There are five of them.
Brit Syndicates is about the construction of an insurance indemnity policy: not my kind of thing at all. Total Network is about VAT “carousel” or “MTIC” fraud and whether HMRC can recover lost sums in the form of damages from traders.
Most of the media attention, if the judgments get any attention on budget day, will be on Norris v United States, the extradition case in which the Lords have decided that price-fixing does not in itself amount to a common law conspiracy to defraud, so that Norris cannot be extradited for that (although he can still be extradited on obstruction of justice charges, subject to further consideration by the extradition judge). GG PLC is related to Norris, and turns on whether fixing the price of drugs is conspiracy to defraud.
The most important of today’s judgments though is Animal Defenders v Secretary of State for Culture, Media and Sport, a human rights case in which it was argued that the ban on political advertising in section 321(2) of the Communications Act 2003 breaches the article 10 Convention right to freedom of expression. Particularly interesting, this, since when that bill passed through Parliament, ministers were unable to say the legislation was compatible, given the state of Strasbourg case law. But the legislation has survived: all the Lords agree the ban is justified and that Parliament is entitled to maintain it consistently with article 10 and the ECtHR case law. Lord Bingham gives the leading speech.
There’s an interesting sidelight: Lord Scott suggests that under the Human Rights Act the Lords can depart from Strasbourg’s case law interpreting article 10 if it sees fit; Lord Bingham and Lady Hale gang up (as usual) to disagree with him and insist the task of domestic judges is to keep pace with Strasbourg, no more no less. I’m not sure (for once) who I think’s right on this – I’ll have to have a think about it.
Total is a bit more interesting than it sounds: there’s constitutional stuff on Article 4 of the Bill of Right, a related argument that the VATAct is a complete code and the taxman can’t go outside it, and perhaps more significantly a reconsideration of the necessary elements of the tort of unlawful means conspiracy.
The “Animal Defenders” case is indeed interesting and I would be interested in your views should you publish them! Lord Scott refers to the 1998 Act having “incorporated” into domestic law the articles of the convention (para 44 of his speech).
Many writers, judges and commentators use the word “incorporated.” However, it is worth recalling that Lord Irvine LC’s view of the Act was that it did not incorporate the convention into English law – (Hansard HL, 29th January 1998 ol. 421). He was the architect of this Act and he viewed it as creating an interpretative obligation only. If this view is correct then Lord Scott’s opinion would, with respect, be inaccurate.
Assuming Lord Scott to be right in saying that true incorporation did take place, then I believe that the views of Lord Bingham and Baroness Hale are still to be preferred. Baroness Hale said (para 53) that the Act “gives effect to the Convention rights in our domestic law.” She then went on to point out that Strasbourg must be kept pace with.
Even Lord Scott saw that a “divergence” between the European Court and the House of Lords would be “unfortunate.” Surely, the better way to avoid that is by adopting the majority view.