A pointless constitutional abuse

March 16 2012

By convention, the Queen grants Royal assent to legislation passed by the Lords and Commons. It’s only a constitutional convention that she does so: in other words, she does so because she herself, ministers, MPs and the public regard it as her constitutional obligation to do so. But as a matter of strict constitutional law, she is fully entitled to refuse or withhold her assent. If she did so, the Bill in question would remain an unenacted Bill, and would not become law.

But the last time Royal assent was withheld was by Queen Anne in 1707. It’s obvious that in a democratic society with a constitutional monarch, public lawmaking should not be subject to the will of one unelected person, however grand.

At least, that principle should normally hold. The convention need not be followed if in all conscience the Queen felt it did not bind her in an individual case. At first blush, that might seem to be an atavistic oddity, a strange remnant of the pre-democratic era. But the fact that grant of Royal assent is a matter merely of convention is actually a very useful constitutional arrangement. It gives politicians complete confidence that their legislation will become law – so long as they behave normally. But it also creates an area of uncertainty for them the moment they consider testing the boundaries of democracy and the rule of law.

So: when might it be constitutionally appropriate for the Queen to exercise her undoubted legal power to withhold Royal assent, and in effect veto Parliament’s legislation? I’d say (and I think most constitutional lawyers would agree) that this can only be contemplated where Parliament is attempting to change some democratic fundamental, for instance abolishing general elections, or postponing the next election for, say, five or ten years.

This is indeed one of the examples considered by Rodney Brazier in his excellent book Constitutional Practice which is my go-to reference on tricky constitutional issues (3rd edition, Oxford University Press, page 194):

If a government were to procure the passage of a Bill to prolong the maximum life of Parliament for no proper reason the Queen would certainly be acting as the ultimate guardian of the constitution if she were to veto the Bill.

He goes on to argue that she’d be better advised in most circumstances to dissolve Parliament instead, so that the electorate could decide whether to back the government’s plan.

My point is this: to invoke the possibility that the Queen should withhold Royal assent is not a trivial thing. To go further, and publicly call on her to do so, is effectively to claim we’re in constitutional crisis, and that extreme measures are needed to protect democracy.

Yet a number of organisations say they’ve petitioned the Queen asking her to withhold assent to the Health and Social Care Bill. Apparently they include the NHS Consultants’ Association, the National Pensioners’ Convention, the NHS Support Federation and Keep Our NHS Public.

I’m a strong supporter of the NHS and of the principle that it should be free at the point of use. I’m not a supporter of the coalition government, and have no particular reason to want this Bill passed. But the point is not, and should not be, whether we approve of the Bill or not. However strongly anyone opposes this Bill, it does not put democracy, human rights or the rule of law at stake. To toy with the constitution as part of a campaign like this is a fundamentally unserious act. It’s an insult to democracy and risks bringing the constitution – a much sounder set of arrangements than is often supposed – into disrepute.

It’s worth noting, by the way, that the petitioners haven’t even published their letter to the Queen, citing royal protocol. This takes the biscuit, making this silly petition sillier still. These organisations have not only tried to take our constitution back three hundred years: they’ve done so with an element of secrecy.

I realise it can be argued with some justice that the Health and Social Care Bill itself is not free of constitutional vice. As Lord Owen said in a statement on 9 March, when the government was ordered by the Information Rights Tribunal to publish its own transitional risk register associated with the Bill,

Surely now Liberal Democrat Peers, with a long and proud history of supporting freedom of information, will not go along with any attempt by the Coalition Government to continue with the Third Reading of this Bill in the light of today’s Information Rights Tribunal on the NHS Transition Risk Register.  If the Government insist on appealing to the High Court then they must accept that the Bill is paused until that judgement has been made ..

.. To go ahead with legislation, while appealing to the High Court, would be the third constitutional outrage associated with this legislation.  The first was to legislate within months of the Prime Minister promising in the General Election that there would be no top-down reorganisation of the NHS. The second was to implement large parts of the legislation without Parliamentary authority.

But these matters to not go to the root of democracy, nor does Lord Owen claim they do. He has adopted the more normal and appropriate tactic of tabling an amendment in the Lords.

My problem with the petition isn’t just a matter of constitutional pomposity – I’m concerned about the nature and level of our political debate. Testing the constitution to the limits for partisan purposes is the sort of thing the American populist right goes in for, and there it leads to political gridlock, brinkmanship over critical issues of public finance and deepening cynicism about the political process. I don’t want political debate here to become as coarse, as bar-room lawyerish and as cynical as that – but that’s where this sort of move could drag us if petitions become a more routine part of political squabbling and the Queen becomes selectively politicised. That this tactic – calling upon the unelected monarch to quash Parliament’s will – comes in this case from people who might claim to be on the left – that’s staggering and shameful.

It won’t succeed of course – which is yet another reason to oppose it. The constitutional convention applies, there’s no chance of Royal assent being withheld, and so all the petition amounts to is a stunt.

The organisations that have done this should ashamed, and should apologise for this pointless constitutional abuse. They’d do much better to support Lord Owen’s amendment.

2012-03-16T19:51:23+00:00Tags: , , , , , |

Humphreys v HMRC: Supreme Court, Day 2

March 15 2012

Yesterday I explained the facts and legal background to this case, and a short account of the first day of the hearing, which concluded just after 1 pm today. I was again in court to hear Jason Coppel complete his submissions for HMRC, and Richard Drabble briefly respond.

Jason Coppel began by stressing how little evidence there was that men are actually much more likely to be disadvantaged by the “one parent, main responsibility”  approach to payment of child tax credit embodied in the Tax Credits Act 2002, section 8 and the Child Tax Credit Regulations 2002, regulation 3. This seemed to be an attempt to resile from HMRC’s concession that the regime is indirectly discriminatory against men, and Lord Wilson picked Coppel up on that – his response was that his point was not about the existence of discrimination but about how fully it needs to be justified in the context of this evidence. I’m not sure this apparent to go behind what’s already been admitted helped HMRC, and indeed this morning saw a less commanding performance from Jason Coppel, whose submissions on the test for justification yesterday had been so impressive.

The most remarkable incident in the hearing was Lord Wilson’s impromptu judicial rant about Margaret Thatcher and the origins of the Child Support Act 1991. Lord Clarke had been exploring whether a family court could in some way make an order offsetting unequal entitlement to CTC – but Lady Hale explained that family courts can no longer order periodical payments for the benefit of children on divorce. This led Lord Wilson to ask, rhetorically, whether it was not true that Margaret Thatcher had come back from a visit to Australia in the last year of her premiership utterly convinced or the merits, including the merit of saving legal aid money, of having all consideration of financial support for children handled by a computer. This, he said, was the cause of what he called

the barrenness of the position of the family courts.

Lord Wilson never lost his composure during this intervention, but his less than positive view of this aspect of child support law was obvious to everyone in court.

Jason Coppel tried to argue that a court could take receipt of CTC into account in ancillary relief proceedings on divorce, but neither Lady Hale nor Lord Wilson was having that: they agreed that most financial orders on divorce are one-off, irreversible capital orders, and that it would be unreal to think receipt of CTC at the moment of divorce could have any influence over their content. This was a bad point for HMRC to make.

Jason Coppel was back on firmer ground when he turned to justifying the current CTC regime. He reminded the Justices that requiring CTC sharing in future would not be cost free, but would deny income to majority carers who might need it to buy important items for their children. It was not sensible to try to create a special sharing right only for minority carers in receipt of subsistence benefits like Mr Humphreys, since first, that would undermine the purpose of CTC – which was to deliver means-tested support regardless of parents’ work status – and would make the majority carer’s entitlement arbitrarily and unpredictably dependent on the working circumstances of their former partner.

Coppel relied on HMRC research showing that of 30 European countries, only 6 split their equivalents of CTC (Richard Drabble quibbled, later, with the reliability of the comparisons HMRC was making) and argued that in the current state of Strasbourg case law, the Court should be slow to interfere with ministers’ policy choice. He relied on Lord Bingham’s principle in Ullah v Special Adjudicator, that (see paragraph 20)

The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less

(which Lord Wilson called “an odd principle”), and cited Lady Hale in Clift v Home Secretary, at paragraph 63:

it is not for us to declare legislation which Parliament has passed incompatible with the Convention rights unless the Convention and its case law require us so to do.

Coppel argued that the Hockenjos case, so central to Mr. Humphreys’ argument, was wrongly decided for a number of reasons. Most interesting was that in his view Lord Justice Scott Baker had seen justification as involving a subjective element – in other words, what mattered was at least in part what thought government had given to justifying the policy at time they made it. That, Coppel argued, was wrong: what mattered was whether objectively, at the time a policy is challenged, the government can advance good policy reasons to justify it. He relied on R (Begum) v Denbigh High School in support of that proposition. Justification can he said be post hoc as long as it’s sound.

I think that point goes too far. I absolutely agree that justification is an objective exercise: what matters is the actual social justification of a policy, not what went through the minds of the policymakers at the time. I think post hoc attempts to use policy arguments that are clearly nothing to do with the policy-maker’s real aims are likely to run into difficulty, though.

We didn’t get much more clarity on potential remedies if Mr Humphreys wins: Jason Coppel argued, I thought very surprisingly, that this was an appropriate case for a ruling with prospective effect – in other words, deciding what the law means, but only allowing people to rely on that meaning in courts in the future. This is something domestic courts have never done but which was left open as an option one day by the House of Lords in NatWest v Spectrum, Lord Nicholls saying at para. 41

“Never say never” is a wise judicial precept

I think this Spectrum submission needed to be developed in much more detail than it was, though: it is not clear whether a prospective ruling on the interpretation of secondary legislation in a human rights context really is the same thing as the Lords were contemplating in Spectrum. Richard Drabble I think killed off this suggestion by saying it’s not appropriate in a statutory appeal, where Mr Humphrey’s statutory rights at the time of his CTC claim must be resolved. Lord Reed, nodding, seemed very much to agree with that. Again, I think this Spectrum point was an odd, and bad, one for HMRC to raise. They should really have been arguing that the difficulty in identifying a remedy testified to the lack of cogency of Mr Humphreys’ human rights argument.

Richard Drabble’s final point was to stress that what’s at stake is something very practical: who buys the tea and breakfast when the children are staying with a substantial minority carer? That seemed to me a fairly ineffective point, given that Lady Hale had several times stressed that whether CTC actually was spent on children was

the big “if”.

This was a less impressive day for HMRC, and if the justification point goes against them I’m sure their idea of a prospective remedy will get nowhere (of course its potential appeal to them is that it would avoid the cost of back claims relating to unpaid CTC in the past).

I think judgment in this case will be for HMRC, though, dismissing Mr Humphreys’ appeal and upholding the Court of Appeal’s ruling. I think the Justices are likely to conclude that HMRC is right about the test for justification and that in the social context, a “bright lines” approach to awarding child tax credit, even if it leads to some distributive unfairness at the margins, is justified.

 

2012-03-15T18:25:14+00:00Tags: , , , , |

My tweets from the Humphreys hearing

March 15 2012

Having live-tweeted the Humphreys v HMRC hearing in the Supreme Court yesterday and today, I thought I’d experiment with Storify so that if you’re interested, you can get a sense of the hearing by reading through my tweets and links.

You can either shuffle through them in the viewer below or click through to see the whole story from top to bottom on Storify.

2012-03-15T17:07:56+00:00

Humphreys v HMRC: Supreme Court hearing

March 14 2012

Today was the first day of the Supreme Court’s hearing in the case of Humphreys v HMRC, about sex discrimination in the child tax credit system.

Mr Humphreys is complaining about the fact that HMRC refused him child tax credit in 2004-5. His children were staying with him 3 days a week – and 4 days a week with their mother. He was therefore what you might call the “substantial minority carer” in a shared childcare situation.

The problem is that the child tax credits legislation only provides for CTC to be paid to one carer. Section 8 of the Tax Credits Act 2002 says

8.–(1) Entitlement of the person or persons by whom a claim for child tax credit has been made is dependent on him, or either or both of them, being responsible for one or more children or qualifying young persons.

(2) Regulations may make provision for the purposes of child tax credit as to the circumstances in which a person is or is not responsible for a child or qualifying young person.

The regulations made under section 8(2) are the Child Tax Credit Regulations 2002, regulation 3(1) of which lays down among other rules a rule to be applied in a case where a child normally lives with more than one person, where they don’t agree which should get CTC:

2.2 The child or qualifying young person shall be treated as the responsibility of –

(a) only one of those persons making such claims, and

(b) whichever of them has (comparing between them) the main responsibility for him (the ‘main responsibility test’)

It’s this “main responsibility test” that Mr Humphreys failed, since he was the minority carer.

His argument is that this test discriminates indirectly against men, since statistically they’re more likely to be substantial minority carers. HMRC doesn’t dispute that plank of his argument. But he also says that discrimination can’t be objectively justified by HMRC (as it must be in order to comply with human rights, specifically the article 14 Convention right not to be discriminated against in the enjoyment of his rights to property), particularly because of the effect losing that money had on him as a parent on benefits. HMRC argues that adopting a rough and ready (or “bright lines”) policy of giving money only to one parent can be justified because of the difficulty in designing the system so as to deliver finely calculated benefits for all. The fact that the system has apparently harsh effects in some cases doesn’t mean it can’t be justified in general terms.

Mr Humphreys initially won his discrimination claim at an appeal tribunal, but HMRC succeeded on appeal to the Administrative Appeals Chamber of the Upper Tribunal, whose decision was upheld by the Court of Appeal. On this final appeal to the Supreme Court (of course if he loses he’ll be able to apply to the European Court of Human Rights; but that’s not strictly an appeal) the issue is solely and squarely whether HMRC’s policy is justified in law.

Today’s hearing focused mainly on two legal questions: first, what test the court should apply when deciding whether HMRC’s policy is justified, and secondly what kind of legal remedy it can offer if it rules the policy unjustified.

On justification, Richard Drabble QC for Mr Humphreys argued that in spite of what appeared to emerge from various cases the correct test is not whether the policy “manifestly has no reasonable foundation”, but something more demanding – he seemed to be arguing at one point that when he used that phrase in Axa v Lord Advocate (para. 31) Lord Hope was merely deciding whether the policy in question in that case had a legitimate policy aim at all – not whether it was justified by that aim.

Jason Coppel’s response later in the day was to cite a battery of cases (Carson & Reynolds v Work & Pensions Secretary, Hooper, RJM and Stec v UK) in support of his contention that, at least in a social welfare policy context such as this, the “manifestly without reasonable foundation” test was indeed the right one – so that he only needed to establish that HMRC’s policy has a reasonable foundation, in order to justify it in law. I used to advise DWP in this area of law, and indeed worked on the Reynolds case and others like it many years ago, so you may think I’m biased, but Jason Coppel’s submission on this point were clearly the more focused and compelling. I think HMRC must win this point; Coppel must though tomorrow set out what his “reasonable foundation” is.

On remedies, I thought Richard Drabble’s approach confused: when pressed by the Justices he said he was arguing that rule 2.2 – the “main responsibility test” I outlined above – should be “disapplied” in Mr Humphrey’s case. That sounds all right on a superficial level, but I thought as I heard it that it smelled a little too like an EU law approach to remedying the position – and indeed Drabble placed throughout his submissions a great deal of emphasis on the case of Hockenjos v Social Security Secretary which is quite analogous to this case – except that it was an EU law, not a human rights, case. I wonder whether that’s somehow blurred Richard Drabble’s thinking on remedies.

Lord Walker seemed to feel the same unease and suggested Richard Drabble ought to be considering section 6 of the Human Rights Act as his answer – implying (he didn’t say so) that the remedy might be to strike down the rule 2.2 main responsibility test entirely as having been made unlawfully. That led to the – I thought extraordinary – statement by Richard Drabble that a remedy under the Human Rights Act was his “fallback”. I can’t understand how it can be other than his first and last preference, in a Human Rights Act case. On this point, Jason Coppel will reply tomorrow.

For what it’s worth, I think the proper approach to remedies (assuming for the sake or the argument that the discrimination can’t be justified) must be first to consider whether rule 2.2 can be read or given effect in a way which is compatible with the article 14 Convention right, under section 3 of the Human Rights Act. I’d have thought Mr Humphreys’ best argument would be that it can’t (it’s difficult to see how it can; and I’m not sure simply selective disapplication is a legitimate method) and that it must therefore be struck down as in breach of section 6.

Be that as it may, at roughly half time I’d say HMRC is comfortably ahead.

2012-03-15T02:29:29+00:00Tags: , , , |

Without Prejudice

March 9 2012

In Without Prejudice this week Charon QC chairs a free speech special.

Nick Cohen, writer, journalist and author of You Can’t Read This Book joins barrister, policymaker and former Conservative candidate Joanne Cash, David Allen Green and me to talk about free speech in Britain today including:

  • threats to free speech from extreme religion,
  • the need for libel reform
  • privacy law, and whether Britain needs its own “First Amendment” and
  • government plans to allow very free speech to employers in the form of “protected conversations”.

I agree with what Joanne says about Nick Cohen’s book: it’s a serious look at the culture as well as the law around free speech today, and makes important points about self-censorship particularly by those who think themselves liberal, and about the free-speech-free zone that is work. I’m really pleased he was able to come and talk to us.

You can also hear Joanne speak up for a British First Amendment and against privacy law, David say I’m talking poppycock (as usual) and a nice but short exchange about the legality of the Iraq war.

Listen to the podcast here – or or subscribe through iTunes.

2012-03-09T11:42:36+00:00Tags: , , |

Karen Murphy’s costs

March 8 2012

When I wrote a couple of weeks ago about Karen Murphy’s successful appeal against conviction for dishonestly receiving a broadcast with intent to avoid payment under section 297(1) of the Copyright, Designs and Patents Act, I mentioned that there was a long argument about costs:

Martin Howe QC, for Ms. Murphy, argued that the case should be treated as civil proceedings … and that under the relevant provisions of the Civil Procedure Rules, costs should “follow the event” and be paid by the loser … James Mellor QC for MPS argued that the case was criminal, and so under the relevant practice direction should only be payable by the prosecutor if the case has been wrongly brought – which he said could not be the case since it involved the plain application of legislation.

Well, today Lord Justice Stanley Burnton and Mr Justice Barling have given judgment on the question of costs, largely in favour of Ms. Murphy. They’ve decided that the civil regime should be applied (paras. 15-19):

15. Clearly, save in exceptional cases, prosecutions and appeals in criminal cases should be and will be subject to the criminal costs regime. However, the present case is unusual. The prosecution was brought by the respondent in order to protect a very substantial profit stream for the Football Association Premier League Ltd (“the FAPL”) …

17. The reality is that these proceedings were part of a broader campaign to protect a private interest of the FAPL. Of course, private prosecutors may prosecute cases that affect their private interest. Shoplifting prosecutions are an obvious example. But those cases involve general dishonesty rather than the question whether the defendant genuinely relied on a solicitor’s legal advice. Indeed, the finding of the Crown Court that the appellant “hid behind the legal advice as a convenient shield behind which to hide her dishonesty” is questionably adequate. The factual findings made by District Judge Sanders in the judgment to which we have referred fortify us in this conclusion, in particular his finding that FAPL retain overall control of the prosecutions brought by MPS and that FAPL has given MPS an indemnity against any award of damages and any order for costs made against it. It is finally difficult to believe that a public prosecutor, concerned that a defendant should not be wrongly convicted, would have resisted the application for a reference to the Court of Justice, and would have submitted, as the respondent did in its skeleton argument for the 2007 hearing in this Court, that “There is no matter of EU law for the Court justifying a reference under Article 234 EC. …. this court can reject the Appellant’s case on EU law with complete confidence …”…

19. In our judgment, these circumstances justify the application of the civil costs regime.

Ms. Murphy hasn’t been awarded all her costs, quite: some non-EU legal issues were argued in the Magistrates’ and Crown Courts on which she lost and for which the judges have ruled she should bear the cost, which amounts to a quarter of the costs of those two hearings.

But the bulk of the costs involved in the case were those of this appeal, which of course she has won. So Media Protection Services (underwritten, as the judges say, by the FA Premier League) will have to pay all her costs for that, and three quarters of her costs in the courts below – the vast majority, surely, of the total costs bill claimed by Karen Murphy of nearly £700,000. The actual amount they pay will depend on agreement, or detailed assessment.

In my view this is a reasonable result – although I don’t say a fair one, because I could understand if Karen Murphy felt she should recover all her costs, since the criminal law was used against her by private commercial interests, without a proper legal basis.

The amount of costs at stake here shows two things. First, how eye-wateringly expensive and risky it can be for an individual to take on powerful commercial interests, even when criminal charges are at stake; and second, how relatively small the downside risk is for those powerful commercial interests trying to exploit the criminal law against individuals, even if they’re on dodgy legal ground from the start.

Is even six hundred-odd grand that much, if you’re backed by “big football”?

2012-03-08T18:01:59+00:00Tags: , |

Attorney General “considers concerns” over Akers’ evidence to Leveson

March 6 2012

When I saw Deputy Assistant Commissioner Sue Akers give evidence to the Leveson inquiry last week, I did wonder for half a moment whether it could be sensible or right for her apparently to make statements about what had happened at the Sun as though it were fact – when people had reportedly been arrested and presumably prosecutions were possible.

I wish I’d tweeted my concerns at the time. But to be honest they subsided almost instantly: I vaguely assumed, as I’m sure most observers did, that her evidence had been supplied in writing in advance and had been advised on by everyone’s lawyers, perhaps negotiated in long discussions and in any case cleared by the police’s own lawyers, by the CPS and by the inquiry team. I assumed she gave her evidence – and that Lord Justice Leveson heard it – quite confident that any possible prosecution could not be prejudiced.

Now, though, the Guardian is reporting that a complaint has been made to the Attorney General; and the Attorney’s spokesman is saying:

Evidence given during the Leveson inquiry has been drawn to the attention of the Attorney General’s Office. The Attorney General will consider the concerns raised.

It’s important to be a bit cautious about this: all my earlier assumptions may have been correct, and there may be no difficulty with this evidence at all. It may be simply that someone without full knowledge of all the background Sue Akers is aware of has thought there might be a problem, and that the Attorney’s Office must say it’s “considering” the matters raised, but will very soon say there’s no problem. There may not be anything to see here. Avoiding the risk of prejudicing prosecutions was always a crucial problem for Leveson, and I find it incredible anyone can possibly have taken their eye off the ball.

But if lawyers at the Attorney’s Office really do fear a possible contempt of court here – either under section 2(2) of the Contempt of Court Act 1981 or at common law as a statement calculated to interfere with the administration of justice – it would be truly astonishing news, and could throw the entire Leveson process into disarray.

There are interesting legal issues involved here: whether Sue Akers’ evidence was a “publication to a section of the public” for the purposes of the strict liability rule under the 1981 Act; whether, if not, she could be said to have the required state of mind to commit common law contempt; and the legal position of the media in reporting her evidence.

The Attorney, Dominic Grieve, has shown real anxiety to clamp down on contempts of court, and in the Chris Jefferies case last year succeeded in establishing contempt even where there was (as it turned out) no trial to prejudice – because the course of justice was impeded or put at risk as at the date of publication.

I’m waiting for further news from the Attorney General’s Office.

2012-03-06T23:44:29+00:00Tags: , |

BT & TalkTalk v Business Secretary

March 6 2012

The Court of Appeal has today rejected the appeal by BT and TalkTalk in their judicial review of the Digital Economy Act 2010. This is a disappointment for digital rights campaigners, but not legally surprising – the arguments made by BT and TalkTalk never looked strong, and Mr Justice Kenneth Parker’s original judgment in the Administrative Court was difficult to fault (as I said on Without Prejudice almost a year ago, from 41’07”).

Sections 3 to 18 of the Act amend the Communications Act 2003, and provide that, once an “initial obligations code” has either been agreed by relevant players in industry or imposed by Ofcom, copyright owners should be able to send internet service providers “copyright infringement reports” of alleged copyright breaches by their subscribers. The ISP must then notify its subscribers of their alleged breaches, and may then be required to send a copyright holder a “copyright infringement list” of the number of notifications sent by the ISP to subscribers. Provision is also made for the possible, future introduction of obligations on ISPs to take technical measures limiting or even suspending individual subscribers’ internet access in appropriate circumstances – to be laid down by ministers, and fleshed out by Ofcom, again in a code.

The first argument for BT and TalkTalk (the first of a somewhat kitchen-sinkish list of EU law complaints) was that the new requirements should have been notified to the European Commission under the Technical Standards Directive – and because they were not, they’re unenforceable. The government’s defence was that the need to notify only arises when the details of the code are clear – the framework Act does not have legal effects in itself. Lord Justice Richards (with whom Lady Justice Arden and Lord Justice Patten agree) upheld Kenneth Parker J’s ruling for the government (paras. 41-42)

41.           … there is not a lot of point in troubling the Commission and other Member States with something that is inchoate. Informed comment depends on there being a worked-through draft, especially as consideration of issues of proportionality depends on the detail.

42.  The judge was right to find that the contested provisions do not have the “legal effects” described by the court’s case-law. The “initial obligations” of ISPs under sections 124A and 124B are conditional on there being a code in force under section 124C or 124D … Moreover the Code is to be made for the purpose of regulating the initial obligations, and the scope of those obligations will be dependent on the detailed content of the Code. Whilst the statute prescribes various basic features of the Code, it leaves very considerable freedom for the working out of the detail.

Secondly, it was argued that the burden imposed on ISPs by the new notification provisions makes them “liable for the information transmitted” contrary to Article 12(1) of the E-commerce Directive. This was also rejected (paras. 59-60), as was the ISP’s complex argument that the provisions breach Article 3 of the E-commerce Directive because they restrict freedom to provide “information society services” (internet services to you and me) throughout Europe. This was always likely to be an uphill argument since the Annex to the Directive expressly takes copyright out of the scope of Article 3, and again, Richards LJ rejected it (para. 63 and 70-71):

63. The expression “copyright” in the Annex is not defined. The Secretary of State’s contention, accepted by the judge, is that it has its normal meaning, encompassing all aspects of the law of copyright under national laws, that the contested provisions were taken for reasons falling within the field of copyright in that sense, and that Article 3(2) therefore does not apply to them. The appellants submit that “copyright” in the Annex has a more limited meaning, referring only to the substantive law of copyright under national laws and to such measures for the protection of copyright as have been introduced by [the Copyright] Directive 2001/29/EC … that the contested provisions do not relate to copyright in that sense; and that they are incompatible with Article 3(2) …

70. At the time when the Electronic Commerce Directive was adopted, “copyright” in the Annex to the directive must in my view have had its normal meaning, encompassing all aspects of the law of copyright under national laws, and cannot have had the elaborate meaning attributed to it by the appellants …

71. In my judgment, that is sufficient to dispose of the appellants’ case under Article 3 of the Electronic Commerce Directive.

The claimants argued that the provisions breach Article 8 of the Data Protection Directive but this was again rejected, Richards LJ agreeing with Kenneth Parker J (para. 77 of Richards LJ’s judgment) that any data processing required by the new provisions was

necessary for the establishment, exercise or defence of legal claims

and so permitted by Article 8.2.e of the Data Protection Directive.

BT and TalkTalk argued that the new Digital Economy Act provisions also breach the Privacy in Electronic Communications Directive, but Richards LJ, applying Case C-275/06 Promusicae, upheld the ruling of Kenneth Parker J that Article 15 of the Directive permits member states to legislate to limit confidentiality for the purpose of effectively protecting copyright.

The next, and somewhat tortuous, argument was that the notification provisions breach the E-communications Services Authorisation Directive read with the Framework Directive. The argument was essentially that any notification system like that established by the Digital Economy Act must by law be contained in the “general authorisation” required under the Authorisation Directive, and could not lawfully be contained in it because of Article 6.3 of the Directive. That argument faced the hurdle of Article 3.1 of the Framework Directive, which says:

This Directive as well as the Specific Directives [which include the Authorisation Directive – Carl] are without prejudice to measures taken at Community or national level, in compliance with Community law, to pursue general interest objectives, in particular relating to content regulation and audio-visual policy.

As I say, a tortuous argument was put forward to try and surmount this, but it failed. Richards LJ said at para. 95:

Notwithstanding those submissions, I find the judge’s analysis convincing. Article 1(3) of the Framework Directive is apt in my view to permit the contested provisions by way of derogation from the Authorisation Directive, as measures taken at national level to pursue general interest objectives. The recitals to the Framework Directive tend to support that view and certainly contain nothing to undermine it.

The one point on which the appeal succeeded was on the issue of costs, on which BT and TalkTalk had already scored a consolation goal in the first instance judicial review. Kenneth Parker J had ruled that the “qualifying costs” imposed by the new regime on ISPs – the costs incurred by Ofcom or the appeals body in carrying out its functions under provisions – breached Article 12 of the Authorisation Directive, which limits the types of adminstrative charges which can be imposed on ISPs.

Richards LJ agreed with this (that point was not appealed by the Business Secretary), and that another category of costs, the “relevant costs” which would be reasonably incurred by an ISP in carrying out its notification obligations, was lawful.

Where he disagreed with the judge below, and gave BT and TalkTalk a small victory in this appeal, was that he saw a third category of costs, the 25% “case fees” charged to ISPs by the appeals body in respect of each subscriber appeal, as also in breach of Article 12.

The last argument rejected was a general one that the provisions breach the principle of “net neutrality” enshrined in Article 8.1 of the Framework Directive, and discriminated against bigger ISPs by giving special exemptions to smaller ISPs. An interesting argument, this: while the net neutrality argument might appeal to digital rights campaigners, I doubt very much that the discrimination argument does. Had it succeeded, it would have meant the notification system had to to cover smaller ISPs as well. Richards LJ gave it short shrift (para. 111):

The judge’s conclusion was soundly based on detailed evidence submitted on behalf of the Secretary of State. He was plainly entitled to take the view that the exclusion of smaller ISPs and MNOs represented a proportionate response; and in the circumstances I do not think that anything material is added by recourse to the principle of non-discrimination or the desirability of technological neutrality.

Finally, the claimants wanted a reference to the European Court of Justice, unsurprisingly, given the multiplicity of apparently convoluted readings of EU legislation they’d relied on. But this was also rejected (para. 112):

The appellants requested that if we were in doubt about any of the issues raised in the appeal we should make a reference to the Court of Justice. Kenneth Parker J declined to make a reference, stating at [264] that “the questions of European Union law raised by this judicial review admit of clear answers, and I do not believe that any useful purpose would be served by my making a reference”. I am of the same view.

So the appeal has failed except on “case fees” – the government will now have to decide whether it should underwrite those, or whether to impose the entire burden of the fees on copyright holders. No doubt many would see that as the better solution.

In principle BT and TalkTalk could seek permission to appeal to the Supreme Court on the basis that these are legal questions “of general public importance” – and they might be tempted simply because under EU law the Supreme Court is in theory obliged, rather than merely able, to refer a question of interpretation to the European Court if it’s necessary to do so. In a campaigning judicial review like this, a reference, with the delay of perhaps two years and the uncertainty it would cause, would be a victory in itself.

But I doubt they’d get permission. I’m not sure these really are questions of general public importance or that, given the generally uphill nature of some of the submissions made, the Supreme Court will be interested in hearing them or think a reference to Europe is necessary.

The Digital Economy Act is coming: ministers should soon be able to give Harriet Harman what she wants.

2012-03-06T15:52:16+00:00Tags: , , |

Without Prejudice

March 2 2012

Charon QC chairs Without Prejudice as usual as Gary Slapper, Times Law columnist and Director of NYU in London joins David Allen Green and me to discuss:

  • civil disobedience and the rule of law
  • the “Sedley v Sumption debate” about whether judges are becoming too political
  • the Leveson inquiry, and whether the News of the World tried to undermine a murder investigation, and
  • whether the rank of Queen’s Counsel should be abolished.

Here’s Jonathan Sumption’s FA Mann lecture and Sir Stephen Sedley’s LRB article in response, both of which we discuss. I’m the only one to speak up for Sumption who, in spite of some effective small thrusts Sedley makes against him, was I think making a real and important point.

Listen to the podcast here – or or subscribe through iTunes.

2012-03-02T14:57:16+00:00Tags: |

Draft Brighton Declaration on reforming the ECtHR

March 1 2012

Thanks to Antoine Buyse of the ECHR Blog, whose post at the UK Human Rights Blog alerted me to the leak of the UK’s draft declaration on reforms to the European Court of Human Rights, for agreement by the member states of the Council of Europe at Brighton in April. Thanks too to the Guardian, who published the English text.

Here it is – you can read my comments starting from page 4.

Some of what’s proposed has been pretty well trailed – the suggestion that references to subsidiarity and the margin of appreciation be inserted into the European Convention on Human Rights, for instance, and the proposed new rule that applications will be inadmissible if they cover the same substance as a case already looked at in ECHR terms by a national court, subject only to a “clear error or serious interpretative question” exception.

What’s more surprising is the proposal that the European Court of Human Rights should be given a new jurisdiction to give advisory opinions at the request of national supreme courts, a little like the European Court of Justice’s “preliminary rulings” in EU law. The proposal appears to be that this would be in addition to, rather than a substitute for, individuals’ right to apply to the Court. Nonetheless I think it could help shift the emphasis of the Court towards a more clearly reviewing and supervisory jurisdiction at least in relation to those states who opt into the advisory opinion procedure, and in combination with the new “same substance” admissibility rule. This is I think a shrewd proposal.

Also surprising is the suggestion that the Court’s rulings should be backed by financial sanctions – that’s an idea that could come back to bite the UK if the current stand-off between the government and the Court about prisoners’ votes isn’t resolved. The idea is an excellent one, which if agreed will help make compliance real in those states with a much worse record than the UK. No doubt it’s also been included so as to stress that the UK wants reform, quality and effectiveness, not to weaken the Court.

My hunch is that ministers think they’ll succeed, ultimately, in satisfying Strasbourg with a relatively modest grant of votes to prisoners – and that in any event some votes for prisoners will be a reasonable price to pay for serious reform in Strasbourg.

2012-03-01T14:44:08+00:00Tags: , |
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