News International and Tom Watson MP

July 21 2009

The Culture, Media and Sport committee, inquiring into allegations about the News of the World’s hacking into people’s voicemail, is hearing evidence from its editor today; proceedings have been livened up somewhat by News International’s lawyer’s objection to Tom Watson’s participation in the inquiry. The argument is that, since he is currently suing News International, his participation is unfair: it breaches “natural justice”, is ocntrary to the article 6 Convention right, and breaches Parliament’s own rules. News International says it will complain to the Parliamentary Commissioner for Standards about Watson’s taking part. There’s likely to be a fair amount of anger about this in the blogosphere – from Labour -supporting blogs at any rate. But I think News International’s stance is quite reasonable.

I think the natural justice point is a bit of a vague one, and I think it’s well over the top to bring human rights into it – I don’t see how the inquiry will determine News International’s civil rights for article 6 purposes. Making bogus human rights points like that is the kind of thing that brings the Human Rights Act into disrepute.

But it’s quite true that Parliament’s own rules make his participation questionable. MP’s Code of Conduct, paragraph 83, second bullet, says (citing a 1992 report):

…when a member of a Committee, particularly the Chairman, has a financial interest which is directly affected by a particular inquiry or when he or she considers that a personal interest may reflect upon the work of the Committee or its subsequent Report, the Member should stand aside from the Committee proceedings relating to it.

I don’t know the details of his lawsuit, but on what we do know, Watson does indeed seem to me arguably to have a personal interest that may affect the report here. In addition, the sixth principle of public life suggests not only that Watson should declare any private interests relating to his public duties, but also that he should

take steps to resolve any conflicts arising in a way that protects the public interest.

I don’t think it’s good enough for him and the chairman simply to brush this aside, or accuse the witnesses of acting improperly by raising it. They may well have had advice from Speaker’s Counsel that Watson can lawfully carry on if the chairman is content his views would not be affected – that must be right as a matter of strict law – but to stand on that seems to me quite arrogant.

I’m not sympathetic to News International: I’m with Max Mosley on privacy. I don’t have anything against Tom Watson. Not do I want to limit freedom of speech in Parliament: Watson can say what he likes about News International in the House, and be safe from legal action. That’s as it should be. But for him to take part in an inquiry and report which is likely to influence the views of other members, when to an observer there is an appearance of bias, I think is questionable, and News International make a fair point. Note that they are not refusing to answer MPs’ questions (which would I think have been wrong) but will simply complain.

Were this a local authority, a quango or any other kind of public body, it would be widely criticised for this kind of apparent unfairness – if Parliament wants to increase our respect for it, it needs in my view to come into line with general standards of fairness to which voters are held in their own professional lives.

2009-07-21T11:52:00+00:00Tags: , , |

Phone hacking: offences, and other legal issues

July 10 2009

If the Guardian’s right that News Group Newspapers have illegally hacked, or paid investigators to illegally hack, the mobile phone messages of celebrities, then those investigators and journalists may have committed the offence of unlawful interception under section 1 of the Regulation of Investigatory Powers Act 2000. On the face of it the offence seems to cover only the intentional interception without lawful authority of any public telecommunication in the course of its transmission; the intention of section 2(7) seems however to be to include the interception of voicemail, though it looks to me unfortunately and obscurely drafted.

The maximum sentence is two years, or an unlimited fine, under section 1(7); under section 1(8), the DPP would have to give consent for any prosecution.

The journalists may have committed the offence themselves under section 8 of the Accessories and Abettors Act 1861, by having procured illegal hacking by investigators; alternatively they may be guilty of conspiring to unlawfully intercept communications, under section 1(1) of the Criminal Law Act 1977. Any editors who agreed to illegal hacking would also be guilty as conspirators. Under section 3(3) of the 1977 Act, the maximum penalty for such a conspiracy would be the same two years imprisonment; plus the court would also have a power to fine anyone found guilty, under section 127 of the Powers of Criminal Courts (Sentencing) Act 2000.

Another legal aspect of this scandal that’s worth examining is the talk there’s been of News Group’s lawyers having “sealed the court file” after settlement was reached in Gordon Taylor’s claim against them. I can’t claim to be a master of the minutiae of civil procedure, but sealing the court file sounds an American concept to me. What News Group may have done is persuade Master Moncaster on an application under rule 5.4C(4) of the Civil Procedure Rules to restrict non-parties’ access to the claim and defence in the case. Regardless of any such order, non-parties to the case would in any event have had to apply to the court in for permission to see, for instance, lists of the documents each side disclosed; so I don’t think the entire chain of documentary evidence thrown up by the case would be public in the normal way of things. But it’s quite true that that such an order makes it more difficult to find out what was alleged in the case, and what was admitted. We should know on what basis the application was made, and on what basis it was granted.

Finally, Andrew Neil at least is interested in whether News Group might now fear a “class action”, presumably for breach of confidence or invasion of privacy, on behalf of the hundreds of people it’s alleged had their phones hacked. Well, a “class action” in the true American sense – of one person claiming on behalf of an abstract, unidentified class and obtaining a judgment that could potentially apply to anyone in that class – isn’t possible in England and Wales; but there are procedures that enable a group of people to save costs at least to some extent in taking on a powerful defendant like News Group. Representative actions are possible, in which one person takes the lead if a number of identified claimants do actually claim for invasion of privacy; or if there were large numbers of claimants they could apply for a group litigation order as a way of handling the litigation. This 2006 article by the Herbert Smith lawyer Simon Clarke explains a bit more about representative actions and GLOs, and how they differ from American class actions.

2009-07-10T07:07:00+00:00Tags: , , |

Mrinal Patel case dropped

July 3 2009

Harrow Council has abandoned its prosecution of Mrinal Patel today. No surprise there, then. I expressed myself in moderate terms while criminal proceedings were under way, but summonsing her under the Fraud Act 2006 always looked dodgy – it’s difficult to see how you can really call a school place property.

I agree with Harrow Council that some offence needs to be drafted to cover this. As I explained in my last post on this, the sanction of withdrawing a school place a council thinks has been gained by fraud is not enough. In spite of what civil libertarians might say, it’s important to ensure the threat of strong action deters people from anti-social behaviour such as unfairly gaining their children a school place that should by rights go to another child.

But I think questions need to be asked, too, about what Harrow thought it was doing here. Clearly it’s given up now because it thought, presumably on counsel’s advice, that it did not have a reasonable prospect of conviction, or indeed of commital to the Crown Court – in other words, than the courts were unlikely to accept their “school place=property” argument, and interpret the Fraud Act as applying here. But if I was saying that a month ago, Harrow’s lawyers must have been alive to the problem by then. Harrow have been working on the case since at least May. And given that this is such a high-profile case, it’d be strange if they took the decision to prosecute without counsel’s advice. So how did Harrow come to believe, until today, that a prosecution was appropriate?

If its lawyers genuinely advised, until a few days ago, that the prosecution was likely to succeed, and changed their mind this week – I think it’s strange, but fair enough. But it’d be a scandal if Harrow decided to proceed with this in full knowledge of the legal difficulty they’ve now acknowledged, with the purpose of gaining publicity for their campaign to get new legislation. Avoiding that kind of unjustified prosecution is the whole purpose of requiring a lawyer to make the decision to prosecute based on the evidential test laid down in the Code for Crown Prosecutors (which I’ve no doubt local authorities apply).

2009-07-03T12:07:00+00:00Tags: , , , |

Ronald Biggs, and the real ale of English freedom

July 3 2009

It’s been widely reported that Jack Straw has turned down parole for Ronald Biggs.

For the parole board to recommend his release may be humane in the individual case, but it would not be right in the broader public interest to release him: I agree with the decision Jack Straw has taken. As he’s rightly said, Biggs would have been free long ago, and could walk into any pub in Margate or anywhere else, had he not escaped from prison in 1965. The freedom he wants now is the liberty he took between then and 2001 – from Harold Wilson to Tony Blair, from Bobby Moore to David Beckham and from the Beatles to Robbie Williams – when he preferred the cold lager of Brazil. He stole three decades from the public, and he still owes us plenty. He may never pay his debt in full, but the one thing he can do to make up for his crime is to serve every day possible of his outstanding sentence – and I think he should do so. That will seem harsh to some, but today’s armed robbers need to know that justice is remorseless in circumstances like these. That’s why Biggs should not taste the real ale of English freedom.

The ability and indeed duty of elected politicians to make decisions on that broader basis seems to me the best argument for their having the power Jack Straw has exercised; there is a real danger that cutting that power out of the system would result in the public’s interest in the matter being ignored.

2009-07-03T09:15:00+00:00Tags: , , |

German Constitutional Court approves Lisbon – with provisos

July 2 2009

On Tuesday the Federal Constitutional Court ruled that the Lisbon Treaty is fundamentally compatible with the German Constitution – the Grundgesetz or Basic Law. The judgment is vast and verbose (German/English) but here’s a (still quite verbose) summary of it (German/English).

The court sees Lisbon as substantially increasing EU competence, but not to such a point as to extinguish German sovereignty. But because the EU’s structures are not fully democratic – Europe is not a real political society – it’s essential that national democratic institutions play a full part in European decision-making. For that reason, although Lisbon as a whole is okay, some of its provisions – in particular the new simplified procedure for amending the EU Treaties and the “passerelle” clauses by which member states will be able to give up the veto and move to qualified majority voting without specific Treaty amendment – can only be relied on constitutionally if both houses of the German Parliament, Bundestag and Bundesrat, give specific assent to their use.

The judgment is significant in several respects. First, the German Court is making clear that EU law can only be agreed to and operated by Germany to the extent that it is compatible with the Grundgesetz, and that it will be the judge of compatibility. It stresses that in its view this does not conflict with the EU law doctrine of the supremacy of EU law. Second, Lisbon passes that compatibility test – by far the most practically significant aspect of the decision, and something Angela Merkel will be mightily relieved by. Third, it creates a political problem for her and other pro-Lisbon leaders in that German ratification must now be delayed until laws are drafted to guarantee the relevant functions of the Bundestag and Bundesrat; that’s unwelcome, as it eases the pressure on Irish voters and Polish and Czech opponents of Lisbon, but a setback Merkel no doubt gladly accepts as the price for Lisbon’s approval. Here’s a report about political reactions in Germany.

Finally, though, and potentially most significantly, the judgment confirms and further elaborates the legal theory of conditional acceptance of EU law first established by the German Court in its famous Solange I and Solange II judgments, according to which Germany will only accept the supremacy of EU law “so long” as EU law guarantees the fundamental rights laid down in the Grundgesetz; and developed by the Court in its Maastricht judgment, according to which there is a theoretical limit to the EU’s power, defined in terms of its impact on national democratic sovereignty. This 2007 paper by Julio Baquero Cruz gives a good summary of those important earlier judgments: I agree with him that the Maastricht decision established an alternative paradigm of the relationship between the state and the EU which claims higher legitimacy that the EU’s own paradigm of supremacy; this Lisbon decision confirms that paradigm, which could be the foundation of reformist (some would say Eurosceptic) European legal thinking.

The real questions are whether the German Court would ever have the courage actually to rule against EU law on the basis of this theory; and whether EU leaders will believe in its readiness to do, at least sufficiently to be deterred from grabbing too much power. Only time will tell. But the German Constitutional Court is certainly the most powerful institution capable of asserting national power against that of the EU, and I’ve no doubt EU leaders take the risk of its displeasure much more seriously than they do the displeasure of voters in European Parliament elections or indeed in referendums.

2009-07-02T14:00:00+00:00Tags: , , , , |

Baroness Deech and the Cohabitation Bill

July 1 2009

I’m grateful to John Bolch (again) for his reminder last week about what happened to Lord Lester’s Cohabitation Bill: it ran out of time, basically, after committee stage in the Lords on 30 April, and since the government opposes it, it’s not going anywhere.

John and I disagree sharply on this Bill: since I was always against it, I’m delighted it ran into the sand. And perhaps it’s not surprising that we differ, too, in our attitudes to the committee stage debate. John quotes an article in Resolution‘s magazine saying the debate was not reasoned, but wrecking; and he fingers Baroness Deech as wrecker in chief.

Well, obviously I agree with Baroness Deech’s opposition to the Bill, so perhaps I’m biased, but looking at the amendments and the debate, I think her approach was legitimate, and I applaud her. Yes, she wanted to wreck the Bill. The authors of the Resolution article talk as though that’s a bad thing – but then they start from the assumption that the Bill was good. Her amendments and the criticisms she made of the Bill were sensible – I don’t agree with her about the need to protect cohabiting siblings, but it’s not a bonkers point, and her arguments about retrospectivity were important and right, I think, and certainly addressed real issues rather than pettifogging procedures. In any event, Lord Lester himself tabled 32 amendments – twice as many as Baroness Deech, and since in the event their Lordships only debated 3, his list alone was more than enough to have used up all the time. And his agreement to amendment 1 shows he was already on the run and felt he needed to make a serious concession to his opponents. I agree that more time ought to be available to discuss private members’ bills; it’s not good enough that time just ran out like this. But I don’t think the unsatisfactory position as regards time means opponents of a bill like this have a duty not to oppose. That way would lead to less scrutiny, and more bad legislation, than we have already.

Good riddance to a bad proposal.

2009-07-01T08:37:00+00:00Tags: , |

Parliamentary Standards Bill: crying wolf about human rights

June 30 2009

I’m always amused when anyone – often it’s some kind of campaign group – claims that this or that Parliamentary bill “could” breach human rights. As often as not, it’s simply a tactical claim: whoever it is opposes the measure on political grounds (which is entirely fair enough) and tries to use a legal objection to back their opposition. The worst recent example of this was the CEHR’s threats about the Counter-Terrorism Bill.

And now, Parliament’s Joint Committee on Human Rights has said that the Parliamentary Standards Bill – the one that aims at bringing in independent scrutiny of MPs expenses – would breach human rights in that it would deny MPs a fair hearing. Here’s the JCHR report. Note that the JCHR goes further than the usual “could breach human rights!” scare tactics. The Committee says the Bill would breach the article 6 Convention right to a fair hearing and that it would only be a question of time before the European Court made such a finding.

This seems to me a crazy stance to take politically: nothing could be less attractive than MPs trying to use human rights law to cause trouble for the government’s plans to bring in independent scrutiny.

But I’m more interested in the legal merits. So would the Bill breach article 6? I think not. The JCHR has form for crying wolf on human rights. It thought the smoking ban could breach human rights – a very silly view to take indeed, in my view, and one shown to be silly since the ban was brought in. I think this latest view is on much the same level, to be honest.

To raise some questions about the procedures, to argue for stronger safeguards and to recommend changes would have been one thing. But the JCHR’s conclusions are extreme, and in my view untenable. The committee concludes far too readily that article 6 applies at all: I think the government is probably right that, based on cases such as Pierre-Bloch v France, it doesn’t apply to Parliamentary discipline.

And the JCHR says an MP who is investigated must have the benefit of a high standard of proof – beyond reasonable doubt – if the disciplinary charge against him or her amounts to a criminal charge. Well, first, it seems to me quite a jump to assume that, even if an MPs’ behaviour may amount to a fraud, it follows that disciplinary procedures based on that same conduct constitute criminal charges for article 6 purposes. It ain’t necessarily so. But anyway, article 6 does not require our domestic criminal reasonable doubt standard of proof at all. That cannot be necessary for human rights compliance.

The JCHR compounds that by going even further over the top, with the claim that article 6 requires an appeal, which they think should be to the Privy Council. But article 6 does not require a right of appeal. It requires a fair hearing. If the independent regulator’s procedures are fair, article 6 is satisfied – no appeal is necessary. The JCHR’s demand for an appeal is a red herring. By the way, they do not say the appeal should be on a point of law: it seems they think the Privy Council should rehear the case on its merits – so that MPs would have two fair hearings, not just one. But in any event I think MPs may well have a right to challenge decisions of the independent authority in court: I see nothing in the Bill that excludes judicial review. Again, therefore, the JHCR’s recommendations are extreme, and unwarranted.

So how could the JCHR have come to such an extreme view? It has three legal advisers, for heaven’s sake! Well, one reason is just that the JCHR can get things badly wrong, as with smoking.

It might also be worth mentioning, though, that the majority of the members who agreed the report – the chair Andrew Dismore, John Austin, Evan Harris, Virendra Sharma and Richard Shepherd – were all named in the Telegraph recently in connection with their expenses. That may, of course, simply be coincidence.

2009-06-30T20:19:00+00:00Tags: , , |

Lords judgment: AG’s reference no. 3 of 1999 – application by the BBC

June 28 2009

I don’t propose to comment at any length on this Lords judgment from the week before last. It has interesting facts, and signals that the BBC are planning to screen an interesting programme about possible “wrong acquittals”, which in my view are miscarriages of justice just as serious as wrongful convictions. But the human rights principles applied in it are unremarkable.

The case makes me think about DNA databases again, though. I support the national DNA database, and though I wouldn’t go as far as Sedley LJ, I do think a wide database is a good idea and regret the decision of the ECtHR in S and Marper, which I think far too interventionist. Reading this Lords judgment should bring home to critics of the DNA database what the practical consequences of their stance are: a case like “D”‘s will in future lead to no charge for rape.

I must say, I personally find it difficult to see how anyone can square concern about rape conviction figures with opposition to the use of DNA evidence in this type of case. I know most rapes are not committed by strangers, so that identity is in issue in a minority of cases. But that point is a diversion. The important point is that DNA evidence would help obtain reliable convictions for rape in a number of cases – if we allow ourselves to use it. How can we or Strasbourg allow purely theoretical civil liberties worries to rule it out?

Isn’t the rape conviction rate a serious human rights issue?

2009-06-28T14:08:00+00:00Tags: , , , , |

Lords judgment: Gray v Thames Trains

June 18 2009

Yesterday’s judgment in this case is interesting: their Lordships have decided that Kerrie Gray, who was injured in the Ladbroke Grove rail crash of 1999, cannot recover damages in negligence from Thames Trains and Network Rail for the consequences of his own criminal acts. Following the crash he suffered from post-traumatic stress disorder and depression; one night he stabbed a man to death. He was convicted of manslaughter and detained under section 37 of the Mental Health Act 1983.

Mr. Gray wanted damages for his loss of earnings while detained and for his feelings of guilt, and to be indemnified against any damages claim against him by the family of his victim. An outrageous, loonily litigious claim of the kind taxi-drivers often associate with the Human Rights Act. Note that that legislation plays no part in the case. But the Lords have dished him, led by Lord Hoffmann who makes it clear that the law is against him since there is a principle based on public policy that you can’t recover damages which flow from a sentence lawfully imposed on you for your own unlawful act. This is Lord Hoffmann’s “narrow rule”, and deals with the loss of earnings claim. Lord Hoffmann also says there is a wider rule of public policy that you cannot recover for damage which is the consequence of your own criminal act. He explains at paragraph 32 why he distinguishes between the wide and the narrow rules; the wider rule comes into play, since it precludes damages for guilty feelings, and the indemnity.

This is an obviously sound, common sense judgment, and many members of the public will be astonished, I think, that these points needed to be decided in our highest court rather than being the sort of elementary point dealt with at a lower level. I’m glad human rights points were not argued in favour of the claims (there might conceivably have been an uphill argument based on Z v UK (see paras. 91-104) that Lord Hoffmann’s rules are “exlusionary” and in breach of article 6) and dread to think what Lord Hoffmann would have said if they had been.

2009-06-18T17:29:00+00:00Tags: , , , , |

NightJack: the Times should be ashamed

June 17 2009

I admire and respect the professional mainstream press; but the behaviour of the Times in “outing” the Orwell Prize winning blogger NightJack has dented that respect considerably. Here’s Eady J’s judgment, refusing the injunction the blogger sought.

I don’t blame Eady J; I think his ruling may well be sound in law, although if he is right that the identity of an anonymous “whistle-blowing” blog is not by its nature confidential, then I think the law of confidence should be changed. Those who want to expose anonymous bloggers who arguably inform the public of important matters and the grass roots views of public servants should at least need to establish a public interest justification for doing so. On the precedent of this case, no such public interest is necessary. It’s difficult to see, for instance, that the law would prevent the Times from exposing Iranian opposition bloggers. I think they can proudly boast they have established a legal precedent that permits them to do so.

I blame the Times: specifically its reporter Patrick Foster, and its editor James Harding. They have closed down an important, award-winning blog, and caused a much more chilling effect on free expression in this country than any judge, lawyer or privacy law can do. They are a disgrace to their profession.

Surely journalists are supposed to protect the anonymity of sources, not expose them. If the Times can do this, then can it not, equally, expose the identity of any source who, in the Times‘s view, is defying the rules of a public sector employer? That would include, for instance, a civil servant who leaks, such as Chris Galley. Anyone thinking of giving information to the Times must now assume it could appear on the front page. What, after all, is to stop this?

Which brings me to the Times‘s hypocrisy. If it’s in the public interest for NightJack to be exposed – as the Times argued in court (see para. 19 of the judgment) – then it must be in the public interest to expose, rather than keep concealed, the identity of any public servant giving unauthorised information, say to a journalist. That would include not only police officers here in the UK but intelligence officials, judges and police officers in other countries such as Italy and France, and even civil servants in Iran who express political views to the press. Just to be clear, my previous sentence links to no less than ten stories in the Times and Sunday Times this year quoting anonymous police sources – I could have linked to more similar articles – plus four other stories which raise analogous issues involving other public sector sources here or abroad. According to the Times‘s argument in the NightJack case, it believes the public interest requires these sources to be named; yet it is clearly content to use such sources and protect them.

I don’t doubt for a moment that the Times protects these sources because it thinks to do so is both ethical and in the public interest. But the NightJack case shows it is prepared to cast ethics and the public interest aside where they conflict with its own narrow commercial interest.

Professional journalists who work to these double standards don’t deserve bloggers’ respect.

2009-06-17T19:27:00+00:00Tags: , , , , |
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