The Law Society asked me recently to take part in a webinar to discuss the future of press regulation with the Law Society Gazette’s news editor Michael Cross – and the webinar’s now available online for free, if you register with the Law Society’s CPD centre. It’s worth an hour’s CPD.

The webinar covers:

• How the new regime will work
• What is meant by “news related material”
• What is the position regarding the internet?
• How will bloggers and news-based websites be regulated?
• Exemplary damages and European law
• Will entrenchment create a bar to changing press regulation in the future?
• How will foreign publishers be affected?
• The arbitral process
• Will regulation mean more litigation against writers in person?

It was great fun to record the hour’s discussion with Michael, and I hope the result’s interesting, too. We begin by explaining the way the new legislative provisions in the Crime and Courts Act 2013 fit together with the competing draft Royal Charters, and then get into the meat of the legislation itself.

Finally, we have a fairly robust discussion and debate about the proposals – Michael and I pretty well represent the two sides of this argument.

Watch the video here.

A day after the Court of Appeal refused her permission to appeal to the Supreme Court in the Abu Qatada case, Theresa May’s announcement today of a mutual legal assistance treaty with Jordan seems finally to turn the case in her favour. Here is the treaty:

The Court of Appeal had upheld the Special Immigration Appeals Commission’s decision that the Home Secretary was wrong in law to insist on her most recent decision to deport Abu Qatada to Jordan (where he faces criminal charges) because there remains a real risk that evidence obtained by torture will be used against him there. This, the European Court of Human Rights ruled last year, would be a “flagrant denial of justice” and therefore a breach of the right to a fair trial enshrined in article 6 of the European Convention on Human Rights.

The Home Secretary might yet get permission from the Supreme Court itself for an appeal (although perhaps that’s less likely now, since the prospect of the treaty coming into force may make the current legal position, in Supreme Court justices’ view, of less general public importance than it seemed only yesterday). But any appeal would probably have been hopeless. In reality, SIAC was loyally applying the principles laid down by the European Court, which it was bound to take account of under section 2 of the Human Rights Act 1998.

Theresa May’s real problem has been this: that in spite of various guarantees and legal changes she argues she had obtained from Jordan, both SIAC and the Court of Appeal concluded that there’s a real risk under Jordanian law that the Jordanian courts would use evidence against Abu Qatada about which, in the Court of Appeal’s words (see para. 49),

the ECtHR made strong findings as to the compelling nature of the evidence that the statements had in fact been obtained by torture.

None of the guarantees she has been able to point to have been enough to create confidence that the evidence will be excluded. That has been the essence of the problem. Until now.

Article 27.4 of the Treaty is the key: if Abu Qatada’s surrender to Jordan is requested under the new, in effect, extradition arrangements established by article 26, then under article 27.4

Where, before the date of signature of this Treaty, a Court in the sending
State has found that there is a real risk that a statement from a person has been
obtained by torture or ill-treatment by the authorities of the receiving State, and might be used in a criminal trial in the receiving State referred to in paragraph 1 of this Article, this statement shall not be submitted by the prosecution nor admitted by the Court in the receiving State, unless the prosecution in the receiving State proves beyond any doubt that the statement has been provided out of free-will and choice and was not obtained by torture or ill-treatment by the authorities of the receiving State, and the Court in the receiving State is so satisfied.

It’s worth noting that this would not only put the burden of proof on the Jordanian prosecution to prove that any statement it relies on in evidence against Abu Qatada was provided freely and not obtained by ill-treatment; it would also require proof to a very high standard indeed – beyond any doubt. This is a very strong provision, and in my view it’s a game-changer for Theresa May.

The remaining questions are, how quickly the treaty can be ratified and brought into effect by the two countries (there’s little doubt Parliament will be able to approve a bill enabling its ratification very quickly), and whether the courts here – and the European Court – will accept the treaty as giving sufficient assurance that the alleged torture evidence will not be used.

I think the courts here and in Strasbourg probably will accept it. Applying the sort of approach set out by the European Court to assurances on the use of torture itself in last years Abu Qatada judgment (see para. 189), it seems to me this treaty passes the test since it contains guarantees that on their face seem effective, that are public, legally binding and made in the context of strong bilateral UK-Jordanian relations. Plus, by the time the case comes to Strasbourg again (as it may well) the UK courts will have tested the treaty’s reliability.

The current potential appeal to the Supreme Court is now of academic interest only – and permission’s less likely to be granted than it was a day ago. But when Jordan makes a request for him under this treaty, in my view a decision by Theresa May to surrender him is likely to be sustainable in the courts – and even in Strasbourg.

It’ll be a long road yet, and Theresa May may not be the Home Secretary who sees him board a plane. But today’s announcement is, I suspect, the turning point in this legal saga.

The Media Reform Coalition has spotted that the current proposals in the Crime and Courts Bill, inserted at the last minute to give statutory backing to the press self-regulation system the main parties have agreed on, may not work properly for small and online publishers, like bloggers. So I’m pleased to say it’s decided to consult them on what they’d like to see from the system.

Media Reform shares my concerns that the current proposals may on the one hand expose far too many blogs to the full “costs penalties” intended to apply to full-scale press operations, while at the same time locking them out of the “costs benefits” or protections offered to the press – even if they choose to be regulated. This could be the worst of both worlds for bloggers – who I think should at the very least benefit from the system, whether they choose self-regulation or not, on equal terms with the press.

The consultation asks who should risk being subject to exemplary damages and costs penalties if unregulated, and (something I think is crucial) whether respondents think the costs protections that flow from joining a self-regulator should be available to anyone who joins, whether or not they are a “relevant publisher” as defined in the current proposals.

It also asks about various options for exempting small blogs and publishers from the definition of “relevant publisher”.

You can read the consultation briefing document below (and you’ll see that I contributed in a small way to its drafting) and you can respond to the consultation here. There’s some urgency about this, as MPs will return to debate the system in two weeks or so.

If you’re a blogger or small publisher, please do respond to the consultation.

Parliament hasn’t yet published a text of the Crime and Courts Bill taking account of the recent Commons and Lords amendments dealing with press regulation. But seeing the provisions as they stand today may help discussion of the proposed system – which is widely misunderstood. So I’ve put together a version of the press regulation provisions, with what I think must be the current numbering.

There are a couple of things to note.

First, as I say, this takes account of the Lords amendments, agreed this week. They correct a drafting error, take a subsection out of clause 36 and add a paragraph to the Schedule to exempt small-scale blogs. No one should worry too much about the precise wording of paragraph 7A, by the way: it’s only intended as a Parliamentary device to allow the Commons to debate it and replace it with a proper exemption for blogs – it’s not actually intended to be law in itself.

Second, I’ve added a cross-heading above that paragraph – just to help readers identify it. (Actually, I’ve now realised the Lords have proposed putting that cross-heading in. Silly of me.)

I wrote the other day that I was confused about a new clause inserted into the Crime and Courts Bill, as a result of cross-party agreement on press regulation. As originally drafted it protected regulated publishers from costs awards in libel cases, for instance, if

the issues raised by the claim could have been resolved by using an arbitration scheme of the approved regulator

I wrote:

I have to admit that subsection (2) makes my head hurt, and may be beyond my comprehension. Why should it count against a publisher that a libel claim (say) could instead have been arbitrated under a self-regulator’s system?

Later, Dr Evan Harris commented to explain the reason for my confusion:

Don’t worry, This is because there is NOT missing between “could” and “have” in (2) (a). It now makes sense.

This is typical of the bad drafting by the DCMS and the MoJ of these clauses.

In passing, let me say that this suggests strongly the this legislation has indeed been drafted and tabled in an unsatisfactory rush, as many in the press have been saying. But in my experience, what strikes most people as bad drafting is rarely the fault of the drafter. It’s hard to imagine this mistake actually making its way into a bill (as it did) if government lawyers and Parliamentary Counsel had been given clear instructions on what was required – this is the most vital stage in the process – and enough time to make sure the draft worked.

To be fair to Parliamentary Counsel and the government lawyers involved, the politicians probably didn’t allow them anything like enough time, or give them the tools to do the job as they’d have wanted. They almost certainly pressed hard for both. The government’s legislative drafting “machine” does its job outstandingly well – if ministers let it.

If what the party leaders did was haggle over the text of the legislation itself (and this is always extremely tempting to the unwary), then they made a mistake. They’d have done better to focus on agreeing the clearest possible policy statement, in clear words that everyone, including the press, campaigners and Parliamentary Counsel, could understand – and giving as much detail as they could agree. It would then have been easier for the drafters to work over Easter (with public debate on the agreement continuing in the meantime, perhaps on a better informed basis) and to translate the policy into clear legislation that was right first time.

But the point of this post is to tell you that my headache’s now cleared up. Last night the Lords amended the bill to insert the missing “not”. As Lord McNally explained (column 849):

Government Amendments 17D and 17H make two technical amendments to the new clause on costs. The first refers to subsection (2)(a) of the costs clause. The intention of this provision is to allow for costs to be awarded against a regulated publisher only if the claim is not capable of being resolved through the regulator’s arbitration scheme. However, to achieve this, the word “not” must be inserted into the condition of subsection (2)(a), to avoid the opposite being the case. Amendment 17D simply corrects this drafting error.

The amendment was agreed.

Charlie Rowe as Ronnie Winslow | Photo: Nobby Clark

Terence Rattigan’s famous play, about a father’s fight for justice for his son, was first staged in London in 1946; and Lindsay Posner’s production at the Old Vic makes you feel you’ve seen it as it might have been presented then. It has a consciously old-fashioned aesthetic, with strong performances in, I thought, a studiedly stilted style. Ian Shuttleworth in the FT called it arid. I thought it more interesting.

The thirteen year old Ronnie Winslow is “sacked” from his naval college for stealing a £5 postal order. But the boy’s been treated unfairly, his stern father thinks. So Arthur Winslow takes on the might of the Admiralty, backed by his suffragette daughter Kate and his barrister, Sir Robert Morton KC.

Henry Goodman is, as you might expect, strong as Arthur Winslow – his performance is the most naturalistic by contemporary standards (or “organic”, to use Ian Shuttleworth’s word), showing the doubt and emotionalism of the man beneath the social and paternal surface. The part runs out of steam slightly towards the end, though, as Arthur’s energy wanes.

I was most interested by the lawyers, of course. Jay Villiers is outstanding as the solicitor Desmond Curry, giving a movingly tragicomic portrait of a man whose achievements are overshadowed by one great disappointment. He, like Winslow, carries his emotional grief as a wound. But the famous role is that of Sir Robert Morton, a strange, forbidding silk, and Tory politician. Peter Sullivan is positively repellent in the role, flooding the stage with a harsh, cold torchlight. I mean this as a compliment to a fine performance.

The play’s most famous scene is Morton’s cross-examination of “the Boy”, and Sullivan’s is more brutal than the cinematic ones I’ve seen, by Robert Donat, in 1948, and Jeremy Northam in 1999 – its closing line bringing the curtain down most dramatically for the interval. We’re told of, not shown, the hint of humanity under Morton’s cold exterior (except, perhaps, in the subtle respect and admiration Morton shows for Winslow père as the two men bond over whisky and soda). But this is a strength. In this production, Kate Winslow’s reaction to the “fish-like” Morton fully makes sense. His professional conduct threat against Curry is especially nasty.

The play’s terrifically Tory in sentiment. Winslow’s no radical. What moves him is a feeling of injustice by the state, the “new despotism” of Whitehall bureaucracy that A.V. Dicey had written about early in the twentieth century, and what seems to Winslow a breach of Magna Carta. It’s an attitude often seen today among “civil liberties” Tories, many of whom would support, red-faced, Winslow’s petition of right – but who’d loathe its modern counterpart, judicial review. It’s interesting that only Kate sees the cause in terms of human rights.

While its social and moral interest in men is deep, women aren’t for the most part taken seriously in this play. The silly woman journalist is especially hard to find funny in 2013. To be fair to Rattigan, Grace Winslow (Deborah Findlay) is given important lines about pride – lines that go to the emotional heart of the play, and which ask serious questions of anyone who’s ever claimed to fight in the name of “justice”. What’s more, Kate Winslow is portrayed both seriously and sympathetically – and Naomi Frederick fills the role well.

In a way, we today see the whole action from Kate’s point of view, and this perhaps shows Rattigan’s sympathies as wider than first appear. The final scene is built on the dramatic irony that we know Kate’s cause will triumph over Morton. More impressively, while he clearly admires the unbendingly repressed and righteous Morton, Rattigan seems through Kate to see what “freedom Toryism” looks like to social democrats: magnifique and magnanimous yet Quixotic and contradictory, selective and sentimental.

For anyone interested in law and the English, The Winslow Boy is an essential play. Its contemporary relevance is brought out all the more strongly by this deliberately “retro” production.