similar inconsistency in what parts of the justice system we are allowed to see, as members of the public or even as jurors or parties to a claim or prosecution. Some parts of our legal process are open, whilst other aspects are hidden from our view. This is because there is no general principle of open justice in the jurisdiction of England and Wales: it is often a game of pass the blindfold as any court case continues. Read more

Chris Grayling, the justice secretary and lord chancellor, is attacking judicial review. He has derided it in the Daily Mail, and the department he heads, the ministry of justice, has issued a consultation paper on further “reform”.

It is worth considering what point, if any, is served by judicial review. This will help explain why the government’s proposals to narrow the rights of individuals and representative groups to bring judicial reviews should be of general concern. Read more