The UK’s future may rest on this text of fewer than 300 words and how they are interpreted Read more
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The UK’s future may rest on this text of fewer than 300 words and how they are interpreted Read more
The attention of the public and the media has been grabbed by the appointment by the new prime minister, Theresa May, of Boris Johnson as foreign secretary. But it is another of her appointments, that of David Davis as the cabinet minister responsible for Brexit, which is more important for those interested in how and when (or if) the UK leaves the EU.
The choice of Mr Davis is a remarkable one in some ways. A sincere civil libertarian, as well as a pro-Brexit campaigner, he is one of a group of claimants suing the UK government at the European Court of Justice to enforce EU law on an allegedly non-compliant UK in respect of personal data rights. This case — which is reliant on the very charter of fundamental rights loathed by many in his own party — has already seen a decision of the high court saying an act of parliament was incompatible with EU law (though this was not upheld on appeal, it was referred to the ECJ instead). Read more
It is one thing to assert “Brexit is Brexit” and quite another to make it come about. Any departure of the UK from the EU is not going to happen by mere incantation of a grand phrase. There also has to be some legal means. So what are the legal means by which Brexit can happen?
Some say it can be done by the prime minister (with or without cabinet) as part of the so-called “royal prerogative” – the legal fiction that a minister may exercise the remaining powers of the crown which have not been limited by statute. The prime minister can, for example, enter into treaties on the basis of the royal prerogative.
Others say it can only be by an Act of Parliament — and these people are willing to litigate the point. The argument here is that there is legislation such as the European Communities Act which give individuals rights under EU law so it is not open to the executive to frustrate or circumvent this statute. Primary legislation would therefore be needed. Read more
Various EU politicians can demand what they want but they may as well be whistling Read more
The referendum on Britain’s EU membership is unnecessary. There is no objective reason for it to take place: no new treaty or proposed treaty amendment. It is merely a vote on whether the U.K. continues to be part of an international organisation of which it has been a member for over forty years. There is no more reason to have a referendum on this issue in June 2016 than in June 2015 or June 2017.
The referendum is also not binding as a matter of law. As set out in my earlier post, there is no legal consequence contingent on the result of the vote. The government could have legislated for an immediate legal effect but it chose not to do so. As such the referendum is advisory and not mandatory. The key decision by the government in the event of a “Leave” vote is whether to invoke the (seemingly) irreversible exit procedure in Article 50, and the government can make the relevant notification at a time of its choosing (subject perhaps to a parliamentary vote) or even not make such a notification at all. Read more
In June 2006, 10 years ago this month, David Cameron, then leader of the opposition, promised to replace the Human Rights Act of 1998 with a “British bill of rights” when he and the Conservatives obtained power.
Ten years later the Human Rights Act is still the law of the land, even if it now seems Mr Cameron — prime minister since 2010 — may not be in office much longer. The Human Rights Act is as safe (or as unsafe) as it has ever been, and it looks as though the act will survive the premiership of Mr Cameron. Read more
What follows any referendum vote next week for the United Kingdom to leave the EU? From a legal perspective, the immediate consequence is simple: nothing will happen.
The relevant legislation did not provide for the referendum result to have any formal trigger effect. The referendum is advisory rather than mandatory. The 2011 referendum on electoral reform did have an obligation on the government to legislate in the event of a “yes” vote (the vote was “no” so this did not matter). But no such provision was included in the EU referendum legislation. Read more
Free expression is not the only principle at stake in the Thiel case, writes David Allen Green Read more
On Tuesday, an English judge refused a request by the National Crime Agency to require an alleged hacker Lauri Love to provide his encryption keys. The decision can be read here. It was a serious and embarrassing legal defeat for the agency — a body described by some as “the UK’s FBI”.
This defeat was not — or should not have been — surprising. The agency had attempted to circumvent the relevant law regarding the disclosure of encryption keys, and the district judge at Westminster magistrates’ court ruled that this tactic was not open to it. As the judge notes:
“The case management powers of the court are not to be used to circumvent specific legislation that has been passed in order to deal with the disclosure sought.”
This case, however, is more significant than a junior judge simply putting a law enforcement body back in its box. Read more
This post is the first of a series on law and legislation. Read more
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?
Two news stories about privacy have dominated the London-based media for the last week or so. The first is about the private lives of an (as yet) anonymous celebrity couple and the second is about the private life of a cabinet minister.
In neither case are the material facts of any great importance: the politician is single and had a relationship with another single person, and the celebrity couple have an open marriage and one of them had a relationship with another married couple. The allegations are entirely about consensual relationships between consenting adults. But in both cases there is serious — and sometimes heated — debate about the public interest and the extent to which the press can or should intrude into the private lives of others.
The preoccupation about these two stories is telling about the priorities and concerns of the London media. Even though the ultimate details in each case are trivial, both cases are discussed as if they engage first principles.
Large scale unauthorised data releases are becoming both more frequent and more politically significant. Read more
There have been two main responses to the leak of the Panama Papers.
The first has been a great shrug of indifference: so what? The rich and powerful do things that only the rich and powerful can do. The second is a warm, indeed enthusiastic, welcome to this dramatic exercise in transparency: we can now see how the rich and powerful do the things that only the rich and powerful can do. The political consequences of the leak, for example in Iceland and the UK, indicate that the transparency in turn is leading to greater accountability.
Are these the only valid responses? Is there any issue here about privacy and the right to confidential legal advice? Or are such concerns mere fusspottery and point-missing? Read more
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.
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
This week the Home Office will be launching the new Investigatory Powers Bill. It had previously sought to obtain these powers under the “Snoopers’ Charter” proposals in the last parliament but it failed.
This time the government is sensibly not relying on the brute strength of parliamentary votes or the standard “FUD” tactic of promoting fear, uncertainty and doubt. Such methods of stealth and FUDery may not be sufficient, so something more is needed to get the Bill over the bumps of this first week or two. The Home Office wants your heads to nod along too.
Many people say that the problem with politics is that there is too much cynicism. The problem with UK politics, however, is not that people are too cynical but that they are too gullible. Our politics is beset and bedeviled by the phenomenon of mass nodding along. Just get the catchphrases correct, and you will get all the audience applause you need. The trick is saying the right things at the right time. Read more
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