Times Newspapers v UK: libel on the interweb

March 17 2009

Last week in Strasbourg, the Times lost its claim in the European Court of Human Rights that the way libel law in the UK applies to online newspaper archives breaches the right to freedom of expression under article 10 of the European Convention.

The background to this is a libel case brought against the Times by the Russian businessman Grigori Loutchansky, who complained first about articles published in the newspaper itself, and then, over a year later, about the same articles which had for all that period been available on the Times‘s online archive. Although in principle a libel claim must be brought within a year of publication, a well-established principle in libel law – the “internet publication rule” applied by the Court of Appeal (see paras. 51-76 of the judgment) when the case was before the English courts – means that every time a website is accessed, a separate publication occurs. So the one year limitation period is constantly re-started each time a visitor views the relevant page – and Loutchansky was in time to sue.

The Times objected, arguing that this “internet publication rule” means newspapers with online archives are exposed to potential libel claims for ever in relation to any individual article. They argued that this has a chilling effect on expression: newspapers can never be free of the fear someone will sue them for content placed online perhaps many years ago. The ECtHR, though, felt no need to rule on the principle raised by the Times. On the particular facts of the case, the court in effect suggested the Times could have avoided the second claim had it published earlier a qualifying statement with the archived articles, and that the delay did not prejudice the Times because it was in any case defending the “hard copy” claim; in those circumstances, libel law did not disproportionately interfere with its freedom of expression. Although the court did suggest libel proceedings brought after a long time could give rise to a disproportionate interference with press freedom, there was no such breach here. The internet publication rule survives.

I agree with critics like Matt Wardman that the law in this area needs review: the internet publication rule seems to make a nonsense of section 4A of the Limitation Act 1980, which sets the time-limit for libel actions at a year. But I think the European Court got this judgment right; we should not simply move to a “single publication rule” as in the United States, according to which the limitation period starts when an article is first uploaded onto a website. That wouldn’t work fairly in the context of our current limitation system.

Libel law isn’t popular, and it has often been abused, but it’s worth reminding ourselves why it exists: newspapers shouldn’t be able to publish damaging lies about people with impunity, for instance, false accusations that someone is a Nazi or a rapist. If it’s wrong for a newspaper to distribute such lies on paper, then it must also be wrong for those same lies to be published online; and while, looking at the facts of this case it’s easy to sympathise with the Times, we also need to think about other potential sets of facts, like the blameless teacher who finds out that a post on some obscure blog from years ago accuses them of sexually abusing their pupils. I don’t think it’s obvious that someone who realises that lies like that appear permanently on a website should lose all rights if they happen not to have noticed the site, even for some years. I realise that, according to the Times ‘s argument, section 32A of the Limitation Act would help by permitting action after the one-year time limit has passed, where the courts think that’s equitable. But that would simply turn the one-year time-limit into a six-year one, meaning my imaginary teacher would have no right to complain about a blog post from early 2003, if he or she discovered it now. To turn the Times‘s argument back on itself, the teacher would not just be at risk, but would actually be lied about for ever, with no comeback. This can’t be the answer to the Times‘s problem.

So Strasbourg was right to be wary of going beyond the facts of this case in order to condemn the internet publication rule, which may in other cases be necessary to protect legitimate rights. What we need is not simply a change to the single publication rule but new, flexible limitation rules that recognise some web publications are more obscure than others, and that require action quickly where a claimant is aware of an internet publication while permitting claims, even after a long time-lapse, if an alleged libel has genuinely just come to light. Let’s hope something like that emerges from the review Jack Straw has announced.

This post first appeared at The Wardman Wire.
2009-03-17T14:35:00+00:00Tags: , , , |

A good day for Pakistan

March 16 2009

I’m delighted that, finally, the Pakistani government has given way to pressure from lawyers and Nawaz Sharif’s PML-N party, and decided to reinstate the Chief Justice Iktikhar Chaudhry and the remaining handful of judges deposed by General Musharraf when he suspended the constitution in 2007. The government should have done this long ago: if it feels weakened by its capitulation today, it has only itself to blame. Those lawyers who’ve successfully agitated, first against military rule and more recently for these reinstatements can justifiably celebrate. So can all of Pakistan.

I hope the success of the lawyers’ protest may be a historic turning-point for Pakistan, that Pakistan’s judges and lawyers will continue to insist the highest standards in public life and will protect the constitution as determinedly from now as they did over the last two years. Democracy and the rule of law are far too important to be left to lawyers, of course, but far, far better to have the country’s conscience kept by a legal establishment committed to democracy than by a military establishment which has so often suspended it. At least, now, the professional middle classes must be considered a serious rival to the power of the army and other vested interests.

2009-03-16T14:48:00+00:00Tags: , |

Lord Lester’s Cohabitation Bill

March 13 2009

I’m grateful to John Bolch at Family Lore for pointing out that Lord Lester’s Cohabitation Bill has its second reading in the Lords today. Lord Lester’s proposal, supported by Resolution, is aimed at protecting people who’ve lived together with a partner without getting married, and who are in hardship when they split up. The idea is to enable anyone who’s cohabited for two years or who’s cohabited with the mother or father of their child to apply to a court for a financial settlement order. Motherhood and apple pie? I think not. I’m against it.

I’m sure Resolution is right that there are some people – I guess mainly women – who believe cohabitation gives them common law rights in relation to their partners, and who are unfairly left in hardship following a break-up. Perhaps there’s some solution to that difficult problem that I could agree with. But I think Lord Lester’s Bill is a nannying scheme that, far from reflecting the realities of relationships today, tries to limit the freedom of both men and women to choose not to marry.

The reason people cohabit is precisely because they don’t want to create formal, legal ties between them; this law, imposing obligations on cohabitees, will not encourage committed relationships, but deter them. If it’s right that there are lots of men out there refusing to marry so as to avoid responsibility, then surely they’ll simply avoid cohabitation to avoid responsibility instead, won’t they? Or simply leave after 23 months, perhaps (or 17 months, if they’re clever; see below). This Bill will make the decision to cohabit almost as formal and as heavy as the decision to marry – taking away exactly the liberating difference that’s attractive about cohabitation in the first place. I think burdening cohabitation in that way would make Britain feel more like the 1950s again, not like the 21st century. And it would encourage more single occupancy, as those couples who want to retain their freedom ensure they maintain separate addresses. That’s a very bad idea in terms of housing and social policy.

All right, I’m male: perhaps that explains my view. I’m afraid of commitment and responsibility. Well, perhaps. But to me, the assumption that women are financially dependent evokes the past. Of course some women are dependent on their male cohabitants. But then again, quite a few women are better off than the men who live with them but refuse to marry. Why should a woman like that have to support her ex-boyfriend at all once he’s left? It won’t do. I know the Bill provides for opt-out agreements so that couples can agree not to claim against each other. But it’d force them both to go to solicitors first – an incredibly onerous, expensive formality to impose on couples. Again we have the dead hand of the paternalist here, lawyerising what is, and should be, a choice free of such burdensome and bureaucratic consequence. In any case, in Lord Lester’s scheme, the court can tear up the opt-out if it think it’s unfair, or that things have changed since it was signed. What’s an opt-out worth?

Finally, I doubt that the rules determining when cohabitation triggers these new “rights” are what they seem. Look at clause 2(4)(b), which says that in calculating how long a couple have lived together

any one or more periods (not exceeding six months in all) during which the parties ceased living together as a couple is to be disregarded.

The basic principle is supposed to me that there needs to be continuous cohabitation for two years; but that’s not right, in fact, because clause 2(4)(b) means that a split of up to six months doesn’t count. A couple living together for a year, then six months, with six months in between, would qualify for the “protection”, as would a couple who lived together for three six-month periods, broken by two three-month gaps. So it’s not two years continuously at all. In fact, it could simply be 18 months, either broken up as I’ve described, or perhaps in one go. Judges might I suppose read in a requirement that a couple get back together at the end, if a break is to be disregarded – but I see no such provision in the Bill. The Bill brings far more couples into the net than first appears.

By the way, I think if you have a child together, just one day of living together triggers the rights. I agree it’s a good idea for the parents of a child to live together and share financial responsibility; but I doubt Lord Lester’s rules would encourage that. I suspect it’d further deter some young men from wanting to try living with the mother of their child.

I agree there’s a social problem here; but this paternalistic Bill goes too far in trying to solve it, imposing unnecessary burdens on thousands of couples who well understand the freedom involved in living together, and who choose to do so for that very reason. Lord Lester’s one of the most famous human rights lawyers in the country, and should know better than to put forward legislation that’s plainly disproportionate. But this Bill is a sledgehammer aimed at an (admittedly tough) nut. I oppose it, and hope the Lords vote it down.

2009-03-13T16:19:00+00:00Tags: , , |

Privacy: Max Mosley is right

March 11 2009

Max Mosley appeared before the Culture, Media and Sport Committee yesterday to talk about the exposure of his private life by the News of the World last year, his successful privacy action and the law on privacy generally.

Mosley argued that newspapers should be required, before publishing stories like his, to contact the subject of the planned revelations before publication; he says it’s essential people have a right to challenge disclosure in advance because no post-publication remedy can possibly give sufficient compensation. Once privacy is lost, it’s lost for ever. There’s no putting the egg back together.

I think he’s right. A great deal of rubbish has been talked since the Mosley judgment, a large percentage of it by Paul Dacre. We now have privacy law, yes, not one brought in by the back door, but one openly voted in by Parliament in the Human Rights Act. This privacy law does not constrain investigations into wrongdoing, or into any behaviour that there is a genuine public interest in exposing; what it does constrain is simple intrusion into people’s sex lives for fun and titillation.

My concern from the start has been the way the press can avoid legal constraints, even by leaking a story in advance of publication, and that Eady J’s judgment was if anything too friendly to the press. The level of damages and costs Eady J awarded in the Mosley case is not enough to deter newspapers from exposing people’s sex lives. I agree with Mosley that the law should develop so as to punish newspapers if they fail to give the subjects of their stories a chance to seek legal remedies in advance of a publication interfering with private life. The rules would have to be sensibly drawn, of course, to deal with difficult borderline cases and with those rare cases in which a delay in publication might be against the public interest. But I think Mosley’s basic principle is sound.

Eady J himself showed the way forward in his judgment: we should insist on responsible journalism, but in return, take responsible behaviour into account when weighing what may be published. A future Max Mosley should have to meet a fairly high test in order to succed in prior restraint; but no defence of responsible journalism should be available to those who act irresponsibly by rushing to publication in any attempt to evade human rights, and examplary damages should be available if a future Max Mosley succeeds after publication, having been unjustifiably denied a chance to restrain publication in advance.

I wish Parliament would legislate to achieve this. But I can also imagine this kind of approach could be developed by judges – and I think they’d be right to do so.

2009-03-11T21:49:00+00:00Tags: , , |

Blawg Review #202

March 9 2009

Blawg Review is the weekly blog carnival for law blogs – I’m pleased and honoured to be today’s host.

The big legal news globally last week was the International Criminal Court’s indictment of Sudanese President Omar al-Bashir for war crimes and crimes against humanity in Darfur. CCJHR Blog brought us the news, while at International Law Observer, Jernej Letnar Černič doubted the ICC’s pretrial chamber’s approach to the standard of proof on the potential genocide charge. Kevin Jon Heller at Opinio Juris also criticised its findings on genocide in a series of posts that were analytical, sober and at times scathing.

In the United States, an important hearing took place in the Supreme Court of California about “Proposition 8”, the amendment to the state constitution aimed at outlawing gay marriage, overturning the Court’s decision from last year, and which was approved by voters at the same time as they elected Barack Obama President last year. The American Constitution Society Blog and the WSJ Law Blog recapped the arguments, as did Dick Carpenter at Volokh Conspiracy who thinks the proposition will stand – but so will the gay marriages concluded before the amendment was made. It’s amazing to a non-American that this case involves both the former California Governor Jerry Brown (now Attorney General) and Bill Clinton’s old adversary, Congress’s former independent counsel Ken Starr, both of whom disappeared from the European radar some years ago.

German blawgers were concerned about the fairness of two very different “outings”. Udo Vetter at lawblog.de felt doubly bad about his neighbour being exposed as a Neonazi (German/Googlish) in a flyer put through his door; and told us about the socialist member of the Bundestag Jörg Tauss (German/Googlish), suspected of child porn offences, who claims he was in possession of the stuff in connection with his official duties (German/Googlish). Thomas Stadler at internet-law.de criticised (German/Googlish) the insinuating tone of media reporting mentioning Tauss’s previous opposition to aspects of proposed anti-porn legislation. Meanwhile, the French blawger Jules at Diner’s Room wrote (French/Googlish) about two decisions of the European Court of Human Rights permitting the censoring of photographs to help the fight against smoking. I’m pleased to say he got in a mention of Justice minister Rachida Dati (French/Googlish) and her lovely ring.

Elsewhere in Europe, Eoin O’Dell at cearta.ie wondered about the lawfulness of compulsory judicial retirement and reported on the European Court of Justice’s judgment in the Age Concern case on retirement ages generally. At Diritto 2.0 Ernesto Belisario is doing something about Italian politicians’ ignorance of the web (Italian/Googlish) and the Austrian law blogger Hans Peter Lehofer had a go at the editor of Austria’s official gazette (German/Googlish) and reported (in English this time) on the European Court of Justice’s UTECA ruling on Spanish film finance law at contentandcarrier.

In South Africa, a big story has been the early release on parole of Schabir Shaik, convicted fraudster and crony of the country’s next President Jacob Zuma. The story was pursued last week by Pierre De Vos at Constitutionally Speaking. He wrote on Monday of Zuma’s talk about pardoning Shaik; the next day after Zuma’s pressure had done the trick, he attacked the release using satisfyingly dark irony; and then on Wednesday he had a go at the “correctional services” minister’s confused statement about the medical grounds for the release. It’s good stuff, this, strong writing about real abuse in a country where proper constitutional values clearly still need to be fought for.

Constitutional law is a big thing for me, so it was good to read Danielle Citron at Concurring Opinions on the German Constitutional Court’s ruling against e-voting. Andis Kaulins discussed the case too, at Law Pundit; there seems to be a growing fashion in Europe for old-style pencil and paper elections. John C. Bouck reckoned Canada should put the colonial past behind it and adopt a fresh written constitution, and Thémis told us about proposed constitutional changes in France (French/Googlish). Kathleen A. Bergin at the Faculty Lounge was thinking about the establishment clause of the US Constitution, the importance of time and the Summum case: I agree with her that this emerging theory of “constitutional estoppel” looks a nonsense cooked up to get rid of inconvenient challenges. For the same reasons, I’m doubtful about an American court’s approach to snowmobiles, as reported by Jodie L. Hill at Downtown Lawyer. Mario García at Ultima Instancia weighed the merits of various electoral systems (Spanish/Googlish): he thinks the disproportionate British system has given Gordon Brown too much power. I’ll tell you what, Mario, it’s even more dramatic than you think: he only needs a 51% vote to change our constitution. I reckon that’s a good thing myself, though.

Back in the States, last week’s Blawg Review host, Barry Barnett at Blawgletter, told us about the Wyeth v Levine case in the US Supreme Court, about whether claims for personal injury caused by a medicine are “pre-empted” by the fact that its labelling contains warnings approved by the drug regulator, the FDA. At SCOTUS Blog there was analysis from Lyle Denniston while Eric Turkewitz at the NYPI Law Blog wrote on what the case shows about the power of blogging. Also in the Supreme Court was the Caperton case about elected judges, bias and recusal. Jonathan Adler at Volokh thinks the case is about free speech as much as bias, while over at SCOTUS Blog Lyle Denniston was at it again with analysis of the case, and we saw the transcript of the arguments. Analysis too from Ruthann Robson at the Constitutional Law Prof Blog.

Turning to IP, Lawrence Lessig wrote about the launch of FairShare, which sounds like another great innovation in the way the web deals with intellectual property. Howard Knopf at Excess Copyright discussed negotiations on a Canada-EU trade agreement, and the IP rules that may be insisted on by Europe, but detrimental to Canada. Swaraj Paul Barooah at India’s Spicy IP reckoned Microsoft may be FAT headed in its recent action in the US courts about the use of elements of Linux, while the Brazilian new technology blawg DNT reported on Finland’s new “Nokia” law (Portuguese/Googlish). Finally Sarah Dale-Harris at Davis LLP’s blog wrote about a short delay in implementing the controversial section 92A of New Zealand’s Copyright Amendment Act.

There was a micro-breakthrough last week for British legal blogging: the Solicitor General Vera Baird QC MP commented on a blog. Otherwise the big issue was the really extremely generous pension of Sir Fred Goodwin, the former head of the Royal Bank of Scotland – now 70% owned by Her Majesty’s Government – and whether any of it can be clawed back for the taxpayer. The minister, Labour deputy leader and lawyer Harriet Harman had said he shouldn’t count on getting it. Usefully Employed argued that her words were empty, and Michael Scutt at Jobsworth agreed. Liadnan weighed in heavily against Ms. Harman’s implied threat while Robert Goddard at Corporate Law and Governance joined the chorus of disapproval, also citing human rights and protection of property. Bystander at The Magistrate’s Blog had a dig at the marvellous Harriet. I was on my own.

Now, a sample from the UK blawgosphere last week. Michael at Law Actually told us about his not very legal law space while John Flood at Random Academic Thoughts reviewed the UK TV’s version of Law and Order. Oedipus Lex wrote about the Convention on Modern Liberty and the Employment Tribunal Claims blog gave advice on suing the judge and pronouncing “TUPE”. Two-pea sounds American, I think. Iain Nisbet at Absolvitor reported that charges of racially aggravated harassment are being brought following a pro-Palestinian protest, and Mike Dailly at VoxPopLex had a right go at the new Scottish culture minister. At the excellent housing law blog Nearly Legal, Dave wrote about the House of Lords case of Ahmad; Nick Holmes at Binary Law pondered the future law book; and Pink Tape addressed that rarely-mentioned subject, domestic violence against men. William Flack wanted to know your thoughts on lawyers’ involvement with direct action protests – and about Dave’s eviction. If after all this, you’d like to learn a bit more about the law of England and Wales, look at transblawg where Margaret Marks posted part 5 of her introduction. I’ve covered England, Scotland and Ireland in this Blawg Review, and would like to have shown you something Welsh, but LawMinx was away from her keyboard last week.

I love podcasts, so before I virtually leave Britain I want to mention two good ones produced by blawgers here last week. John Bolch of Family Lore interviewed Natasha Phillips, a lawyer turned activist, campaigner, researcher and writer on the family law system. And, in the week he introduced us to his brother, the centre-left-right Rex Charon MP, Charon QC interviewed Liberty’s Head of Legal, James Welch as part of his series of podcasts on civil liberties at Insite Law Magazine. He challenged James about Liberty’s audible silence about Geert Wilders’s exclusion from the UK – I thought James’s answer astonishing and revealing about Liberty’s approach to freedom of expression.

I must mention two more interesting Asian blogs while I have a chance. In the Philippines, “Sassy Lawyer” Connie Veneracion, a writer who’s obviously great fun on law and other things, couldn’t make up her mind about the Right to Reply Bill. In India, V. Venkatesan at Law and Other Things wrote on Monday about a panel discussion on religion, the media and India’s blasphemy law; B.N. Harish wrote at the same blog about the crushing stats on backlogs in India’s High Courts. Two good Australian Blawgs also deserve a mention. Legal Eagle at SkepticLawyer (she’s the one based in Melbourne) wrote about a couple of American cases including that of “Octomom”, and the right to a child versus the rights of the child. And it was International Women’s Day yesterday of course. While I’m trying to mainstream this Blawg Review (that’s my defence at any rate), Stephen Page wrote at the Australian Divorce Blog about a strengthening of women’s rights in Australia.

Talking of women’s rights, Naomi Norberg at IntLawGrrrls wrote about ending violence against women, and Russian Law reported the amazing news that a woman prevented from becoming an underground train driver has lost her sex discrimination claim in the Russian Supreme Court while the judgment, and the reasons for it, remain secret. Hasn’t the Supreme Court heard of the requirement for public pronouncement of judgment in Article 6 of the European Convention on Human Rights? At Constitutional Law Prof Blog Nereissa L. Smith took apart an often-heard argument about parental rights and abortion; and at Feminist Law Professors Tony Infanti wrote about a constitutional challenge to the federal Defence of Marriage Act and the way it fails to recognise lesbian and gay couples for tax purposes.

I’m against doocing and any form of persecution of bloggers, so I was interested in the tale told by Ben Sheffner at Copyrights and Campaigns about Kathy Kelly’s threats to a lawyer and blogger about supposed professional ethics violations. Here’s the wronged blogger Patrick “Patterico” Frey’s post revealing her complaint. Scott Greenfield at Simple Justice reckons she Streisanded out, but I agree with him that Kelly’s reasonably graceful withdrawal does her credit. I think it entitles her to exit wiser and without looking too silly.

Looking at criminal law, Spanish blawger José Ramón Chaves García at contencioso.es started by wondering whether fines should be reduced during tough economic times (Spanish/Googlish), before considering the psycho-human rights aspects of discounted and aggravated fines, and ending with a fine poetic flourish. Brilliant stuff, José, brilliant! Gideon at A Public Defender expressed opposition to a bill to abolish the death penalty in Connecticut, without opposing abolition. Get it? He’s right, actually: if you’re going to abolish, for heaven’s sake just abolish. If you think the death penalty is wrong, surely you think every currently pending execution should be prevented.

Finally, a handful of interesting posts I can’t leave you unlinked to. If you’re concerned that pollution in China will make your climate change activism a waste of time – don’t worry! Marxism is the answer, as we learn from China Environmental Law Blog. Ralf Grahn in Helsinki gave us an at-a glance guide to those Lisbon treaty ratifications while Jordan Furlong at Law21 looked at a British report but was doubtful about the idea of separate regulation for the biggest firms. Dan Hull at What About Paris? wrote about the London Stone, something I’ve managed to miss somehow in (gosh!) twenty years of living in London; John Bolch (another mention for him) gave an English family lawyer’s thoughts on Rihanna’s injunction against Chris Brown; Tatiana von Tauber at the Legal Satyricon worried about America’s mental beauty; Howard Wasserman at PrawfsBlawg reviewed Sandra Day O’Connor’s turn on The Daily Show; and I have to link again to Scott Greenfield and the sad story of one lawyer and his pens.

My last blawg link is another second one, to Eric Turkewitz at the NYPI Law Blog: I loved his caustic critique of New York’s no-fault law and the undue importance of the way doctors’ reports are written. You really feel his passion and frustration boiling off the page in this urgent call for reform.

Just before I leave: if you’ve enjoyed looking at the global blawgosphere, Charon’s international resources may help you as much as they helped me. He’s produced a Netvibes page covering the main UK blawgs and Pageflakes full of feeds from US blawgs, Canadian blawgs and blawgs from Australia, New Zealand, Scotland and Ireland.

I hope you liked Blawg Review #202; and I think you should expect something quite different next week from the notorious Geeklawyer. He tells me he’s having technical difficulties at the moment – but fear not! All will be well in time for Blawg Review #203.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

2009-03-09T08:00:00+00:00Tags: , |

Solicitor General in blog comment shocker

March 5 2009

Anna Raccoon and Dizzy have both expressed their surprise that the Solicitor General Vera Baird QC appears to have commented on Anna’s blog: she was correcting the fairly common belief that Lord Ahmed was convicted of causing death by dangerous driving. He was in fact convicted of dangerous driving, pure and simple.

Just in case anyone thinks I’m inclined to support or defend Lord Ahmed in any way – let me stress that I’m certainly not. I’m against him. But Vera’s comment is quite true, highly relevant to her responsibilities, which include taking the lead on contesting unduly lenient sentences, and was made after eight o’clock in the evening. So while Anna criticises the Solicitor General for spending time on blogs and “supporting” Lord Ahmed , and Dizzy criticises her for failing sufficiently to mention the death of Martyn Gombar, my reaction is quite different.

I’m pleased the minister reads blogs and takes time to comment on issues she cares about or which relate to her job: one day, all ministers may do so, if they’re encouraged to. I just hope Vera keeps up with the blawgosphere as well as political and media blogs – otherwise I will think she’s falling down on the job.

2009-03-05T11:35:00+00:00Tags: , |

Grabbing Sir Fred Goodwin’s pension

March 3 2009

A lot’s being written and said on the airwaves this week about how lawyers are supposedly crawling over Sir Fred Goodwin’s exceedingly generous pension from RBS. Well, I’ll leave it to the pensions experts to speculate about whether his pension was discretionary and whether any attempt to stop his money under existing law could succeed. What I’m more interested in is whether the government could open its big clunking fist and grab his wad by legislation. The government doesn’t buy my opinion any more, but Harriet Harman would like what I’m going to say: I think legislation could do the trick.

What I’m suggesting is a Bill that gives the government power to reduce pension payments made after it comes into force pursuant to contracts with banks now majority-owned by government. The power would be exercisable in relation to anyone (not just Sir Fred) who a special expert body thought shared management responsibility for the failures that led to the need for government support, and the amount of the reduction would be in accordance with a formula that would reflect the person’s responsibility. The reductions would also however be for the purpose of saving public money, so bigger amounts would come from the biggest pensions – the expert body would not have to respect the proportionate differentials the contracts created in the first place. The formula would be applied by the expert body, a sort of Financial Crisis Management Contribution Commission, who would be tasked with reducing payments straight away, using a very rough yardstick (say, a 90% reduction in the case of very big pensions) on the basis of initial summary findings, with balancing adjustments and repayments to follow later if the person could show their responsibility was less after full consideration. The body would look at the biggest pension payouts first. The amounts saved would be paid as contributions into a special fund to support the banks, relieving the public purse.

It might be objected that this is in effect “retrospective” legislation: Sir Fred has already had his pension, and now you’re changing things after the fact. Well, I’m not sure this proposal is retrospective (I prefer the term retroactive, actually). It does not try to alter the fact that Sir Fred has his pension; nor does it affect his pension in any way before it comes into force, or try to claw back sums already paid to him. I think people are far too ready to see retroactivity in legislation which is not, properly analysed, retroactive at all. Here, my proposal would in no way change the legal position prior to its coming into force: that is the true test of retroactivity. We don’t call tax increases retrospective when they affect income earned under contracts signed years before; I don’t think my proposal is any more retoactive than that.

In any event, there’s no reason why Parliament can’t legislate retroactively. There’s a legal presumption that legislation isn’t retrospective, but that’s simply a rule of statutory interpretation. A clearly worded Act can get round that.

Nor does the Human Rights Act prevent it. Yes, the article 7 Convention right prevents punishment without law:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed

but obviously this only applies to retroactive criminality: it would not get in the way of my proposal.

Both Tom Winsor and Afua Hirsch have mentioned the right to protection of property under article 1 of Protocol 1: I agree this is the most serious legal obstacle to legislation. But I don’t agree with Tom Winsor that it is insurmountable.

Article 1 of Protocol 1 says

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The case law shows that any interference with property – and accrued pension rights certainly are property – is only permitted if it strikes a “fair balance” between the public interest and the private rights of the owner, in this case Sir Fred.

In a case involving an absolute deprivation of property, that normally requires compensation. But even cases of outright deprivation don’t always require compensation: it depends on all the circumstances. Here, monetary compensation for the reduction of pension payments makes no sense. Either full compensation is needed (which means the very act of reduction, even by one penny, would be a breach: that seems to me an extreme and self-defeating analysis, since a 1% reduction could hardly be called an outright deprivation) or else partial compensation is sufficient, which is simply another way of saying a lesser, uncompensated reduction is permitted. It makes no sense in this context to talk about the need for compensation, and I doubt the courts would do so.

In any event, this is not a deprivation case. My proposal would not totally extinguish Sir Fred’s pension: it would divert it to other purposes in line with public policy. It would in other words be a control of his property in the general interest – in a case like that, compensation usually isn’t required. You might even argue that my proposal involves securing the payment of contributions, which the courts take an even more relaxed attitude to.

What matters in article 1 Protocol 1 terms is whether the reductions served a proper policy purpose – I think they would since it is clearly legitimate for the state to stop the money it’s had to put up to rescue banks being siphoned off into payments to those whose failures created the crisis – and whether the amount of reduction is fair. By creating a transparent formula involving expert assessment, and giving Sir Fred the right to argue his case fully, to appeal and so on, a system of reductions could be made fair: I think the courts might well uphold it.

Vince Cable may think my idea is “absolutely potty”, but I think Harriet should introduce a Bill now. I even think she could make a section 19(1)(a) statement of compatibility – but if she feels doubtful about my view she can always use section 19(1)(b) and ask the House to take the legal risk. This pension need not stand.

2009-03-03T19:02:00+00:00Tags: , , , , |

Jack Straw’s veto and the Iraq minutes

February 25 2009

In the end, then, the minutes of Cabinet meetings at which the decision to invade Iraq was taken will not be released; Jack Straw has invoked section 53 of the Freedom of Information Act, thus vetoing disclosure in spite of the ruling of the Information Tribunal by a two to one majority that the Information Commissioner’s decision, that the minutes be released, should stand. Here’s Jack Straw’s statement in the Commons.

Many will be outraged by this decision; I’m not. As I wrote at the time of the Information Commissioner’s original decision a year ago, I think his (and since then, the Tribunal’s) decision in favour of disclosure risks making it open season on Cabinet minutes, in effect destroying the traditional confidentiality of Cabinet discussion and encouraging Prime Ministers to sideline Cabinet and make the real decisions on unminuted, undisclosable sofas instead. I know that the Tribunal, or the majority of it at least, think this would not set a precedent, but I don’t believe that for a moment. Iraq is not the only time this country has gone to war, and going to war is not the only important or controversial decision government takes. A disclosure of these minutes would undoubtedly lead to demands for the disclosure of minutes relating to Heathrow, the Lisbon Treaty, Abu Qatada, national ID card schemes, 42 day detention and so on, so on and so on. To single out the Iraq minutes for disclosure because of the political controversy Iraq still causes is not a principled stance: it is based on political factors, just as much as the government’s decision to keep them secret. Ultimately therefore I agree with Martin Kettle and Steve Richards about this, not with David Hencke or Chris Ames. While Chris Ames is right that the Freedom of Information Act has always envisaged the disclosure of Cabinet minutes in some circumstances, I disagree with him that this means the veto “wrecks” the Act. The Act has always envisaged the possibility of a veto, too.

Beyond the argument about these particular minutes, though, I’m not happy with the way the Freedom of Information Act works. Once you accept that Cabinet minutes should in certain circumstances be disclosable, then it’s wrong in principle that ministers themselves should ultimately be able to block disclosure: even if there is a judicial review of Jack Straw’s decision, the courts will not quash it unless it is unreasonable. The section 53 veto should be done away with.

But I’m not happy with the basic legal structure under which this decision was taken by the Commissioner and the Tribunal, either. The Act does not recognise any “class” exemption in relation to Cabinet minutes, which is itself a major flaw. The government objected to disclosure under section 35(1) since the minutes related to the formluation of government policy, after which the decision whether to disclose simply depends, under section 2(2)(b), on whether the Commissioner or Tribunal thinks

the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

This is far too vague and unstructured a test for anyone to apply it sensibly, or for the Tribunal’s decisions to be based on consistent and coherent principles. On the contrary it is a recipe for subjective, politicised, arbitrary and capricious decision making by the Commissioner, the Tribunal and ministers.

It would be much better if the Act recognised the special status of Cabinet minutes by providing that they are not to be disclosed except in certain defined circumstances. Parliament, instead of lazily passing the buck to officials like the Information Commissioner to make vague judgments should do the work of defining when Cabinet minutes should be released – the fact that it failed to do that, and instead created the “safeguard” of the ministerial veto, is a sure sign of legislation dominated by the executive.

My proposal would be that Cabinet Minutes should only be disclosed if the Commissioner is satisfied, first that the public interest requires him to look at the minutes and consider their disclosure (this would be the case an applicant would have to make); and second, that their contents indicate that Parliament has been misled or cannot properly hold government to account unless the minutes are disclosed. That, or something like that, would in my view cater for a situation in which the minutes showed some wrongdoing or lying by ministers. And I think the person making the final, binding decision on that should be independent of government – a judge, for instance, or the House of Lords or Supreme Court following an appeal.

The absurdity of the current legislation is shown by the fact that the majority of the Tribunal said its decision in favour of disclosure was not based on the contents of the minutes (paragraph 82 of its ruling). But once you decide that Cabinet minutes should not be protected simply on a “class” basis, a decision in favour of or against disclosure can only sensibly be made on the basis of their contents. Everything else is abstract chatter, good intentions and airy-fairy nonsense.

2009-02-25T15:05:00+00:00Tags: , |

Charon QC podcast on Abu Qatada

February 19 2009

Charon spoke to me again this afternoon, this time about Abu Qatada – the Lords ruling on Wednesday and today’s ruling from Strasbourg awarding him compensation. We talk a bit about the man himself and the whole sage of his life in Britain, what evidence the courts have seen of his role in international jihad, and the rights and wrongs of the way each court has dealt with him. Light, I hope, was generated, rather than simply heat; and an interesting conversation, anyway, even if I did go on a bit.

Listen to the podcast here.

2009-02-19T18:03:00+00:00Tags: , , , , , |
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