Digital Economy Act judicial review: statement of facts and grounds

October 21 2010

Thanks to the Open Rights Group for letting me know that TalkTalk have published the joint statement of facts and grounds they filed this summer in the judicial review challenge they’re mounting, together with BT, against the Digital Economy Act.

I won’t comment on the main arguments now – I’ll do that when I have more time (and when I’ve seen the government’s defence, if I can get it from the Administrative Court). In summary, though, they’re claiming the Act breaches three EU Directives: the Technical Standards Directive, the E-Commerce Directive and the Privacy and Electronic Communications Directive.

R (BT and TalkTalk) v Secretary of State for Business: statement of fact and grounds

They do rely on EU free movement law and human rights too, but those seem to me to be secondary arguments. I’m not sure how they think the free movement arguments work, since I assume neither firm is exercising free movement rights by providing services in the UK – but they’re having a go. I don’t think the arguments they make about the supposedly flawed nature of the government’s assessment of proportionality cut any ice, either: what matters is whether or not the Act actually is a proportionate interference with either EU rights or human rights – not whether the government thought in the wrong way about proportionality.

2010-10-21T18:00:48+00:00Tags: , , , , |

Legal advice at the police station – French and Scottish style

October 20 2010

It used to be common in England to suggest that criminal justice was better in France or in Scotland. Well, each is another country, and they do things differently there. I’ve absolutely no doubt some of their laws are better. But as far as rights at the police station are concerned, they’re struggling to keep up.

In Scotland, they’re waiting for the Supreme Court’s judgment next Tuesday in Cadder v H.M. Advocate on whether the questioning of a suspect without access to a lawyer is in breach of the right to a fair trial, Scottish legislation astonishingly allowing access to a lawyer only after the police have had six hours to interrogate you first. The answer seems fairly obvious, given European Court of Human Rights rulings on the point in cases like Salduz v Turkey, and Lord Advocate Elish Angiolini has anticipated it by issuing interim guidelines in the meantime. These still don’t match English standards, though – in particular they don’t set a clear enough test for exceptionally delaying access to a lawyer or interviewing a suspect without one – and Justice isn’t satisfied with them. In the meantime, the prospect of the Cadder judgment is causing some concern in Scotland.

It’s reform time in France too, where suspects’ right to consult a lawyer are amazingly constrained, from an English perspective: once taken into custody for questioning (garde à vue), you’re only allowed a 30 minute interview with a lawyer, who is not permitted to be present while you’re interviewed. Under a new reference procedure the Conseil Constitutionnel decided in July that this breaches the constitution, but deferred the effect of its ruling to allow the legislature until next July to amend the Code of Criminal Procedure. Then France lost in the European Court of Human Rights earlier this month in Brusco v France (only available in French, I’m afraid), partly because of the absence of a lawyer during questioning. This week the Cour de Cassation followed up with a ruling that access to a lawyer cannot be delayed merely because of the category of offence a suspect is arrested for, as the current rules allow. Here’s Le Monde‘s news story about that ruling.

So the justice minister Michèle Alliot-Marie has tabled draft legislation that would give a right to be accompanied by a lawyer when questioned. That’s a major breakthrough, but the reform allows access to a lawyer to be delayed for up to 12 hours by written authorisation of a prosecutor for the purpose of permitting (my translation)

the smooth conduct of urgent inquiries with a view to collecting or preserving evidence

which doesn’t strike me as a very high test.

Worse, while creating rights with one hand, the proposal takes them away on the other by allowing the police to question a suspect outside the police station in what’s called an audition libre. The idea is that in future, instead of arresting suspects and taking them into custody for questioning (with the new, irritating right to have a lawyer there) the police will normally ask suspects to consent to be interviewed – perhaps on the spot upon arrest, or at home, or even perhaps at a police station – without any right to legal assistance at all, and without limit of time. Yes, you’ll be able to stop questioning at any moment. But then you’ll be detained. It’s a system aimed at pressurising suspects into giving up their Convention rights, and in my view probably breaches the right to a fair hearing. No wonder Le Monde calls the proposals an “optical illusion” of reform.

To ministers in Edinburgh and Paris, I commend the Police and Criminal Evidence Act 1984, and Code C issued under it. Some things the English and Welsh do better. Which is why it was especially depressing to hear the new justice minister Jonathan Djanogly, interviewed by Joshua Rozenberg on Law in Action this summer, say in the context of reforming criminal legal aid that he does not think the personal presence of a solicitor is always needed at a police station, and that a telephone interview may sometimes suffice. (You can still listen to the programme – he talks about this at about 20’35”).

Maybe, in a few cases. I worry though that his comment reflects a backsliding attitude on fundamental, practical rights. As Scotland and France move reluctantly forwards, England and Wales should not go willingly back.

2010-10-20T19:19:16+00:00Tags: , , , , |

That burdensome sex discrimination law

October 10 2010

I just happened to be walking past the Anatolian Flame restaurant, round the corner from me in Willesden, and couldn’t help noticing this job advert which I think must be in breach of section 6(1)(a) of the Sex Discrimination Act 1975 section 39(1)(a) of the Equality Act 2010*. Rules and regulations are such a burden on business, aren’t they?

As a matter of interest, a couple of years ago the Anatolian Flame was unpopular with one of its neighbours for another slight legal oversight.

*Thanks to “Stopitandtidyup” for correcting me in comments, the Equality Act being in force this month. I’m annoyed with myself for missing that!

2010-10-19T18:39:17+00:00

Charon QC podcast: William Hague’s “National Sovereignty” Clause

October 8 2010

I know I’ve been away a few weeks – we all need a blog break occasionally – but I’m back with a bang, with a piece at the Guardian Law website yesterday on William Hague’s proposed “national sovereignty” clause, which he intends to put before Parliament in his EU Bill later this year to “reaffirm once and for all the sovereignty of our ancient parliament”. I think he’s monkeying around with the constitution:

There is no need to enshrine parliamentary sovereignty in legislation. Indeed, doing so is in the truest sense redundant: a national sovereignty clause can only have legal authority because of the existing common law rule that parliament is sovereign. What’s more, Hague’s clause will need to be carefully drafted to make sure it cannot possibly be read as in any way affecting or limiting the common law sovereignty on which it depends – or it could have unintended but far-reaching constitutional ramifications.

Read the whole thing here. I’m amazed that the Conservatives of all people should have got themselves so muddled about the legal relationship between the UK and the EU, and about what Parliamentary sovereignty is, that their foreign secretary is putting forward legislation interfering with the absolute essence of our legal system, and arguably representing the biggest single step we’ve ever made towards a written constitution – something that’d be a historic mistake, and hardly a conservative move.

I also spoke to Charon QC about this today, and recorded a podcast about it in which I do my best to explain Parliamentary sovereignty in a nutshell, then to set out what I think the problems are with Hague’s proposal, including what might happen if it’s repealed, the need for it to be drafted more carefully than perhaps any legislation has been before and the dangers of creating a “two-tier” system of sovereignty. Charon’s absolutely right, at the beginning of our talk, to call Hague’s idea “extraordinary”.

Listen to the podcast here.

2010-10-08T18:05:31+00:00Tags: , , , , , , , |

The Fixed-term Parliaments Bill

September 9 2010

Regular readers will know I’m opposed to fixed-term Parliaments. But that point of principle isn’t the only reason to be concerned about the Fixed-term Parliaments Bill.

The Clerk of the House of Commons himself, Malcolm Jack, has expressed concerned about it, apparently, in his evidence to the Political and Constitutional Reform Committee, comments I first heard about from Charon QC (who else?).

I’m not sure how the Clerk brings the European courts into it (the Bill raises no issue of EU law, and I can’t imagine why anyone could want to rely on the article 3 Protocol 1 Convention right to free elections to oppose the calling of an early election), but he must be right in principle that legislating to lay down a procedure for calling early elections makes it possible for people to challenge in court the calling of such an election.

I agree that the legislation is unwise: it’s wrong in principle for the coalition to meddle with the constitution merely in order to bind itself together politically itself by barring David Cameron from cutting loose of the Liberal Democrats. The bill is pointless for any other purpose, since clause 2(2) clearly permits the coalition to go to the polls early (just as the PM could unilaterally until now) through a vote of no confidence in itself followed by a refusal to pass a vote of confidence in anyone else:

An early parliamentary general election is also to take place if the Speaker of the House of Commons issues a certificate certifying that—
(a) on a specified day the House passed a motion of no confidence in Her Majesty’s Government (as then constituted), and
(b) the period of 14 days after the specified day has ended without the House passing any motion expressing confidence in any Government of Her Majesty.

There’s more specific cause for concern in the detail of clause 2, though – a clause which gives truly extraordinary power to both the Speaker and the Prime Minister. Subsection (1) does not, as the explanatory notes misleadingly claim, provide

for an early election if the House of Commons passes a motion that there should be such an election.

In fact it provides for an election if the Speaker issues a certificate saying a motion has been passed, which is quite different. The Bill does not say in terms that the Speaker must issue such a certificate; in fact clause 2(4) says he must consult his deputies before doing so, which may be a merely procedural requirement, but does raise the question what he could possibly consult them about, if he’s obliged to issue one anyway. I suppose none of us doubts that the Speaker would issue a certificate pretty promptly. It does seem extraordinary, though, that the Bill should not make Parliament’s intention crystal clear on the basic question of whether he has to – and if so, when – or whether he merely may do so. That certainly would need testing in the courts, if a Speaker kept the country waiting.

But it gets more extraordinary yet. Clause 2(3) provides that

A certificate under this section is conclusive for all purposes.

which means no one can challenge the Speaker’s certificate by arguing about who voted, or whether a motion was truly a motion of no confidence, etc.. All of which seems fairly sensible at first blush. But it’s worth reflecting on clause 2(3) for a moment – it purports to make the Speaker’s certificate conclusive, and for all purposes, so putting it in effect beyond any possible challenge. That being so, what’s to stop the Speaker from calling an election unilaterally by simply issuing a certificate whenever he fancied, even if a motion of no confidence had never even been tabled? After all, no one could object to it in court on the basis that no motion had been passed – the Speaker’s certificate would, by law, be conclusive on that. I can imagine an argument akin to that which succeeded in the (to public lawyers) well known Anisminic case, that a certificate in these circumstances was no true “certificate” at all, and so not conclusive. But litigation of that sort doesn’t bear thinking about.

Clause 2 contains something else yet worse, if that’s possible. Clause 2(6) provides that the date for an early election is to be

the day appointed by Her Majesty by proclamation on the recommendation of the Prime Minister

which means it’s set not by the Queen, but by the Prime Minister – and without any apparent limitation on what date he may recommend. Why not recommend a date a year away, or two, or three? Why not recommend a date ten years off? Again, I can imagine a legal argument based on the Padfield principle that the PM must use his discretion in line with the purpose of the provisions, not thwart that purpose. But it does seem unsatisfactory to rely on that principle alone to check the PM’s otherwise unlimited power. And even if we just consider what’s politically likely to happen, it seem strange that legislation supposedly aimed at taking power away from the PM should leave him with the undoubted power to choose whether to have an election in twenty days’ time, or fifty – a range of discretion within which I would have thought it difficult to challenge his recommendation in law. The Liberal Democrats would be wise to notice that this bill puts that power in the hands of one man – not two.

No doubt supporters of the coalition will want to dismiss thoughts like these as mad hypotheticals, as they did concerns about their proposed “55%” rule (before they sensibly backed off). But it’s not good enough to leave these matters open, trusting individuals with what on their face are extraordinary, Cromwellian constitutional powers (though to be fair, even Cromwell’s Instrument of Government tied him down more precisely on this sort of thing: see article XI).

We must never let these people try to draft a written constitution.

2010-09-09T17:54:14+00:00Tags: , , |

The Law Commission, regulation and civil sanctions

August 27 2010

I wrote yesterday at Guardian Law about the Law Commission’s new consultation paper on Criminal Liability in Regulatory Contexts, which has been reported as proposing the repeal of minor criminal offences:

The alternative approach proposed by the Law Commission is no soft option – and no civil libertarian’s utopia, either. Relying on the existence of criminal sanctions alone as we often do now can be a lazy and relatively non-intrusive way of enforcing standards of behaviour: we do what’s expected of us largely for fear of “illusory or empty threats of criminal prosecution”, as the consultation paper puts it …

Using civil sanctions instead presupposes the existence of regulatory quangos, and requires active inspection by officials empowered to issue us with “stop notices”, “discretionary requirements” and fixed penalties

You can read the whole thing here. I welcome the proposals: I think more, and especially smarter, less heavy-handed state intervention to improve the civility of life generally would be a good thing. I’m not the sort of person who complains about a nanny state (not often, anyway). I’m more inclined to complain about the lazy absentee state who’s not there when you need it, or which treats you as a felon for doing something pretty minor (like, say, not renewing your tax disc).

2010-08-27T16:05:21+00:00Tags: , , , |

That American stem cell ruling

August 25 2010

On Monday Federal District Judge Lamberth gave a surprising ruling in Sherley v Sebelius, handing down an injunction preventing new US health guidelines on human stem cell research, drawn up on President Obama’s instructions, from being given effect on the basis that they breach legislation that prohibits the use of federal funds for

research in which a human embryo or embryos are destroyed

This is the “Dicker-Wickey amendment” first passed by Congress in 1996, and on the basis of which the Clinton administration permitted funding for research on embryonic stem cells (but not the derivation of those cells from embryos, which involves the destruction of embryos) and which even the Bush administration, whose guidance President Obama has now relaxed, thought permitted funding of research on existing stem cell lines. Here’s the ruling.

Sherley v Sebelius

The judge’s reasoning (which to me, frankly, seems poor) is that in the Dicker-Wickey amendment Congress has plainly “spoken to” this policy issue and that the amendment unambiguously prohibits the funding of all research in which an embryo is destroyed. In his view, had Congress wanted to draw a distinction between research that directly destroys an embryo on the one hand, and research on derived stem cells on the other, it would have done so. He also rejects an argument that research can be divided up into discrete bits like this at all.

What I think the judge doesn’t deal with is the actual issue of statutory interpretation here: whether it’s really clear that all research that depends on the prior destruction of embryos – in other words, that happens after the embryos have been destroyed – is research in which those embryos are destroyed. The legislation seems to me at least unclear on this point (and indeed was badly drafted if the intention really was to outlaw funding of research on the fruits of stem cell derivation in perpetuity), a literal approach tending to favour the government’s view. On the judge’s approach, research on donor organ suitability would be research “in which a person dies”; and even the research President Bush authorised on stem cell lines created in the past could not be funded. The judge has I think rather superficially purported to apply the statute literally without really engaging in close detail with its literal terms; and I doubt it’s sensible for any judge to say Congress has already clearly spoken on nuances of what’s happening here, when science has been developing since 1996.

This is a bad decision. I’m sure Health Secretary Sebelius will appeal, and I hope she succeeds. I also hope Republican pro-lifers can be stopped from making gains from this in the November Congressional elections and from beefing up Dickey-Wicker after that. I suppose President Obama might even veto any such legislation. But even if the worst happens across the pond, at least it’ll be an opportunity for British universities to lead research in this vital area.

2010-08-27T16:07:36+00:00Tags: , , , |

Ray Gosling: prosecution is against the public interest

August 20 2010

The Crown Prosecution Service has issued a press release today saying it has decided that Ray Gosling should be prosecuted for wasting police time under section 5(2) of the Criminal Law Act 1967, following his Inside Out broadcast on 15 February. Obviously I don’t know exactly what Ray Gosling told the police when he was called in for questioning earlier this year. But based on what we do know, I’m troubled by the decision – which I think is against the public interest.

The timing is interesting: Nottinghamshire Police presumably laid the information at Nottingham Magistrates’ Court over a week ago, just in time to prosecute within the time limit imposed by section 127 of the Magistrates Courts Act 1980 (although it’s worth mentioning we can’t be sure that the prosecution is based on the broadcast itself, or on what Gosling said to the police after his arrest on the 17 February).

More important is the substance. Ray Gosling did not go to the police: they came to arrest him, a decision that was questionable in itself. Even if what he did amounted to

knowingly making to any person a false report tending to show that an offence has been committed

in the words of section 5(2), it’s less obvious that he caused wasteful employment of the police. You might argue they caused the waste of their own, and Gosling’s, time. Did anyone call for a murder investigation?

In any event, it’s not clear that any public interest factor here tends to favour prosecution under the CPS’s own guidance, except the amount of time the police spent on their investigation – which is surely not Ray Gosling’s responsibility given that he didn’t seek their involvement in the first place.

Most critically of all, it seems to me this decision fails to give due weight to freedom of expression. Ray Gosling’s Inside Out broadcast was a serious, personal and emotional contribution to a current debate about euthanasia. It was in a wholly different category from a malicious complaint to the police, and deserves much higher protection under the article 10 Convention right. How the CPS, and the DPP himself who had to consent, can have concluded that the balance of public interest favoured prosecution – and the consequent chilling effect that decision has on confessional memoirs in writing and broadcasting – I don’t know. The interference with Gosling’s and the BBC’s free speech can only be justified in the interests of preventing crime, but it is clearly disproportionate to that aim.

Anyone troubled by the less serious limits that privacy law has put on tabloid sexposés should be much more concerned about this real free speech issue.

2010-08-20T13:43:58+00:00Tags: , , , |

Privacy law: there’s no need for “clarification”

August 18 2010

Following on from my post the other day about privacy and the notorious “back door”, I’m surprised Lord McNally has been taken in sufficiently to propose new privacy legislation to “clarify” the law and remove some of its dangerous and onerous aspects, to use his words. He obviously wants privacy protection watered down.

I explained yesterday at the Guardian’s Comment is Free why I think this contradicts his party’s stance on civil liberties and human rights in other fields, and why I’m opposed:

To understand what’s at stake here, we need to notice the types of cases that are actually causing concern in press circles. They aren’t those involving politics, corruption or public money. On the contrary, they more often involve celebrity, sport and sex … If it’s true that privacy law has begun to prevent such exposures then that should be reassuring rather than dangerous. The fact that it didn’t do so in Mosley’s case or John Terry’s ought to make people think before concluding that those stealthy privacy judges have gone too far.

Fans of the Human Rights Act used to berate the previous Labour government for any rhetoric suggesting it might row back on the Act to any extent – but it never actually amended it to weaken any of the rights in the way Lord McNally wants to do with privacy. Strange that a Liberal Democrat, so many of whom normally defend the HRA and judges unconditionally, should be so eager to check them in this instance. Are the tabloids in charge of the government?

2010-08-18T11:05:37+00:00Tags: , , , , |

Smoking bans in Germany: Bavaria quits

August 13 2010

Two years ago now, I wrote that Bavaria’s ban on smoking in public buildings had been upheld by the German Constitutional Court. But it, or a new version of it, has recently been challenged again – and again upheld.

Just before the Court upheld the Bavarian ban the first time round in 2008, it had ruled unconstitutional less strict bans in Berlin and Baden-Württemberg, saying that while a total ban could be justified there was no logic or fairness in the exemptions those two states had granted. The Court gave guidance about what types of exemptions would survive scrutiny when the states adopted new laws. And it’s that guidance that the Conservative-Liberal coalition (yes, that type of coalition) in power in Munich since late 2008 seized upon when it decided to relax the smoking ban as from August 2009. Many thought the conservative Christian Social Union’s backing for a total ban helped lose it votes, and its majority, at the 2008 election.

But in response, a public initiative forced a referendum on the issue last month – and a surprising majority voted to reinstate a total ban (albeit on a low turnout). It’s that new law that was challenged this time.

But the Federal Constitutional Court was having none of it – it ruled the challenge inadmissible (in German only; here’s a Googlish version), partly on the technical basis that it was premature (having been made before the new law was officially promulgated) but also on the basis of its Berlin/Baden-Württemberg ruling. A total ban engages no fundamental rights.

As for Berlin, Der Tagesspiegel reports that its government came back after the 2008 ruling with a new law containing defensible exemptions – and that the law is being variably enforced to say the least, some districts only reacting to complaints and others devoting no staff to the task. In Baden-Württemberg too, the new law contains permitted exemptions. It’ll be interesting to see whether what’s happened in Bavaria spurs calls for a ban at federal level – or more likely, public initiatives in other states. If I lived in Berlin, I’d certainly want something done about its ridiculous unenforced non-ban.

2010-08-13T12:27:55+00:00Tags: , , , |
Copyright 2022 Carl Gardner. Site by Samsara
Go to Top