This post is the first of a series on law and legislation. Read more
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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
Last week the UK’s Cabinet Office sought silently to remove the reference to “international law” from the Ministerial Code.
The text had stated that there was an “overarching duty on ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life”. The new version states that there is an “overarching duty on ministers to comply with the law and to protect the integrity of public life”.
Does this matter? From a strict legalistic perspective, there is an argument that it makes no difference: inclusion or exclusion of text from a ministerial code by acts of ministerial or civil service discretion do not create or change substantive law. And there is some force in this contention, though the courts can and do look at such documents when construing the obligations of the state under public law and the legitimate expectations of individuals who can be affected by state actions. Read more
To what extent does the influence of the Kingdom of Saudi Arabia reach into the domestic government of the United Kingdom? And what does the UK get in return? Read more
On Monday, the prime minister told the House of Commons that a specific UK citizen had been killed deliberately by the UK state in a UK military operation:
Today, I can inform the House that in an act of self-defence and after meticulous planning, Reyaad Khan was killed in a precision airstrike carried out on 21 August by an RAF remotely piloted aircraft while he was travelling in a vehicle in the area of Raqqa in Syria. In addition to Reyaad Khan, who was the target of the strike, two Isil associates were also killed, one of whom, Ruhul Amin, has been identified as a UK national. They were Isil fighters, and I can confirm that there were no civilian casualties.
We took this action because there was no alternative. In this area, there is no government we can work with; we have no military on the ground to detain those preparing plots; and there was nothing to suggest that Reyaad Khan would ever leave Syria or desist from his desire to murder us at home, so we had no way of preventing his planned attacks on our country without taking direct action.
The rather legalistic tone and phrasing was no accident; what the prime minister was telling the Commons was not only that the operation had been a success but that it was also “lawful”. Like a defence advocate in court, David Cameron was keen to show that all the required elements to justify an otherwise unlawful action were present: it was “self-defence”, it was necessary — “there was no alternative”, and it was proportionate — there was no other method to achieve the aim of eliminating this target. The statement was, in essence, a formal box-ticking exercise. Read more
One should always be wary of charming people, for they are used to making you feel good about them getting their way. And one should always be cautious of organisations whose first line of defence when placed under scrutiny is something emotive and manipulative like “won’t somebody, please, think of the children?“.
Neither of these wise stances necessarily mean that Kids Company and its charismatic and well-connected head Camilla Batmanghelidjh have done anything culpable. The truth is that, at this stage, very few people know what happened before the UK charity closed in a financial mess.
But what is plain is that subjecting any “third sector” service provider to any meaningful accountability is difficult, and that this needs to change. The appropriate mechanisms are not in place, there is almost no transparency and any public criticism can be deterred as appearing “unhelpful”. Who would want to be responsible for stopping what could be valuable and wonderful work? Read more
If there is an epitome of just how bad the tenure was of the previous Lord Chancellor and Secretary of State for Justice it has to be the prison books fiasco. This remarkable policy — even more than the time the Ministry of Justice instructed counsel to submit to the High Court that the Lord Chancellor should be able to disregard the rule of law — told observers all they needed to know about the ways in which Chris Grayling was running his department.
The thing about the prison books fiasco was that it was not even a deliberate policy decision: the listing of books as a “privilege” in an elaborate prisoner incentive scheme was the sort of error that a bureaucracy can make from time to time. Nobody perhaps realised, or cared, that making books harder to obtain was contrary to the government’s own project of promoting literacy among prisoners. No government department is really “joined-up”. Read more
A curious Martian looking down at the government departments in Whitehall would not work out much about the British party political system. The alien would not grasp that there is supposedly a policy division between Conservatives, Labour, and the Liberal Democrats. Read more
It is a misconception to say Conservatives do not “do” human rights and civil liberties — yet Tory civil libertarianism wants the benefits of a libertarian approach to policy in certain cases without the means of placing such libertarianism on a sustainable basis. So Raab’s appointment as a junior minister at the ministry of justice is an intriguing move Read more
The United Kingdom’s Conservative party no longer has to share power as part of a coalition. Now it has a majority in the House of Commons, one of the very first things the Tories want to do is repeal the Human Rights Act 1998 and replace it with something that purports to protect the rights of citizens but has a weaker connection to the European Convention on Human Rights. Getting rid of the Act is a long-standing objective of the Conservatives, and they now want to repeal it at speed.
According to the Guardian, repeal of the Act is an urgent priority for the new government:
The scrapping of the human rights act, a pledge included in the Tory manifesto, is one of the measures to be included in the prime minister’s plans for the first 100 days, when the Queen’s speech is delivered on 27 May.
The “pledge” is in the 2015 party manifesto, which contains the following statements about the Act:
We will…scrap the Human Rights Act and curtail the role of the European Court of Human Rights, so that foreign criminals can be more easily deported from Britain. [...]
The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. [...]
We will scrap Labour’s Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK.
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.
— UKinSaudiArabia (@UKinSaudiArabia) September 11, 2014
The Ministry of Justice for England and Wales (MoJ) wants to make money out of the punishment system of Saudi Arabia.
It has a “commercial” proposal — made with the apparent blessing of the UK secretary of state for justice Chris Grayling — whereby it will charge £5.9m for providing scarce UK civil service resources funded by the UK taxpayer to one of the most brutal legal systems in the world.
How has this happened?
Our story starts with Saudi Arabia and the sheer nastiness of its legal system. In the last two weeks this regime has had worldwide attention.
This is in part because of the case of Raif Badawi, a writer who was sentenced to be flogged 1,000 times in batches of 50 lashes — because he created and wrote for a liberal website, the Saudi Free Liberals Forum. His first official beating was two weeks ago in front of a mosque in Jeddah; the one scheduled for last week did not go ahead, it is said, for medical reasons. International horror at the punishment appears to have now prompted the case’s referral to the country’s supreme court.
But the Badawi case is not the only one to have received publicity. Last week Layla Bint Abdul Mutaleb Basim was dragged through a street in Mecca and beheaded. She died screaming her innocence. The execution was not done smoothly: a video shows her head was hacked off with three blows, with no anaesthetic. Again this procedure was a formal punishment — an example of the Saudi legal system in action. Read more
What should be the legal response to terrorism?
This question needs asking, for whatever the security problem, the political solution seems invariably to be more law. Something dreadful happens, and the response of many UK politicians and officials is “tougher powers” and another bill on the statute book.
It is almost as if the passing of a law is seen as a kind of solution in and of itself. Something must be done, and therefore something will be done.
And so in the UK over the last 15 years, we have had a Terrorism Act, then an Anti-terrorism Act, then a Prevention of Terrorism Act, another Terrorism Act, then a Counter-Terrorism Act, and most recently a Terrorism Prevention Act. Currently there is a Counter-Terrorism and Security Bill before parliament.
If statutes were weapons in the war against terror, the UK would be armed to its hilt. And inevitably, the atrocities last week in Paris have prompted the prime minister and home secretary to call for even more laws to combat terrorism.
Part of the reason for this glut of legislation is, of course, the relative impotence of UK politicians. There is, in fact, very little they can be seen to be doing in response to any crisis other than to promote additional laws. Policy making is hard, and good policy making and its implementation is not showy. Sometimes policy making will not need any new laws at all. But for the busy and media-conscious politician, it is easier to ban something, or to create a new legal power, than to actually think through what one is doing. Read more
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