law

Pro-EU supporters outside the High Court in London, which has been hearing the Article 50 case

Pro-EU supporters outside the High Court in London, which has been hearing the Article 50 case  © Getty Images

When the UK makes a notification under Article 50 that it intends to withdraw from the EU there is the legal question of whether that notification can be revoked unilaterally.

Nobody knows the answer.

If it is revocable then the UK and EU will not be bound to go through with the exercise if conditions or preferences change: the UK can put the revolver down.

But if it is irrevocable then the UK will be out in two years or so, even if no exit deal has been agreed: once the revolver is fired the bullet cannot be stopped. Read more

The Houses of Parliament

The Houses of Parliament  © Getty Images

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

Free expression is not the only principle at stake in the Thiel case, writes David Allen Green Read more

A general view of the Supreme Court on May 19, 2016 in London, England.

Last week the Supreme Court of the United Kingdom handed down a judgment in the privacy case of PJS v News Group Newspapers. The court upheld the interim injunction preventing the publication by the news media of the identity of PJS in England and Wales. Read more

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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John Whittingdale arrives at No 10 for a cabinet meeting

John Whittingdale arrives at No 10 for a cabinet meeting  © Getty Images

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.

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People demonstrate against Iceland's Prime Minister Sigmundur Gunnlaugsson in Reykjavik, Iceland on April 4.

Large scale unauthorised data releases are becoming both more frequent and more politically significant. Read more

Protestors gather outside Iceland's parliament after Prime Minister Sigmundur David Gunnlaugsson stepped down in the wake of the Panama Papers leaks  © Getty Images

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

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

Michael Gove

Michael Gove  © Getty Images

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.

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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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“The cause of everyone’s misfortunes is their inability to sit quietly in a room.” Blaise Pascal

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