Law Review: Conduct unbecoming of the legal profession? – The Party’s Over?

ACS:Law is a United Kingdom law firm specialising in intellectual property law.  ISP Review notes: “Controversial solicitors firm ACS:Law UK (Andrew Crossley), which last week had all of its dirty email communication laundry leaked across the internet (here), is now facing more problems after Privacy International (PI) announced that it would take legal action against the firms breach of sensitive personal details.”

The modus operandi of ACS law against file sharers appears to have been to write to them offering the opportunity to settle matters on payment of £500.  It is interesting to note that ACS Law, according to Wikipedia, have not been successful in obtaining any court judgments – save for default judgments.

While I understand the convenience of a fixed ‘penalty’ to solicitors and client,  this course (rather than cause) of action smacks a bit of blackmail and is not linked to principles of justice in terms of damages for damage suffered by the client whose copyright has been infringed.  It leaves an unpleasant taste in the mouth – a personal opinion which others may not agree with.

Those who live by the sword die by the sword is an oft quoted maxim…

ACS:Law could face £500,000 fine for porn list leak

The BBC reports: The UK’s Information Commissioner (ICO) has told the BBC that the firm behind a leak of thousands of Sky broadband customers’ personal data could face a fine of half a million pounds. The list, produced by ACS:Law, contained the names and addresses of more than 5,300 people alleged to be illegally sharing adult films online.

A most helpful Wikipedia entry provides some interesting commentary on this law firm and Mr Crossley. I have followed up many of the links, notably those involving the Solicitors Regulatory Authority.   The last time I tried, a few moments ago, the ACS Law website was down – hacked or pulled?

And…an interesting article on….

The “legal blackmail” business: inside a P2P settlement factory

Ars Technica:

UK pornographer Jasper Feversham was fed up. The Internets were sharing his films, quality work like Catch Her in the Eye, Skin City, and MILF Magic 3. He wanted revenge—or at least a cut. So Feversham signed on to a relatively new scheme: track down BitTorrent infringers, convert their IP addresses into real names, and blast out warning letters threatening litigation if they didn’t cough up a few hundred quid.

“Much looking forward to sending letters to these f—ers,” he wrote in an email earlier this year.

IPrivacy4IT – Clarinette’s blog

An excellent and comprehensive review….. of this issue on Clarinette’s blog

“Party is over” law firms warned at forum hosted by College of Law

General counsel from some of Europe’s leading corporations have warned law firms that “the party is over” and they must share the pain caused by the financial crisis with their clients.

Legal heads from top companies including Royal Dutch Shell, British Airways and Nokia Corporation outlined their measures to drive down expenditure on law firms in a bid to ease financial pressures at a breakfast forum hosted by The College of Law in London last week.

These included changes to billing methods, the move towards fixed fee arrangements rather than hourly billing and reductions in the number of law firms on their books.

Also taking part in the discussion on how the relationship between general counsel and law firms had shifted as a result of the global economic downturn were senior members of major law firms, including Allen & Overy, Clifford Chance, Denton Wilde Sapte, Linklaters, Norton Rose and Schillings.

The forum was organised by the Madrid-based IE Law School, one of the world’s leading law schools, as a launch event for its new Lawyers’ Management Program, the first global leadership programme for senior lawyers. The College of Law has recently formed a strategic partnership with IE and will host part of the programme at its London Moorgate centre.

I’ve watched the film – it is excellent and reveals the growing power of general; counsel – something which I looked at in a podcast I did for The College of Law with Tom Kilroy GC for Misys PLC some time back.

Get To Grips With Law Reports

This excellent presentation from Emily Albion , law Librarian at City Law School,  is excellent…… nuff said.

Have a look?

Guest Post: The Case of the Pope: Vatican Accountability for Human Rights Abuse

The Case of the Pope: Vatican Accountability for Human Rights Abuse

Geoffrey Robertson QC

Penguin, 2010, £6.99

Cries to arrest high-profile figures, such as Henry Kissinger or Tony Blair, for ‘crimes against humanity’ are relatively commonplace among the placards of street protesters. But it is much rarer to find a sustained legal examination of the validity of such a course of action.

In his latest book, The Case of the Pope: Vatican Accountability for Human Rights Abuse, Geoffrey Robertson QC delivers a robust polemic aimed at just such an examination. The book is timed neatly to coincide with the first ever state visit by the Pope to the UK. It was initially born out of a column Robertson wrote last April, in which he set out to deconstruct the argument that the Vatican’s claim to statehood, and its corollary that the Pope, as its head of state, can claim immunity from legal action.

Robertson is certainly well placed to make the argument. Head of Doughty Street Chambers, he has appeared in an impressive number of leading cases concerning criminal, constitutional, and international law issues. He defended the last two cases brought for blasphemy in the UK against Salman Rushdie (R (ex parte Choudhury) v Bow Street Magistrates Court [1991] 1 QB 429) and Gay News (R v Gay News Ltd [1979] AC 617). More recently he appeared in Bowman v United Kingdom [1998] 26 EHRR 1, in which the European Court of Human Rights declared an electoral law inhibiting campaigns by Catholic pressure groups to be incompatible with the article 10 right to freedom of expression.

The central thesis which Robertson elucidates in The Case of the Pope is that the Catholic Church has been able to construct for itself the edifice of both statehood and a parallel jurisdiction within states under the guise of Canon law. The former has the effect of conferring immunity from liability for civil prosecution under the principle of state immunity. The latter has been used by the Catholic Church as a mechanism to bypass either civil or criminal prosecution and ensure the ‘pontifical secrecy’ of the victim.

Litigants who have suffered from abuse at the hands of Catholic clergy are thereby frustrated from bringing a claim of vicarious liability against the Vatican itself. This is problematic for two reasons; financial and psychological. First, the diocese in which the abuse was committed simply may not have enough money to make bringing such a claim worthwhile. Robertson points out dioceses which have declared bankruptcy in the US to avoid an otherwise potentially crippling liability. Second, many victims of abuse want the vindication that bringing a claim directly against the Pope would bring. This is especially as the current Benedict XVI, as Cardinal Ratzinger, was the Prefect of the Congregation for the Defence of the Faith (CDF) between 1981 and 2005, and had responsibility for dealing with issues concerning alleged abusers.

The charge is therefore levelled against Benedict that, during his prefecture of the CDF, and under his direct authority, a policy was pursued whereby abuse complaints which were brought against priests were hushed up, with a combination of sending priests to far-flung parishes and refusing to submit complaints to the proper secular authorities for investigation. Robertson goes to some length in setting out the material condemning Benedict, and the infamous 2001 ‘Ratzinger letter’ and the so-called ‘New Norms’ laid down in 2010 are both set out in appendices. Indeed, Robertson goes so far to say that, even if one does accept the argument for Vatican statehood, then there is still a prima facie case that the Pope may be guilty of crimes against humanity, and subject to jurisdiction under international law.

While the book is astute at answering the technical legal issues which arise, the reader is left pondering a wider question posed in the opening pages, namely: “What moral blindness has made a church renowned for its benevolence so reluctant to root out and punish all the child abusers in its midst?” Robertson’s book provides a welcome dose of logic and rationality amidst the shrill voices of both sides of the debate. Ultimately, whether or not you agree with Robertson’s final conclusion, a contribution to the debate from such a distinguished international lawyer is to be welcomed.

Thom Dyke is a barrister

First published in Solicitors Journal

Ed Miliband *speech* – Over 40? Sorry…. you are not one of *Us*

I listened to the entire speech given by the newly minted NewEd – a man who appeared to have forgotten that he wrote the last Labour manifesto and was part of a government that brought in fairly repressive anticivlib laws.  Guardian summary

Be that as it may – I am a pragmatist. I understand the phenomenon where politicians develop a form of politico-amnesia and forget the past, using a fantastic loss at an election as some form of *absolution*

To my ear, the speech was remarkable – I sat marvelling at my desk, counting cliches and realised, as I am in my fifties, that *we* are not part of The Ambassador from The Planet F**k’s constituency. That is just fine by me.

Sorry… it doesn’t make me a bad person – but I do believe that David Miliband would have made a better leader – and he certainly wouldn’t have made a crass speech like that. Hey ho…. who cares what I think? I don’t even care what I think on this issue –  the next election of government isn’t until 2015.  The next election of a Labour leader may be before that?  We shall see.

Always a pleasure to tweet with polbloggers – even if they are tribal!

David Miliband was right to ask Harriet Harman QC … why is she clapping….

The link to the story is here

Apologise for it…? No problem…. Acknowledge illegality…?  – which Ed did not… he just said it was *wrong* with the percipience of a politician on the make….. shocking, really….. but Ed did not vote for for the Iraq war (he wasn’t an MP then) – although he was quite happy to serve in a Government later…and may well have been on the barricades, prominently,  expressing the view, while a Cabinet Minister, that he thought the Iraq war was wrong and illegal? I  accept that the definition of *wrong* and *illegal* are quite different.  I shall have a Google later……

Law Review: Quick links to current stories

A quick look at key stories – without comment.  I shall be doing some commentary on current issues later in the day.

CoL slammed for refusal to repay non-starter fees

The Lawyer: The College of Law (CoL) has entered into a major spat with several of Kaplan Law School’s LPC clients after refusing to refund thousands of pounds of course fees to the firms’ future trainees.

The dispute with Bird & Bird, Field Fisher Waterhouse (FFW), Nabarro and Trowers & Hamlins arose after the firms, all of which send their future trainees to Kaplan, offered training contracts to students who had already paid their first instalments to CoL, which in many cases amounted to £5,890.

Law firms – got yourselves covered for PI insurance? – if not then you may well want to have a look at this….

I did a podcast with Oliver Wharmby of specialists Priest & Co recently – a useful source of information and advice.  They are PI specialists and able to accommodate risks that have still yet to secure a deal with any qualifying insurer.

Lawcast 167: Oliver Wharmby, Priest & Co, on Professional Indemnity Insurance for Solicitors

Coulson may be perjury trial witness

The Guardian:

The prime minister’s communications chief, Andy Coulson, could be called as a witness in the trial of Scottish politician Tommy Sheridan for perjury.

According to the Sunday Herald, Coulson gave a statement to Sheridan’s legal team earlier this month.

The case dates back to 2004 when Coulson was editor of the News of the World. The paper ran a story claiming that Sheridan had cheated on his wife with a former prostitute.

Government policy on torture could break law

Guardian: Equality and Human Rights Commission writes to Cameron expressing concerns about newly published guidance

The Bundle: litigious students and lawyers on Twitter

Guardian: This week’s best news, comment, analysis, blogs and readers’ views from guardian.co.uk/law and around the web

Law Review: #Twitterjoketrial – Shooting the Rule of Law in the foot?

David Allen Green will do the serious comment on the continuing saga of the #Twitterjoketrial – as he has done since the beginning.  [His blog is here ]

My only observation, having read the Guardian piece early this morning,  is… that the Rule of Law is actually important in our country – and it really does not help public confidence in  our legal system when we have prosecutions based on what was clearly a joke. It is becoming more clear that even the Police and the airport authorities at Robin Hood airport were of that view – not good that some evidence was, apparently, not disclosed at the original trial according to the Guardian report.

Fresh evidence emerged which was not heard at the previous trial that the police noted after Chambers was bailed “there is no evidence at this stage this is anything other than a foolish comment posted on Twitter for only his close friends to see”. But the crown said the conviction should stand and presented evidence that Chambers had sent direct messages to Crazycolours apparently on the terrorist theme.

Please read the Guardian coverage (and David Allen Green will almost certainly comment at some point this weekend on his blog)

This is a mess and apart from causing stress to Paul Chambers it is making our legal system look ridiculous. I can only go on what I see reported in the press, in blogs, and on twitter.  Unfortunately, so can everyone else…and they will marvel, wonder, mock and ridicule.  I suspect there may even be a few *The Law is an Ass*  comments – deservedly.

Why don’t we just go back to throwing defendants into the river to see if they float? – it would be cheaper and just as effective if the conduct of this case is anything to go by. I do hope that I don’t give our cost cutting Ministry of Justice any ideas with my last observation.

The tragedy is that there is so much good in our system… but it is cases like this which are remembered by the public – who are not that well disposed to lawyers or, possibly, our system of justice and law.  I can’t remember who told me that law only works if people want it to work and respect it….. wasn’t a Russian jurist… they used to think law would wither away under the Marxist system…. and as for those Scandinavian realists and positivism…. way ahead of their (and our/) time!

HLA Hart will be spinning in his grave. And… for non lawyers…HLA Hart was not that guy in the TV ad who kept on popping into a bookshop to see if they had his book on fly fishing.

I assume I am allowed to comment on this matter…. given that it is a matter of public record?

Law Review: Shared values ? Iran and the USA? Surely not!

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I’m very sorry: the final words of Teresa Lewis

The Independent: Her last meal was fried chicken and green peas, washed down with a can of Dr Pepper.

Her last outfit was a blue prison uniform and a pair of flip-flops. And her final words, uttered in the moments before they strapped her down to administer the lethal injection, were: “I’m very sorry.”

Teresa Lewis, a 41 year-old former drug addict with an IQ that puts her on the verge of being mentally disabled, became the first woman to be executed in the United States for five years when she was put to death at Greensville Correctional Center in Jarratt, Virginia.

I’m not a fan of the death penalty… obviously.

It is ironic, as the Indie reported…. that President of Iran, Mahmoud Ahmadinejad, got in on the act. “He used a speech in New York this week to argue that the case typified Western double standards: Americans expressed outrage at the stoning of woman in Islamic countries, he argued, yet sanctioned the lethal injection of a mentally challenged woman in their own backyard.”

Breaking News: Puff of White Smoke – Habemus Labourleaderem

The smart money…rumour is that Ed Milisiah has won… this is fine by me… as I now have the perfect excuse to go completely non-aligned politically… been rather disappointed with Labour civlib position in recent years …and think it is time to wait and see what our MPs actually do rather than say they will do… plenty of time.. next election will probably be in 2015!

And… I am more than happy to vote Boris…as I did last time…. I’d rather have an amusing Mayor in a City I have lived in for 31 years….

I find tribal politics rather dull now…. which is probably a good thing!

So… this blog is non aligned… not that I have ever been that bothered about political affiliation when it comes to blogging… this is why I am not and never will be a polblogger!

Law Review: Supreme Court to go on ‘Bonfire of The Quangos”? and other law

Supreme court status should not be at risk in ‘bonfire of the quangos’

Guardian: Coalition must safeguard separation of powers and the rule of law when considering status of UK supreme court

The UK Supreme Court blog has pointed out that the UK supreme court is listed as “still to be decided – options being considered” in the quango reform document which was leaked this morning.

But what does this mean? Surely not that the new UK supreme court, after £56m of investment and a successful first year in operation, is for the chop?

Not a chance. The supreme court is the highest appeal court in the land and an integral part of the UK justice system. While the name and venue are new, the court itself is almost identical to the House of Lords committee which it replaced, and most (although not all) consider its new independence from government to be a positive step for the rule of law.

What may be under consideration is the team which runs the court. The 2005 Act of Parliament which created the court states that the Lord Chancellor “must” appoint a chief executive, and “may” appoint officers and staff of the court. At present, the court has 10 executive staff, in addition to around 30 other staff.

It is, surely, inconceivable that any government would do away with the United Kingdom’s most important protector of the Rule  of Law and bulwark against the excesses of government.  I am more than happy to parody politicians from time to time – but any attempt to reduce the authority and power of the UKSC would lead us down a very dark path.  Perhaps savings could be made on the trinkets and Supreme Court teddy bears being sold?

Law firms – got yourselves covered for PI insurance? – if not then you may well want to have a look at this….

I did a podcast with Oliver Wharmby of specialists Priest & Co recently – a useful source of information and advice.  They are PI specialists and able to accommodate risks that have still yet to secure a deal with any qualifying insurer.

Lawcast 167: Oliver Wharmby, Priest & Co, on Professional Indemnity Insurance for Solicitors

A selection  of useful articles in Guardian law….

CPS to prosecute online stalkers

Control orders are dehumanising, abusive and should be scrapped

Tweet success awaits the savvy lawyer

Quality of legal aid is as important as access to a lawyer

And from John Bolch at Family Lore…

Family LoreCast #19

This week Natasha and I discuss the speech Is the Family Justice System in need of review?, given by the President of the Family Division Sir Nicholas Wall to the shared parenting charity Families Need Fathers on the 19th September. Topics covered include shared residence, compulsory assessment for mediation in private law children matters, the future of legal aid and McKenzie friends.

You can listen to the LoreCast here.

STARWARS CHAMBER: Will Vince Vader join the *Star Chamber*?

Five departments reach agreement on spending cuts

BBC: Five Whitehall departments have reached spending agreements with the Treasury, ahead of next month’s spending review.

The Treasury, Cabinet Office, Foreign Office plus the environment and communities departments have reached agreement on cutting their spending. As a result ministers Eric Pickles and Caroline Spelman have joined the “star chamber”, which rules on departments which cannot agree cuts.

I have to say… I am astonished by many things these days.. but calling a government committee the *Star Chamber* – is quite extraordinary….

I can’t be arsed to write a polemic about the original Star Chamber – here is the Wikipedia entry

This extract may give you an idea of where my mind is heading on this…..

Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses. Evidence was presented in writing. Over time it evolved into a political weapon and became a symbol of the misuse and abuse of power by the English monarchy and courts.

Oh… and PLEASE read @Konnolsky on Cable…. a parodist with style – on Page 2 of the comments – Wonderful!

Follow @Konnolsky on twitter? Mad! – in a very good way

Law Review: College of Law takes £450,000 hit in Halliwells collapse

CoL left with £450,000 Halliwells bad debt

The Lawyer reports: “The College of Law (CoL) is owed almost half a million pounds by Halliwells relating to unpaid LPC fees for the 2009-10 financial year.

The institution, which ran the LPC for Halliwells’ trainees on an exclusive basis, is one of dozens of creditors owed a total of £14.1m by the law firm, which went into administration in July this year.

CoL chief executive Nigel Savage said that the organisation might be left with no choice but to write off the bad debt, which amounts to £448,293.30.”

Nigel Savage –  The primary thing was to make sure that the students could take the exams and make sure they were placed with firms.”

I’d like to  make a number of observations on the story and on the extraordinary comments to the story in The Lawyer.

Halliwells was a leading firm.  It is hardly surprising that The College of Law extended them a facility of extra time to pay.  I am not sure if The College, or any other creditors, save HMRC and the Halliwells bankers were, or could have been,  aware of problems on the horizon before being advised by Halliwells that extra time to pay was needed.  I assume that credit checks were done and came back as satisfactory.  Hindsight, of course, is a wonderful power possessed by so many.

The College of Law, in my view, behaved honourably by allowing students to complete the course and in trying to place the students with other firms.  Many universities and colleges will not allow a student to graduate where the individual does not pay their fees, unless there are good reasons.  The Halliwells students were not at fault.

The comments to The Lawyer story – some sensible – were quite extraordinary; resembling the type of commentary from the knuckledraggerariat seen in the Daily Mail and The Sun.  I suspect that some comments were written by bored lawyers and other  Messrs Anonymice – having a larf – their parodic value is evident.

Inevitably, comments came in to the effect that if The College can write off £450,000 it is making too much money, the fees are too high etc etc etc.  The College of Law is a charity. Profits are ploughed back into the business.  I have no idea what impact this £450,000 hit will have on the College finances current and going forward.  It is a great deal of money.

Ah… but some of the commenters say that Nigel Savage and his board directors are too highly paid. They are highly paid.  I know Nigel Savage well – so I will interject here with a personal observation and a bit of history which may not be known to some of commenters who are quick to criticise..

I worked with Nigel Savage when he was Dean at Nottingham Law School.  I was CEO of BPP Law School then. We did a three year collaborative deal.  At the end of this, BPP Law School sought and obtained LPC accreditation solo and then went on to get validation to do the BVC.  My work was done – I am not interested in administration or running things. I prefer setting them up.  It is not my ‘thing’ or, indeed, my forte.  I resigned from BPP soon after validation for the BVC.  Peter Crisp and Carl Lygo were very much the right people to take BPP on to where they are today.

Nigel Savage moved from Nottingham Law School  to take over as Chief Executive of The College of Law.  I remember saying to him that this was a massive undertaking and I recall using the words – ‘poison chalice’. .  I thought The College of Law was a basket case then.  Soon after resigning as CEO of BPP Law School, I was then asked by the  leading seven Magic Circle and City firms to do a report on the viability of a City LPC.  My report on the College of Law was deservedly negative.  Nigel Savage had only been in post a year.  The College of Law were not invited, then, to be a provider by the consortium of magic circle firms for the provision of the LPC. It did not, however,  take Nigel Savage and his close colleagues and the teaching staff to drive change through and become favoured providers by leading law firms.  That didn’t happen by chance or by accident.  It happened through skill. City and big commercial law firms demand the best – and there are many very good LPC providers in the market.

The College of Law, like most law schools, will have faults and errors will be made – but I have seen the astonishing changes over twelve years.  The quality of staff, the quality of materials, the quality of teaching is now very good – certified to be so by experienced inspectors from the profession.  Nigel Savage brought about and inspired many of these changes by bringing good people in – and with that team, The College of Law is now a leading provider of education across degree and professional levels.  Worth £440k a year?  I would think so.  He could have gone elsewhere.  I happen to know – because I was there and party to discussion with the then Chief Executive of BPP Holdings plc, Charles Prior, on that very issue – he could have come to BPP and he would have been paid extremely well. We certainly wanted him to.  (It is so long ago, that I am not revealing ‘confidential information’ of any commercial value and I justify stating it on grounds of fair comment on this story.)

Cynicism is always healthy. Criticism is a good thing – provided it is fair and constructive.  I have no doubt that there  are administrative cocks ups from time to time – exam papers going missing etc etc – reported gleefully by RollonFriday for comedy value.  I have no doubt that some of the teachers aren’t as good as others etc etc etc.   I doubt whether even the top magic circle firms deliver perfection 24/7/365 – I am sure they strive to, and I am equally sure that if anything goes wrong – they put it right.

I’ll end with  an observation – Professor Avrom Sherr (Director of The Institute of Advanced Legal Studies), another friend from the old days, told me once –  “Making mistakes gives you an opportunity to show how good you are by putting it right”.  He’s right.

Vince Cable: Putting a bit of SPIV on Coalition government

Cable attacks City ‘spivs and gamblers’

Independent: Business Secretary Vince Cable launched a searing attack today on the City “spivs and gamblers” who crippled the British economy.

In a rousing speech to round off the first Liberal Democrat conference since they entered coalition, Mr Cable condemned the “outrageous” scale of bank bonuses after the credit crunch.

But he also attempted to calm business concerns over his damning critique of capitalist excess and threats to legislate against big payouts, insisting he was not seeking “retribution”.

Looks like things going quite well for the Coalition…


But… DON’T PANIC…. Beaker has everything under control….

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Danny Alexander: ‘We take impact of cuts seriously’

The Indie reports…. “Treasury Chief Secretary Danny Alexander insisted today that proper assessments would be made of the impact of “painful” spending cuts due to be announced next month.”

Reading the Indie article… it would seem that Beaker is well into using the word *IMPACT* –  not in the sense of a crash, one hopes?

I got a job as a sandwich board man! The end of the Labour leadership election is nigh!

Meanwhile… over to Vince Cable for an update on SPIVS!…..

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Cable attacks City ‘spivs and gamblers’

Independent: Business Secretary Vince Cable launched a searing attack today on the City “spivs and gamblers” who crippled the British economy.

In a rousing speech to round off the first Liberal Democrat conference since they entered coalition, Mr Cable condemned the “outrageous” scale of bank bonuses after the credit crunch.

But he also attempted to calm business concerns over his damning critique of capitalist excess and threats to legislate against big payouts, insisting he was not seeking “retribution”.

Nice to see a bit of completely meaningless bollocks at the Lib-Dem conference… just like old times.

With regret… I have had to pull out of The Commonwealth Games in India – a bar I was going to spend my time at for the duration of the games has just collapsed…..

Law Review: ukhumanrightsblog.com – Definitive Human Rights blog from 1 Crown Office Row

The UK Human Rights Blog was launched on 31 March 2010 and is written by members of 1 Crown Office Row barristers’ Chambers.

For 10 years, 1 Crown Office Row, the Chambers of Philip Havers QC, have run the widely acclaimed free Human Rights Update service. The new UK Human Rights Blog aims to provide a free, comprehensive and balanced legal update service.

Our intention is not to campaign on any particular issue, but rather to present both sides of the argument on issues which are often highly controversial.

This excellent blog and resource on human rights law is edited by a team from 1 Crown Office Row – Angus McCullough QC, Rosalind English and Adam Wagner.  The blog supplements the definitive FREE resource (You do have to register to receive it)

There aren’t that many detailed law blogs in the UK – although the list is growing, pleasingly.  Whether you are a practitioner, academic, student or just have an interest in this field –  this must be the first port of call for exposition, explanation and access to UK Human Rights law – and, best of all, it is FREE!

Please have a look at the blog

Guest Post: THE LAW DELUSION – by Cardinal Charoni di Tempranillo

Buongiorno … Io sono un cardinale….  I am in a state of retirement I think you say here… but I keep my hand in with the money laundering and the odd exorcism.  I am pleased to be invited by my cousin Charon QC to do guest post…. or Papal Bull as he call it….

I take as my theme the Ten Commandments and try to make it of interest to your profession of law…  I call my sermon… THE LAW DELUSION as homage to the heretic Dawkins.

Urbi et orbi……

Imagine a field full of valuable diamonds or gold owned by the people… let us call it call it common land…. imagine then… if a very small section of the people, with expertise in that gold or diamonds, helped themselves and built great structures and wealth from those resources – but did not pay a penny to the people to use them…we would call them  carpetbaggers or,  at worst, thieves….or if we want an even more topical insult we would call them them  bankers.

You don’t need to imagine this field because there is such a field. it is not filled with gold or diamonds.  it is filled with laws – statutes and caselaw handed down by the judges.  The law is your law.  You have paid for it with your taxes. It belongs to the country, not to individuals.  Yet we have a group of people,   they are called lawyers – who have built their entire wealth, their worldly structures, their regulators on  your laws and they don’t pay a penny in royalties or fees to do so. As an aside – using something you haven’t paid for in criminal law is theft, but there is no theft here – bankers would call it short selling.

I digress for a moment… as I cast about for the loaves and fishes of intellectual sustenance….

In the beginning God created the heaven and the earth.

And the earth was without form, and void; and darkness was upon the face of the deep. And the Spirit of God moved upon the face of the waters.

I have always been puzzled as to how God managed to create this without light – but this may explain a few things about our flawed world. As you know he then said let there be light..and there was light.   As you all know, God went on to create many things, including whales, winged fowls, and a host of other most useful things we can eat – although pork and prawns are off limits to some religions – which is just fine, as all the more for those of us in our church.

God then went on to create man and woman….but, try as I can, I can find no reference to him creating lawyers….so where did they come from? They came in the form of the serpent…and the rest, as you know, is history.
So let me return to the first question: Why don’t lawyers pay to use the resources upon which their wealth, their firms, their chambers,  their great edifices of state – The Law Society – the Bar Council – are based? I think the secular state and Mr Osborne, he miss a trick here.  Perhaps they should pay? Perhaps they should pay a fee every time they quote a Statute or cite a case ?  Why not? – it would raise money and cut your deficit and stop you being called a third world country by my fellow cardinal who has gout and couldn’t make it over to Britain with Paparazzi last week.

Ah… but then legal fees would go up,  the lawyers would say in unison like a hydra  – for there is nothing quite so united as a group of lawyers when it comes to their own self interest and well being.

So we come to the fees. There are some lawyers who barely earn enough to live on doing great work – family law, criminal law, the bottom end of welfare law and the like – starved of fees by successive governments red and blue and now yellow and blue… YET… there are lawyers who can command fantastic sums of money for what is, in essence, a truly fantastic conjuring trick – interpreting the law for the benefit of their client.  Law is not difficult.  It is created by human beings, by politicians and,  where there is a lacuna, by judges.

Law is not that difficult intellectually – let’s be reasonable… compared to medicine, physics, chemistry, the discoveries of DNA et al…..putting a man on the moon, it is way down the scale of human achievement…… think of law as the rules of Monopoly…rather than the invention of the game itself – that was the clever bit… law isn’t clever… it is a necessary by product of man’s desire for ritual, for regulation and self preservation… the first laws… let us call them Commandments in the modern parlance – were very primitive structures and most law develops from them… I won’t kill you if you don’t kill me has the merit of providing for both the criminal law and the law of contract with a useful and profitable line for ambulance chasers… or what we call personal injury lawyers in the modern parlance…..

There were 10 commandments in another man made construct called the Bible….. let’s have a look at them…and see how many of these 2000 year old laws are still with us today… but wonderfully constructed so as to form an entire law industry….and bolster the needs of the ruling class, which, of course, includes the Church.

ONE: ‘You shall have no other gods before Me.’

What this really means is this…. It would be most inconvenient to our ruling structure if you came up with your own mumbo jumbo – so we will stop you by having a law against it…..

TWO: ‘You shall not make for yourself a carved image–any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth.’

We want to retain all intellectual property rights in our establishment  – think of it like merchandising for a modern day X-Factor……. Simon Cowell would be daft to let any old Tom Dick and Harry make X-Factor nonsense based on his idea – and he doesn’t, and nor do we… so no unlicensed graven images… etc etc thank you.

THREE: ‘You shall not take the name of the LORD your God in vain.’

Having set up ourselves as authority – and creating a most useful metaphysical manifestation of this authority…. we aren’t going to be that enthusiastic about you mocking it – that would undermine our power and authority… so that is Commandment Three.

FOUR: ‘Remember the Sabbath day, to keep it holy.’

We, the ruling class,  would like a day off… and we would prefer it if you weren’t out there running riot and thieving… so you will bloody well take a day off and not do anything which would cause you to do something stupid so as to disrupt our ruling class day off.

FIVE: ‘Honor your father and your mother.’

We like family values.. and it has the merit in a Big Society – an idea which your prime minister has nicked from us…..it is so much easier from a Law & Order perspective if parents take responsibility for their progeny…we want to cut back on policing and prison places.

SIX: ‘You shall not murder.’

Obviously we don’t want potential tax payers murdering each other.

You will note that the Commandments say ‘You shall not murder’…it says nothing about ‘Us’, as a state or government, murdering… Sometimes we have to go to war – it may be oil, for treasures, for territory – and it would be most inconvenient to us if people popped up claiming that we do is illegal… so it isn’t ever illegal for us to do it…. despite what foreign office lawyers and judges say.  The great office of state, to ensure that this does not happen, shall be called… The Attorney-General… who is fallibly infallible – another neat conjuring trick to ensure that, being trained in the law, he can give an opinion, change his mind and then not be held to account for doing so.

SEVEN: ‘You shall not commit adultery.’
We think it only right that people should form stable relationships and not behave like premier division footballers and go around shagging tarts. The ‘You” , of course, means You… not us. It is almost compulsory among the ruling classes to commit adultery – but we do it discreetly and have no need of superinjunctions because no-one would ever talk.

EIGHT: ‘You shall not steal.’

Again… you will note the use of the word ‘You’… We, in parliament, in government, in authority  are privileged... possibly… although there is a break away organisation, designed by a rogue Lord Chancellor on the back of a fag packet,   called the Supreme Court – which could cause us some trouble on that one.  Not a problem… we have come up with a plan should the Supreme Court prove to inconvenient to our interests….we’ll cut the budget by 40% and that will keep the buildings in good order but remove the inconvenience of the judges sitting and finding against us. Also, as you will appreciate, but probably not appreciate, we have to steal some of your money to run the place.  We call it tax. Naturally, there are exemptions for us – we call this off-shoring or non-domming.   To be honest, we don’t actually care that much if you do steal from each other, because we can fine you or put you to work in hi viz jackets.  What we are not at all keen on…. is you stealing from us.

NINE: ‘You shall not bear false witness against your neighbor.’

We are quite keen on libel and privacy law so that we can suppress inconvenient sentiment and intrusion into what we are up to  – even if it is true…so we shall devise  a libel law to be the envy of the world and invent superinjunctions – so that you will think not just twice about stepping out of line… you won’t think of doing it at all… and if you do it… no-one will know that we have stopped you doing it… because we have the SUPERINJUNCTION….

TEN: ‘You shall not covet your neighbor’s house; you shall not covet your neighbor’s wife, nor his male servant, nor his female servant, nor his ox, nor his donkey, nor anything that is your neighbor’s.’

Here, we in the ruling class have been genuinely altruistic and have done something to keep you all secure.

From this rather crude analysis you can see how all law is derived. It is all a delusion.  Here endeth the lesson…. In nomine Patris et fillii et Spiritus Sancti – I have left a small Visa card reader by the door…  I take Amex, Visa and Mastercard.  Please remember, next time you write to your politician, suggest that they bring in a tax on Law…. let the lawyers pay a bit for their wealth!

***

I have a policy of not editing guest posts.  Clearly, I shall have to think carefully before allowing Cardinal Charoni di Tempranillo to post again….mea culpa

Charon

Law Review: Bar Council Chair to Call for Considered Approach to Lawmaking

Bar Council Chair to Call for Considered Approach to Lawmaking

Bar Council Press release: 19 September 2010

Nicholas Green QC, the Chairman of the Bar Council, which represents barristers in England and Wales, will call on the Government to take a more considered approach to lawmaking. The call comes as Liberal Democrat Conference delegates come together to consider the repeal of some of the huge number of criminal offences created by the previous Government.

Speaking at a fringe meeting, hosted by the Liberal Democrat Lawyers Association, at Liberal Democrat Party Conference in Liverpool, Nicholas Green QC will say:

“We welcome the Coalition Government’s commitment to publish a Freedom (Great Repeal) Bill and its efforts to canvass public opinion on which laws should be considered for repeal. There is a wealth of expertise that the professions and the public can offer Government in identifying otiose, overly-burdensome or excessively authoritarian legislation. The thousands of new criminal offences created by the previous Government present a sensible starting point.

“However, the Government must also take a considered approach to making new laws, so that it does not fall into the same trap as previous administrations. In the past there have been too many knee-jerk reactions. Parliament and the Select Committees must play a strong role in scrutinising legislation, and thorough impact assessments should be carried out before any further criminal offences are introduced.

“The Freedom Bill presents an excellent opportunity for the Government not just to scrap unnecessary laws, but also to reflect on its approach to lawmaking and to consider a broader codification of criminal justice legislation. The recent Law Commission consultation, which has called for a reduction of the role of the criminal law in regulated fields, such as banking and food safety, is a perfect example of a rational approach.”

He added:

“The Bar Council also supports greater post-implementation reviews of secondary legislation, for which the Lords Merits of Statutory Instruments Committee called last year. Departments should include in their Impact Assessments a clear baseline position against which change introduced by legislation can later be measured to assess whether success criteria can be met.

“The Bar Council, particularly through the work of our Law Reform Committee, welcomes this opportunity to contribute to the debate.”

The Bar Council’s presence at Liberal Democrat Party Conference is part of a broader effort to update parliamentarians on the Bar’s interests and activities.

Rule Britannia – a free country? Best justice in the world? You have to be joking, Guv!

Before I get lynched by a herd of over refreshed ranting Libertarians after a night out on Twitter or trolled by shaven headed knuckle draggers who want Ingerland for the Ingerlish – whoever they are – let me preface this fairly serious post with the remark that there is a great deal to be proud of in our heritage, in our country and in our mores – but there is a fair bit we need to think about seriously if we are to be a truly progressive country with a justice system and observance of human rights truly worthy of the name.

Over the last 10 years we have seen an extraordinary erosion in our civil liberties – detention without trial, control orders, cctv, proposals for ID cards, the misuse of RIPA,  an increasingly authoritarian stance to regulation of society, a growing intolerance to rights of freedom of speech (libel and privacy law come to mind)  and a creeping acceptance that ‘national security’ interests merit such erosion….to list but a few.  I don’t need to rehearse examples of this – the literature, press and blogs are out there for all to see.  That much of this erosion happened under a Labour government is the reason, for the present, why I have decided to go independent and non-aligned politically until such time as Labour, or other party, delivers a coherent and truly progressive plan for governance of our country without the need for authoritarian and repressive laws and governs in accordance with a rule of law which we can be proud of and, that old fashioned concept, ‘consent’ to.

Nick Clegg is spearheading the repeal of ‘bad laws’ and wishes to bolster our civil liberties. I very much hope he is successful in persuading his Coalition partners to do this and to examine this carefully.  What Nick Clegg will also need to grasp, I’m afraid, is that government cannot claim to have set in place a system of rights, a progressive approach to government, without the machinery to enforce the compact between state and people and people with each other.  Plans to cut courts, plans to cut criminal and civil  legal aid beyond the bone will severely damage the reality of rights, civil and criminal,  in this country – simply because people will not be able to afford to go to court or defend themselves adequately should court action be necessary.

That said, I turn to the purpose of this brief post:

“The possession of great powers by the state is not a reason for using them – rather (it) should prompt a principled determination to ensure that the permissible exercise of such powers is strictly defined, regulated and monitored so as to guarantee that any intrusion into liberty and privacy of the individual is fully justified by an obviously superior community interest.”

Lord Bingham, former Lord Chief Justice and Senior Law Lord

Twitter and terrifying tale of modern Britain

Nick Cohen writing in The Observer today: Paul Chambers has felt the full force of state persecution, simply for sending a tweet.

The head of MI5 has warned we must take the threat of new Islamist atrocities seriously. If the abuse of antiterrorist legislation in the Paul Chambers case is a guide, the people who most need reminding of the importance of seriousness, are MI5’s colleagues in the criminal justice system.

The 27-year-old worked for a car parts company in Yorkshire. He and a woman from Northern Ireland started to follow each other on Twitter. He liked her tweets and she liked his and boy met girl in a London pub. They got on as well in person as they did in cyberspace. To the delight of their followers, Paul announced he would be flying from Robin Hood airport in Doncaster to Northern Ireland to meet her for a date.

In January, he saw a newsflash that snow had closed the airport. “Crap! Robin Hood Airport is closed,” he tweeted to his friends. “You’ve got a week… otherwise I’m blowing the airport sky high!”

People joke like this all the time. When they say in a bar: “I’ll strangle my boyfriend if he hasn’t done the washing up” or post on Facebook: “I’ll murder my boss if he makes me work late”, it does not mean that the bodies of boyfriends and bosses will soon be filling morgues.

You know the difference between making a joke and announcing a murder, I’m sure. Apparently the forces of law and order do not.

Paul Chambers was prosecuted and was fined.  He now has a criminal record. He was fired from his job.  The appeal is coming up this week. David Allen Green who writes the excellent Jack of Kent blog has covered this in great detail and is, I understand, helping Paul Chambers. As the Jack of Kent blog has covered this in detail all the way through I happily refer you to the latest blog post.

Why the Paul Chambers case matters

As Jack of Kent writes…

This week will see the appeal by Paul Chambers of his conviction under section 127 of the Communications Act 2003.

He was convicted – and so given a criminal record – for what was, and what was intended to be, a joke contained in a tweet.

(By way of background, see my posts here, here, and here.)

At no stage in this story does any person who knew better – either at airport security, the police, or the CPS – act in a sensible and responsible manner.

None of these people believe this is a serious matter – the airport security judge it “non-credible”, the police seem to eventually accept it was not a significant issue, the CPS know it is not a bomb hoax – but Paul is to be prosecuted anyway, just because no person can be bothered to stop an illiberal process which would give a blameless man a criminal record.

My long preamble had a purpose – to set this case in a context.  The Rule of Law is an essential concept in any progressive and civilised society – but it must be a Rule of Law which can be respected. The tabloid media will always stir up nonsense about judges being out of touch, judges being too lenient, politicians being too soft on crime, polls to show that the majority want to bring back hanging, birching and the like – and the tabloids will be the first to criticise the state, the DPP et al,  when prosecutions can’t be brought because of the law, when our senior judges rule against the government of the day because they, the government, are not complying with the law of our country. Much of that is press waffle tailored to an agenda,  and ill thought out waffle at that when examined closely.

It is ironic that such care was given to a decision not to prosecute the Policeman in the tragic Ian Tomlinson case – a decision which  provoked kneejerking on an industrial scale by those who did not fully appreciate the legal and evidential difficulties faced by the DPP – yet the DPP seems not to have exercised such care in the Chambers case and is engaged in this shameful prosecution of a fairly young man who admits he was a bit daft to tweet as he did;  a tweet which would have been regarded by any sane or sensible person as a joke and which not even the Police, now, regard as a genuine threat.

I hope the appeal is successful – not just for the sake of Paul Chambers, but for the sake of our Rule of Law. We can’t respect a Rule of Law which is based on such ludicrous decisions to prosecute – and the government, the law, the police, the authorities,  are going to need a lot of respect from those subject to it in the difficult years ahead.

We must repeal bad laws, we must as a country use powers wisely and not vindictively or indiscriminately… or here, absurdly.  The DPP may well wish to remember (and, given his background as a practising barrister, knows this well) that respect is a two way street.  We give you credit when you are faced with difficult decisions and are exposed to ill informed criticism.  I don’t think it too much to ask that the DPP recognises and addresses criticism when it is well founded.

As ever, your thoughts are welcome. I simply express a personal view – and you may do the same if you wish to in the comments section.  If you want to keep up on developments on this – The Jack of Kent blog is the place to do so.

***

You may find this excellent  technical analysis by Andrew Sharpe, partner at Charles Russell,  on why this is bad law of great interest

Tweet in haste, repent at leisure

Lord Ashcroft delivers tough verdict on Conservative election failings – Bovvered?!

Lord Ashcroft delivers tough verdict on Conservative election failings

Lord Ashcroft, the controversial billionaire Tory donor, has written a tough public critique of what he sees as the costly flaws in the Conservative Party’s election campaign.

This fascinatingly dull story came from The Telegraph….. should you want to spend a bit of time reading it.  I wouldn’t bother.. it is rather dull. (And I voted Labour FFS)

Who cares?  I don’t… I’d far rather read Lord Sugar’s tweets… at least he has a sense of humour….. even if he hasn’t been verified yet and has to spend a bit of time saying it really is him…. and even if he does have a book to sell – but he also has to tell people on Twitter that it is his only book and all other books are written by imposters or unauthorised biographers He came up with a cunning plan today….told people to look at his official company website for the twitter link… SORTED!…. an imposter couldn’t get a link on there….surely?

Poor old Lord Sugar…. he’s still got people doubting it is him on twitter…this….from this morning…

I am warming to Alan Sugar by the day!   I shall certainly have a gander at his book.

Law Review: Foreign lawyer curbs – Baroness Hale – 39 Essex St site hacked?

The Law Society is the latest institution to jump aboard the tumbril heading inexorably to the Treasury guillotine to protest about the immigration cap.

The Law Society Gazette: ” The Law Society has today made a submission to the Home Office warning that its proposed limits on non-EU highly skilled migration could damage the legal sector. The submission follows concerns voiced by Liberal Democrat business secretary Vince Cable this week that immigration limits are damaging British industry. The Law Society said the proposals will threaten the UK’s position as a prominent legal centre, severely restricting law firms’ overseas work and their ability to employ international lawyers.”

The fact of the matter is that English law firms do enjoy a global reach and bring a great deal of taxable income into this country – not, by any means, as much as the banks but still an amount –  one would have thought – of interest to H M Tax Grabbers.  We have little enough industry or manufacturing in this country left and now the government may well be killing off the golden goose of services generally, not just law and banking, with the planned curbs on immigration – policy designed to lull their constituency middle England vote into believing that something is being done about immigration.

Unfortunately, little can be done about immigration from EU countries because of free movement rules – although Cameron, on a recent visit to Turkey, while enthusiastic about Turkey joining the EU, was careful to note that ‘something would have to be done about the free movement question’.  We are not terribly interested in Turkish lawyers at the moment.  Law firms want Indian and Chinese lawyers, possibly Russian lawyers, because, frankly, those are territories where English law firms can make even more money.   The thought of training ‘out of work’ English lawyers to become expert in the laws of India, China, Russia et al is not the answer – because I suspect that English law firms are more interested in doing deals in those countries where the ‘sweetener’ of working with ‘local partners’ there and employing their  ‘local lawyers’ here is what it is all about.

Hopefully, The Law Society will consider the issue of small high street solicitors and focus more on their difficulties in these straitened times.  I suspect the immigration cap will slowly disappear and a bit of fudge will be applied.  The Coalition may well accede the the ‘real politik’ which Vince Cable wants to see implemented for the best of business reasons.  We are not, after all, talking about ‘immigrants’ who will come over and steal British jobs or rush to the head of a benefits queue.  We’re talking about rich lawyers – who, if things go tits up can effectively be deported!

Baroness Brenda Hale: “I often ask myself ‘why am I here?”

Supreme court judge, Baroness Brenda Hale, on the highlight of the court’s first year, selling bottled water and becoming known as ‘Ms Diversity”

I’d like to draw your attention to an interesting interview in The Guardian. Baroness Hale talks a great deal of interesting sense… which isn’t surprising.

TOP barristers have been left red-faced after cybersquatters diverted their clients to a porn website.

The SUN reports, rather lasciviously… “Anyone searching online for legal services at leading London chambers 39 Essex Street — are instead offered hardcore PORNOGRAPHY.

Among the attractions are lesbians, cheating wives, shemales, MILFS and local swingers.

The chambers headed by Richard Wilmot-Smith QC is showcased at www.39essexstreet.co.uk, which promises “solid and clear advice on a range of public law issues”.

But the only briefs being offered currently are worn by the ‘babe of the week’.

And those looking to instruct a barrister are instead offered webcam sex and a ‘live nude chat’.

While a search facility on the site says ‘Not quite what you are looking for?’ next to a button saying ‘Spank it’.

A Chinese company has been demanding 50,000 US dollars to hand over the domain name since cybersquatting it a week ago.

The chambers says it is “considering its options” with its own lawyers but has no intention of being held to ransom.

Chambers director Michael Meeson said: “This is highly irritating.

“We will be issuing a statement pointing out that this is not our domain name.”

I was most disappointed when I Googled 39 Essex Street not to find strippers, MILFS and a host of other sexual phenomena – but that may be because 39 Essex Street have a different web address than the one given by the Sun above. The www.39essexstreet.co.uk address given – now diverts to the Essex St Chambers… so still no MILFS,strippers etc… just serious barristers.  It must have been a bit of a bore for Chambers admin when it happened.

And on the subject of MILFs, strippers and other sexual phenomena.. this wonderful story (Via @Overlawyered on twitter )


In Professor-Dominatrix Scandal, U. of New Mexico Feels the Pain

The Chronicle: In some ways, working as a phone-sex dominatrix is a lot simpler than being on a college faculty. Your relationship with others is clearly defined, no one formally complains about anything you say to them, and you stand little risk of getting caught up in messy struggles over power.

It gets complicated, however, if you try to do both jobs.

Life has become extremely complex in the University of New Mexico’s English department in the three years since Lisa D. Chávez, a tenured associate professor, was discovered moonlighting as the phone-sex dominatrix “Mistress Jade,” and posing in promotional pictures sexually dominating one of her own graduate students.

Although she quickly quit the phone-sex job, admitted to a serious lapse of judgment, and was not found by the university’s administration to have violated any law or policy, Ms. Chávez remains at the center of a bitter controversy that has raised questions about faculty governance, the obligations of professors to protect students, and the exact definition of a hostile workplace in an environment of shifting sexual mores.

Can’t quite see anyone at BPP Law School or The College of Law moonlighting in this way…..  I suspect that they are reasonably well paid.

Clegg on the FRONT PAGE of The Indie! Wonderful nonsense…..

It is not for me, of course, to make any connection between the question asked by Christina Patterson at the top of this Indie frontpage… readers will… I have no doubt…be able able to make their own connection(s).

Consistent with those clever competiions in Tabloids and Broadsheets… I have tendered a possible answer to this question below.  It is upside down…natch!

Papal Bull:Non-believers likened to nazis?!

Pope speech compares atheist ‘extremism’ with Nazism

In a bid to extend the hand of friendship to the people of third world Britain the Vatican let loose their equivalent of Malcolm Tucker last night to tell us all that landing at Heathrow airport was like entering a third world country.  The Cardinal, who now has gout, explained his words by saying he meant that we had a lot of different people here. Bizarre  It is probably just as well he had to cancel his trip to Britain with Pope due to gout.

Not to be outdone the Pope said he was extending a hand of friendship not just to Catholics – but clearly not to people like me – atheists or secularists.

The BBC reports: The Pope has compared “atheist extremism” to the Nazi tyranny of WWII in a speech given in Edinburgh as he begins a four-day visit to the UK. The pontiff praised Britain’s fight against the Nazis – who “wished to eradicate God” – before relating it to modern day “atheist extremism”. Afterwards his spokesman Federico Lombardi said: “I think the Pope knows rather well what the Nazi ideology is”.

Humanists have said the comments were a “terrible libel” against non-believers.

A statement from the British Humanist Association said the Pope’s remarks were “surreal”.

“The notion that it was the atheism of Nazis that led to their extremist and hateful views or that it somehow fuels intolerance in Britain today is a terrible libel against those who do not believe in God.

“The notion that it is non-religious people in the UK today who want to force their views on others, coming from a man whose organisation exerts itself internationally to impose its narrow and exclusive form of morality and undermine the human rights of women, children, gay people and many others, is surreal.”

Well… that’s a good start.  Wonder what he’ll do for his next trick?!

In the meantime – a little bit of Springtime for Hitler from The Producers.  Makes me laugh

Law Review: A few law blogs from the UK

On this day when The Pope visits our shores, I thought I would have a look at a few law blogs……

First up is the all new Pink Tape blog – a blog by a family law barrister ‘Familoo’ – her About section explains all.  I quote her own words to describe the blog.  I am not a Family lawyer – but I do read Pink Tape...

“A blog in which I ricochet from too serious to too flippant, and alternate between a bit clever, a bit interesting and a bit ranty: Pink Tape neatly functions as both a blog about family law and a therapeutic escape valve for me.”

Pink Tape: Well worth a visit!

Other Family Law blogs of particular valueJohn Bolch’s Family Lore. John, an experienced solicitor now devoting his time to writing about family law works tirelessly on family law updates and commentaries.  He even does podcasts with Natasha Phillips whose excellent blog Divorce Manual is also worth a look. See also Family Law Week

I’ve been impressed by the new Guardian Law website and Afua Hirsch’s blog on The Guardian is a good read. Another Guardian blog worth reading of course is Babybarista.  Just one word of warning.  I had a very long lunch with the author of Babybarista recently. He also publishes Babybarista on his own blog.  I’ve known Tim Kevan for some time…..  If he should sidle up to you and suggest a long lunch…be afraid… be very afraid.  Very amusing… but you may need to consult a doctor afterwards for your liver!

I came across this fascinating free law website today on twitter: Legal FuturesThe essential free guide to conduct, compliance and competence for lawyers. Speaks for itself rather well…or res ipsa loquitur as we say over at Muttley Dastardly LLP when we want an uplift on our fees.

I drew your attention to new blogger The Utterant yesterday – but I am master of this slightly surreal ship, so I’ll mention The Utterant again – definitely a good read.

Serious law blogging is done well in many quarters and here is a small selection of specialist blogs from the UK that are a must read if you are interested in the particular subject matter

Head of Legal – Constitutional Law, human rights and civil liberties (in particular) written by former government lawyer Carl Gardner

UK Human Rights Law: – A superb resource and blog from the team at 1 Crown Office Row – first port of call for comment on UK Human Rights Law

Jack of Kent –  Written by practising lawyer David Allen Green – libel, privacy, law reform, constitutional and hard cases. He also writes about ‘Bad Law’

Charles Russell Critique – An excellent commercial blog written by Andrew Sharpe – telecoms – commercial contracts

Inner Temple Library Current Awareness – why go anywhere else for their news service.  I use it oas an RSS feed for Insite law – excellent

John Flood’s RATS – Random Academic Thoughts from prof John Flood – eclectic and interesting.

Law and Lawyers – Obiter J’s excellent blog on human rights and international law

MTPT – a blog by a ‘twenty-something’ solicitor, Matthew Taylor  – eclectic, analytical and a good read – politics, civil liberties – broad based

Conflictoflaws.net – it does exactly what is says – Conflicts.  Definitive

The Magistrate’s blog – By Bystander JP – he’s been around a long time and the blog is a very enjoyable read.

UKSC Blog – You just can’t get more definitive or detailed on the work of the UK Supreme Court – an excellent resource.

Simon Myerson QC Pupillage and How To Get It – if you are thinking of reading for the Bar you have to read this.

Android’s Reminscences – a recently qualified barrister – musings, but good ones – and great artwork

Law Actually – IT and telecoms law

Nearly Legal:Housing Law – a very comprehensive resource on housing law issues

SB Consulting – tax matters.

Lallands Peat Worrier – a sophisticated blog on Scots law

Loveandgarbage – another excellent blog on Scots law…and other matters

Landlord Law blog – Landlord & tenant law Tessa Sheperton

White Rabbit – absolutely no law in it whatsoever  (* – except when there is) – but a truly surreal and excellent read.  Another barrister who enjoys a drink with me and vice versa (See Kevan above, Babybarista)

The Fat Bigot – I knew The Fat Bigot many moons ago – a retired criminal barrister – always on the button with his observations

There are more (many in my blogroll) and this is but a small selection to be going on with.  I will do another blog review shortly and include others not mentioned here today.

Hanging High: President I’madinnerjacket welcomes President Chav …. Were they stoned?

The good thing about this photograph is that Ken Livingstone isn’t in it…  quite how he managed to miss this photo opportunity, I have no idea….  but he is trying to come back as London Mayor… so… maybe things aren’t so bad with the renegade Tory Boris?  (Boris is the only Tory I have voted for in my life!)

I am assuming that some crazed judge won’t actually want to hang President I’madinnerjacket for this picture… ? Stranger things have happened in that country…. mind you, I’madinnerjacket may have been stoned when this picture was taken… but that observation probably isn’t that helpful as evidence for the defence  either where he comes from?

Source of Pic – Huff Post!  Where else!

Legal profession responds to hard times…. auction site for work!

The latest idea from the febrile minds of those who work in or around the legal profession is AUCTION for Work!  My fellow blogger: The Utterant has a wonderful piece on this development on his blog and an excellent cartoon.

Next week Muttley Dastardly LLP is organising one of those dance competitions they used to run in the Great Depression in America.  A sort of Strictly Come Dancing meets Desperate Lawyers.  The prize is a juicy personal injury law suit and the lawyers left standing at the end of the marathon dance will be awarded the work.  Muttley Dastardly LLP will, naturally, be taking a facilitation and services fee of 25%.  We don’t watch the Dragons’ Den for nothing at Muttley Dastardly LLP

Lord Shagger writes….

Summer is drawing to its usual conclusion and although I was in town briefly (I have to be careful of the number of days I visit Blighty these days being a non-dom tax avoider) I wasn’t able to meet up with you.  Next time?

I see that the Pope is doing his solo tour tomorrow – hardly a sell out event – and that one of his Cardinal jonnies has described Britain as a third world country.   The BBC reports him as saying “when you land at Heathrow you think at times you have landed in a Third World country”.  Closer inspection reveals Cardinal Walter to be German born.  Makes you wonder why his fellow countrymen in 1940 were so keen to have the place – but, on this the 70th anniversary of The Battle of Britain – they couldn’t hack it then and don’t seem to be able to hack it now. One wonders what goes on in the heads of these god squadders – and here we have a ‘head shed’, who one would have thought was a few steps up the scale from some of the unfortunate poor who look up to these chaps, talking nonsense.  Mind you, he has a point about Britain being in the grip of secular atheism – long may that continue.  God Save Richard Dawkins, as we shout each night at a bar on the Grand Corniche as a toast….God Save Richard Dawkins!

Moving on…. I see that Crow, who resembles a bouncer on a fag break more each day (I can’t remember where I read that description, but I liked it.  It may have been on Twitter), is too busy to listen to the Governor of The Bank of England.  I’ve heard of people taking revenge on bank managers, but that is, clearly, taking things a bit far. A number of us down here are doing a spot of spread betting on the number of strikes, days the strikes will be called, how many unions will come out in unison on a particular day…that sort of thing.  Met a very nice chap from Pakistan who was seeking our advice as to the possibility that a Union could bowl a couple of no-balls and actually not call a strike after threatening to do so. Apparently his contacts in various cricket teams are not too keen to talk to him at the moment.  Can’t see why.  Much more fun watching a cricket match knowing that one can make £10,000 have predicted accurately that a no-ball will be bowled in the third ball of the fifth over and hilarious watching otherwise talented cricketers dropping catches, batting like prep school boys and generally trying not to give the game away… or…should I say… trying to give the game away.   Do appreciate the point that this fixing of cricket games etc isn’t really cricket.

Talking of twitter, my old friend Lord Sugar is on Twitter, tweeting away.  Making rather a good job of it, as it happens.  The only problem is –  because there are so many frauds about the place – and we have a fair number down here in Monaco, they say…. he can’t get anyone to believe him.  I know you’ve done your bit to help, but a few of us down here are having bets on who he will appeal to verify that he is, indeed, Lord Sir Alan Sugar!  @DuncanBannatyne must be getting fed up saying that it really is Lord Sugar!   Never mind, he’ll get his blue Verified badge soon enough. You have to hand it to Sugar – he really does ride bicycles and rather well.  A number of us are thinking of following him next time in a white limousine and bet on how many punctures he has, how many times people shout out “You’re Tired” as he rides by…that sort of thing.

I know you disapprove of my non-dom status, now that I have left Muttley Dastardly LLP as a full time partner, but even we were astonished that Sir Phillip Green, whose tax arrangements are most convenient to him and his family – and perfectly lawful, has been invited to advise the government on the cuts.  Being a tax avoider isn’t exactly flavour of the month in Britain at the moment… and is hardly consistent with ideals of a Big Society – but, there we are.

Well… probably enough to be going on with.  A number of us are placing bets on how many people attend various papal events, if he will be arrested by Richard Dawkins and Geoffrey Robertson QC and whether the Duke of Edinburgh will come out with a famous gaffe when The Pope meets him.  I have a pony at  2/1 on the Duke asking him if he had any kids.

On that note….speak anon

Best

Shagger

I’m devouring Tony Blair’s book…

‘On that night of the 12th May, 1994, I needed that love Cherie gave me, selfishly. I devoured it to give me strength. I was an animal following my instinct, knowing I would need every ounce of emotional power to cope with what lay ahead. I was exhilarated, afraid and determined in roughly equal quantities.’

Enjoying Tony Blair’s book A Journey – but I do enjoy political biographies of all complexions. I will even read Gordon Brown’s – but may need to put a wet towel around my head.  They say it will be ‘technical’.

Tony Blair interviewed by Katie Couric – live

Guardian: Join Hadley Freeman as she watches Tony Blair being interviewed in New York after yesterday receiving the Liberty Medal for conflict resolution

Law Review: Tugendhat J replaces Eady J – Expenses MPs case goes to the Supreme Court

Eady stepping down as top libel judge does not affect the need for libel reform

David Allen Green, author of the Jack of Kent blog, writes in The New Statesman:

From 1 October 2010, Sir David Eady will no longer be the senior libel and privacy judge at the High Court (also see report here). He will still be able to hear libel and privacy trials — he is not retiring outright — but he will no longer pick and choose which media law cases go before him.

This is welcome news; but not because Mr Justice Eady is particularly culpable as a judge. In fact, Sir David Eady is generally no worse and no better than any other judge applying the dysfunctional English law of libel. He has given almost as many heartening liberal defamation judgments as dreadfully illiberal judgments. And his contribution to the development of privacy law is commendable: the mainstream media is now less likely to intrude upon people’s personal space and misuse private information just because of his rulings.

It is instead welcome news because it de-personalises a complex problem. The problems with libel law are to do with the substance of the law and the way it is litigated and threatened, and not because of any particular judge….

David Allen Green ends with these words – which I  agree with….“The awful — indeed dispreputable — state of English libel law will still be there the morning after he steps down.”

MPs’ expenses case taken to Supreme Court

The Telegraph reports: Three former Labour MPs charged with fraud over their parliamentary expenses are to take their case to the Supreme Court.

Elliot Morley, David Chaytor and Jim Devine are to appeal to the country’s most senior judges at a hearing next month. The three, along with Lord Hanningfield, a Tory peer also accused of expenses fraud, are due to go on trial in November.  But they claim that they cannot be tried in ordinary criminal courts because of centuries-old laws on parliamentary privilege. Three Court of Appeal judges found against them in July saying that they could not envisage how the ancient defence could ever cover “ordinary criminal activities” by MPs and. But the Lord Chief Justice, Lord Judge, ruled that there was a “point of general public importance” for Britain’s highest court to rule on.

I am no expert on Constitutional Law but the Court of Appeal decision was very robust, clear and to the point;  and while it is right that justice pursues its course and matters of public importance are considered by our highest court, one can’t help feeling that the Justices of the Supreme Court will have little difficulty in dealing with this issue on parliamentary privilege  and confirm the decision of the Court of Appeal.   We shall see in time – but if they find for the MPs the judgments will keep constitutional law experts busy for a while. It will also mean, of course, that Parliament will have try the MPs.  Will they use Westminster Hall?  One thing is for certain… the MPs will not be able to use the plea of Charles I…“I would know by what power I am called hither, by what lawful authority…?”

As an aside,  I saw on Twitter that a YouGov poll revealed that 51% of people want to restore the death penalty. I had no idea there were so many medieval barbarians alive and well in Britain today.. but..there you are.

Rant du Jour: Luvvies and politics

Beam the bugger up, I was going to write on twitter…. why celebrities, with no greater insight into politics (many of them, I suspect) should feel the need to *pronounce* on matters politic, vainglorious in the belief that we actually care what they they think, is quite beyond me.  They are, of course, entitled to a view – but then the snake oil carpet baggers from the political parties PR departments grab it and broadcast to a largely uninterested world.

There … I’ve had my rant du jour – now a spot of late lunch with a glass of vino rosso.

Law Review: Metgate grinds on….

I was hesitant in commenting on the Metgate saga (as I have stated several times in blog posts) partly because other bloggers are doing so and partly because of that old hoary chestnut of evidence. We are all reliant on detail provided from the media and this latest article from Donald Trelford in The Independent is worth a read…

Donald Trelford: Without a paper trail, Coulson will survive

The Independent: Media Studies: Only if Coulson faces criminal charges, or is shown to have lied to MPs, will he lose his job

Trelford writes: “I doubt if the MPs’ committees will link him to any criminal activity. The New York Times certainly didn’t, apart from the uncorroborated testimony of disgruntled former reporters, most of them anonymous, one from someone who had left the News of the World with drug and alcohol problems. And why did the American paper devote three reporters and 6,000 words to a story in Britain? It was to embarrass Murdoch, with whom they are engaged in a cut-throat survival battle against his revamped Wall Street Journal.

***

And talking of ‘tricks’…. this….

Former minister in High Court battle over election ‘dirty tricks’

Telegraph: Phil Woolas, the former immigration minister, could be thrown out of Parliament after being accused of breaking electoral law with a “toxic” dirty tricks campaign against a general election rival.

***

Kneejerking – a common problem with political people –  or a fair point?

Lenient justice – who will judge the judges?

Douglas Carswell MP wades in…… “The great Philip Davies, MP for Shipley, has uncovered the startling fact that over the course of a year, not a single one of the 10,000 burglars brought before the courts was awarded the maximum sentence.

This raises the question of whether burglars actually face justice at all.  Might it be that those who preside over our criminal justice system – especially judges – are in thrall to the idea that justice is about rehabilitating wrong-doers, rather than punishing them?”

Postcard From The Staterooms 12 September 2010

This week, after thinking it might be a good idea to drink some cider for a change (it wasn’t), my postcard may well ramble more than usual…..

It has been quite a week. An ignorant bigoted self styled pastor managed to attract world wide interest and the attention of the President of The United States for his offensive plan to hold a ‘Koran Burning’ session.  I commented on this in a post yesterday but I would like you to have a look at this wonderful post on 9/11 if you haven’t already seen it from Meg Cabot.  It is a strong piece of writing about 9/11

With the Pope on his way…. Geoffrey Robertson QC, Richard Dawkins and a host of others wanting to arrest/criticise/vilify him… I thought I would balance things up a bit with this wonderful movie which I heard about tonight on Twitter…

This is fun if you like a bit of Papal Bull (via @Colmmu) http://youtu.be/i6ULDSNf87A “Twat in the Hat”

Put the pope in the dock

Geoffrey Robertson QC: Legal immunity cannot hold. The Vatican should feel the full weight of international law

I enjoy twitter. I enjoy social media and, obviously, I enjoy blogging. Are people one comes across on twitter and through comments on blogs any less real because it is an online experience?  I don’t think so – and certainly not for those I have met, podcasted with or talked to over the telephone as a result of meeting them online.  I would even say that others I tweet with regularly are ‘real’ in the sense – whether I agree with them or not – that they interest me and I look forward to reading their latest thoughts on twitter.   Suzanne Moore summed it up rather well in her Daily Mail column.

Charles Christian, who I have known for many years – has another side to his life….here is a tweet from earlier this evening… (I did offer to be a dysfunctional Rioja drinking walk on… so… maybe?)

This is @ChristianUncut’s tweet: Latest episode of my diary of a novel: I’m now turning all my major characters into deeply flawed human beings. http://bit.ly/boxVJY

Many will write about Lord Bingham who died yesterday. I think his words are a more powerful obituary than the many being written – and I am confident that those who write will not be offended by my comment, for their obituaries are strong and honestly written.  My own post is here.

A remarkable man – but I chose his penetrating statement about the Iraq war as one of countless thoughts he had, expressed in talks, lectures, books and judgments, to sum up his remarkable contribution to British life and not just legal history, but our history.  Afua Hirsch writes in The Guardian…and I quote…

In his own book, released this year, Bingham described the text of the Magna Carta, with its “no free man shall be seized or imprisoned or stripped of his rights or possessions … except by the lawful judgment of his equals or by the law of the land” as having the power “to make the blood race.”

“These are words which should be inscribed on the stationary of the Ministry of Justice and the Home Office, in place of the rather vapid slogans which their letters now carry,” Bingham said.

I can certainly run with that… I suspect most people can and do….. let us hope government, of whatever complexion, does too.

Difficult to follow that, so I won’t.

Have a good week

Best, as always

Charon


Lord Bingham of Cornhill obituary

Lord Bingham of Cornhill obituary

The Guardian: The greatest English judge of the modern era, he saw judicial independence as essential to the protection of human rights

It seems fitting (to me) to mark Lord Bingham’s death with three quotations  – of many –  from his writings and judgments:

If I am right that the invasion of Iraq by the US, the UK, and some other states was unauthorised by the security council there was, of course, a serious violation of international law and the rule of law.

For the effect of acting unilaterally was to undermine the foundation on which the post-1945 consensus had been constructed: the prohibition of force (save in self-defence, or perhaps, to avert an impending humanitarian catastrophe) unless formally authorised by the nations of the world empowered to make collective decisions in the security council …

The Rule of Law in the International Order (Nov. 2008)

Lord Bingham of Cornhill


Lord Goldsmith’s ‘revival argument’ for the legality of the Iraq war: “…all that resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorise force.”

Lord Bingham’s response: “This statement was, I think flawed in two fundamental respects… First, it was not plain that Iraq had failed to comply in a manner justifying resort to force and there were no strong factual grounds or hard evidence to show that it had: Hans Blix and his team of weapons inspectors had found no weapons of mass destruction, were making progress and expected to complete their task in a matter of months.

Secondly, it passes belief that a determination whether Iraq had failed to avail itself of its final opportunity was intended to be taken otherwise than collectively by the Security Council.”

The former senior law lord noted that Lord Goldsmith’s “revival” argument had been ill-received. Lord Alexander QC described it as “unconvincing”. Prof Philippe Sands QC called it a “bad argument”. And Prof Vaughan Lowe QC described it as “fatuous”.

The Rule of Law in the International Order (Nov. 2008)

It would appear that our governments have ‘form’….

Writing to the Prime Minister on 7 November 1956, the Attorney General, Sir Reginald Manningham-Buller QC, said “… I support and have supported the Government’s actions though I cannot do so on legal grounds.” After a meeting the next day he wrote again, on behalf of himself and the Solicitor General, Sir Harry Hylton-Foster QC: “Although I support what we have done and have said so publicly, we cannot, as you know, agree with the statements made on behalf of the Government that we were legally entitled so to act.”

The Rule of Law, Nov 2006

The Falling Man and an ignorant bigoted pastor(d)

Today is the 9th anniversary of 9/11.  I watched a bit of The Falling Man – a powerful film which brought back the horror of the experience of those who died, their loved ones and for those who were there. My wishes go to them.

But then we went to war – en route to Iraq, now proven to have had no links with alQa’ida.  A lot of soldiers have died in Iraq and Afghanistan..  A lot of civilians have died.  We haven’t caught Bin Ladin.We may not defeat the Taleban in Afghanistan in the long term – but more will die.  Are we achieving anything other than to kill and worsen relations between Islam and the West, between peoples of many nations and the coalition countries;  particularly America and Britain?

It is rather sad that this anniversary will be remembered for the actions of a simple minded self styled and bigoted pastor and his koran burning plan, stirring up further hatred and death, probably fanned by those with their agenda –  than for the death of innocent men and women,  quite a few  of them muslims , who died because of an attack on the USA by alQa’ida

I’d like to flag up two articles I read today – both powerful in their own way…..

Robert Fisk: Nine years, two wars, hundreds of thousands dead – and nothing learnt

Independent: Did 9/11 make us all mad? Our memorial to the innocents who died nine years ago has been a holocaust of fire and blood . . .

If the ‘Mosque’ Isn’t Built, This Is No Longer America

By Michael Moore

Selamat Hari Raya to my Malay readers and Eid Mubarak to those who celebrate it in peace.

Law Review: The “Phantom Lawyer of The Opera” kicks own goal?

I enjoy opera.  I am not a ‘buff’ – although I used to be ‘buff’  (a blogger can dream?) – and I have been to The Royal Opera House (ROH) many times; paying quite fantastic sums of money for the privilege. I particularly like Tosca – where the chance of the fat lady bouncing back up after falling off the battlements gives me the strength to survive a rather lengthy evening out.

I can’t remember – but does The Royal Opera House receive any public money to fund its operations?

The Lawyer, taking a break from reporting on deals and who is shafting who in The City and our world of law – has an excellent story….

Royal Opera House threatens to sue blogger over photo row

The Lawyer: The ROH head of legal and business affairs George Avory demanded that the pictures be removed from the website Intermezzo because use of the images allegedly infringed ROH copyright.

In an email exchange between the blogger and ROH, which has now been posted on the Intermezzo website, Avory warned that the blogger’s ROH membership would be withdrawn if the images were not removed, adding that lawyers would be instructed to pursue him for damages.

The Lawyer reports… “On Wednesday (8 September) Avory told the blogger that since he had failed to respond to previous legal letters, “we will therefore instruct external consul (sic) to commence proceedings immediately for full damages and associated legal costs caused by the unauthorised reproduction by you of Royal Opera House property”.

On Thursday the blogger said he would be happy to make any changes appropriate but also highlighted the fact that the website makes no financial gain from the 100,000 visits it receives a month but does promote the ROH.

The Royal Opera House has every right to protect intellectual property – assuming the pictures are their property,  but it does seem to be a remarkably heavy handed way to go about it.  Did Intermezzo commit such a cardinal crime using an official photograph – if he/she did?   I’d be only too delighted if a blogger used my ‘official photos’ to help promote what I was doing if I was running a large commercial operation.

The comments to the article are excellent… including one from fellow blogger Matthew Taylor… do read.

This… I liked…

John Drake | 10-Sep-2010 2:18 pm

Just one point, I believe the Intermezzo blogger is female.
On the main point, however, Intermezzo is an incredibly well-thought of blog in the Opera field. Because of its work (and the bewilderingly over-designed nature of the ROH’s official site), the ROH will have sold a lot of tickets. This is stupid beyond the stupidity of normal in-house lawyers.

In the meantime, I am listening to a bit of Tosca and waiting for the good bit… I may be instructing external consuls to make me some breakfast as well.

***

UPDATE

Thanks to MTPT for this…. extracted from the comments sectio0n below…

MTPT

Oh, and here’s the link to Intermezzo’s original post:

http://intermezzo.typepad.com/intermezzo/2010/09/without-prejudice-why-all-the-royal-opera-house-posts-have-disappeared.html

The comments are well worth a look: lots of subscription paying “Friends” of the Royal Opera House who are not best pleased by ROH’s behaviour.

THE COMMUNICATIONS FROM THE ROYAL OPERA HOURS TO INTERMEZZO….. CLASSIC

Do have a look if you fancy a tutorial in how NOT to engage as a lawyer with bloggers who are enthusiasts and only trying to help.

Law Review: Fear and loathing in Las Parliament

I’ve held back from commenting on Metgate in any detail – partly because other bloggers, notably Jack of Kent, are doing it well and in measured detail, and partly because I want to see if this campaign actually goes anywhere and new evidence comes forward.

We are beginning to get a degree of clarity on this issue – and, it seems, that parliament may be the authors of their own misfortune on this if recent stories in The Guardian are right.

While we cannot expect MPs or others holding public office to have lived ‘perfect lives’-  with no skeletons lurking in cupboards –  one would have thought that those standing for high office would have worked out that the press will look into their lives – some to make mischief, others to test the value of the thinking and work of those who seek to govern.   It is absolutely vital that we have a free press,  but many would argue that with freedom comes a responsibility not to misuse that freedom for purely vindictive sport and the pursuit of a very specific commercial and power agenda? We would be a bit naive to take  that latter point?

The story in The Guardian yesterday is interesting and extraordinary…

MPs backed down from calling Rebekah Brooks to Commons

Guardian: Cross-party committee allegedly abandoned plans to force News International chief to testify after being warned their lives would be investigated

A cross-party committee of MPs abandoned plans to force the News International chief executive, Rebekah Brooks, to testify last year after they were warned that their private lives would be investigated, a former member alleged last night.

Adam Price, a former Plaid Cymru MP, told Channel 4 News that a group of committee members shied away from the “nuclear option” of issuing a warrant for Brooks to attend after a senior Tory warned that News International would “go for us”……

The allegation that News International attempted to interfere with the work of parliament came after Tom Watson, a Labour member of the committee, disclosed to MPs on Thursday that Brooks repeatedly refused to attend its hearings….

Watson added that he was told that Brooks vowed to destroy him after he led the Labour coup that persuaded Tony Blair to resign. “A very senior News International journalist told me at the Labour party conference in 2006, in the early hours of the morning, that his editor would never forgive me for resigning as a minister in Tony Blair’s government and that she would pursue me for the rest of my political career until I was destroyed.”

Is this how we want our country governed – where MPs operate in a state of fear and loathing?  Where MPs back down?  I’m not at all sure we do – but, there again, we are not in the firing line of retribution and the sword of truth.  It looks as if we are getting closer to the denouement where there will either be evidence or there won’t be.

Rive Gauche: Drumming gorilla outed – female orgasm would kill a man – Mr Credulous…and a few other matters.

Been a few weeks since I did my weekly Rive Gauche post…. so what better way to return than  by announcing that Ed Balls MP was the guy in the gorilla suit….. this YouTube video provides so much EVIDENCE that skeptics  are having orgasms which could put their lives in danger….

and talking of which….. journalist @Suzannemoore197 – an excellent tweeter –  was able to inform her followers that female orgasms, being ten times stronger than male orgasms would actually kill a man’s brain!

Perhaps it is just me…. recovering from a routine check up and a head cold… but aren’t Justice Ministers – even Coalition ones – supposed to behave with a modicum of common sense…?  Consider his position?  I should coco…

Jonathan Djanogly ‘should consider his position’ over use of private detectives

Telegraph: Jonathan Djanogly has been advised to “consider his position as justice minister” by a former Conservative council leader at his constituency.

The Telegraph reports… “The Daily Telegraph has disclosed that Djanogly hired a firm of private detectives to conduct an undercover investigation into his aides and colleagues.

Derek Holley, former Conservative leader of Huntingdon council, said he was angry to learn that he was among those investigated.

He told the Today programme on Radio 4: “I have been in local politics and associated with national politics for 34 years and I have never experienced anything like this.”

I can recommend a quick trip over to Mr Credulous… it won’t take you long

Kennedys in ill-judged ambulance chasing email shocker.

RollonFriday has the story… “Kennedys’ Senior Partner has sent out an email commiserating with clients in New Zealand who may have been affected by the recent earthquake – whilst simultaneously touting for business.”

Read…

Another great story from RollonFriday…

Lewis Silkin bans students from discussing their interviews online – they are using a confidentiality agreement, which is understandable to protect the integrity of the process.  RollonFriday pressed for details… this is the bit of the story that I liked…. I quote from RollonFriday’s report:  Fluet said that there was a carve out which allows students to talk to their friends and family, so it’s not clear whether chatting to mates down the pub would amount to a breach of contract. But when RollOnFriday pressed for further details he said that he wasn’t “spending another chargeable minute on this” and “listen to my voice – this is terminal boredom“. What a charming man.” Read

I do have some sympathy with Mr Fluet! As I mature into a fully paid up member of the grumpy old gits association – aspiring to FELLOWSHIP of same, I can identify with this response!

And finally… in the great Wayne Rooney fiasco…. Alex Ferguson says he won’t wade in with this classic as reported in The Sun today…

Alex Ferguson says…”Let’s put it to bed straightaway. I am not discussing any of my players’ personal lives.” – put it to bed? Ha!

And finally… following up my vaguely sensible post earlier on Metgate (below or infra as we lawyers used to like to say…)…

Well… that should give you a quick briefing on things of great importance on a Friday… enjoy the weekend.

Law Review: Guardian Law – Red top assassins – Blair and freedom of speech

Breaking news for lawyers – the internet has arrived!

Guardian: The Attorney General had a surprise at the official launch of Guardian Law

The decision by The Times to drop off the face of the legal net (Yes, I am sure a few are paying to read it online) by disappearing behind a paywall  must have assisted Guardian Law in their new endeavour.  I like the format and I like the style.  The content is developing and a couple of my friends have been contributing – Carl Gardner who writes the Head of Legal blog and BabyBarista.

Guardian Law is definitely one for student, lawyer, academic and member of the public to follow.  Afua  Hirsch seems to have a wise  head and keen eye and brain on young shoulders, if I may say so – good stuff. She does the Guardian Law Afua Hirsch blog as well!

Metgate grinds on…..

Phone hacking: MPs ‘were too scared to testify in court’ says MP

Guardian: Simon Hughes, who gave evidence against a NoW journalist after his phone was hacked said others were afraid to join him.

Astonishing really… but Tom Watson MP was certainly happy to get up on his feet, albeit using the protection of Parliamentary privilege, to talk of red topped assassins yesterday in a good speech.  Whether anything will actually come of this remains to be seen – but if the *evidence* points that way, we will know for sure.  The key is to get the evidence – so the campaign has been worthwhile in shaking the tree. Forgive me if I continue to take the well worn path of assuming innocence until guilt is proven – a very different matter from innocence or  my own personal thoughts on the matter.

//

Commons declares war on ‘media barons and their red-topped assassins’

Independent: New parliamentary inquiry will have the power to force senior newspaper executives to give evidence

Tom Watson MP Speech….

“Referring to News International Chief Executive Rebekah Brooks, Mr Watson told the Commons: “The truth is that we all of us in this House in our own way are scared of the Rebekah Brooks of this world.

“If you fear passing this resolution, think of this; it’s almost laughable. Here we sit in parliament, the central institution of our sacred democracy, between us, some of the most powerful people in the land, and we are scared of the powers she wields without a jot of responsibility or accountability.

“They, the barons of the media, with their red-topped assassins, are the biggest beasts in the modern jungle.

“They have no predators. They are untouchable. They laugh at the law. They sneer at parliament. They have the power to hurt us, and they do, with gusto and precision, with joy and criminality.

“Prime Ministers [cower] before them. And that is how they like it. That, indeed, has become how they insist upon it.

“And we are powerless in the face of them. And we are afraid. And if we oppose this resolution, it is our shame.

“That is the tawdry secret that dare not speak its name…..”

Kay Burley accused of being ‘a bit dim’ by Labour MP Chris Bryant

Guardian: Sky News presenter has on-air spat with MP during interview about News of the World phone-hacking story.

Burley was interviewing Labour MP Chris Bryant about the Commons debate on the News of the World phone-hacking story. When Burley challenged Bryant to provide evidence for his claim that phone hacking and other illegal techniques were “endemic” in the newspaper industry in the past, he cited a report by the Information Commissioner that identified more than 1,000 cases.

Burley said: “So you are in a position to have listened to the debate and read the report and as a result you are content to say that on telly.”

Bryant replied: “I have just said that. You seem to be a bit dim, if you don’t mind me saying so.”

I quite enjoyed this.  I rarely watch Sky –  not out of some bizarre anti-Murdoch protest – but simply, try as I might, I can’t actually find a single thing, news or otherwise, that I actually want to watch apart from Cricket and I decline to pay to watch when BBC commentary does the job just fine.   Good to see a politician not putting up with nonsense from TV people – some of whom appear to think they are more important than the people they are interviewing.

For Tony Blair and free speech

Lawyer and Jack of Kent blogger, David Allen Green writes a short article in The New Statesman asking “Are we censoring a retired politician?” Blair has cancelled a number of events recently – to what appears to be the delight of some Libertarians and others who might, otherwise, be expected to be the first to storm the barricades from the comfort of their Parker Knoll chairs and complain about erosion of their free speech.  Tom Harris MP tweeted the other day expressing the hope that Blair would not cancel events due to ‘thuggery’.  Blair cancelled the events – explaining, not unreasonably, that he did not want to put additional burdens on Police and the like.  It may also be that he recognises that sentiment is not with him on the Iraq war and does not wish to fan the flames further.  It may be that book sales are going so well that he doesn’t need to. Kerching! – for the British Legion…so that is just fine by me.  I am enjoying his book.
David Allen Green makes a rather good point when he says this… “The defence of free expression is often most important when the beneficiary is unpopular.” On this issue, emotions run high and the rights of those who wish to express dissent our outrage at Blair, in a peaceful way, have as much right to do so as Blair does to promote his views.  Both are now denied such an opportunity face to face.  The comments in The New Statesman article are revealing – and some, understandable. The principle of freedom of speech is a good one.  The reality may not always be quite so ‘convenient’.  We should promote the former and guard against development of the latter.

I agree with Green – freedom of speech is all. Unfortunately, unlike America, we don’t have a First Amendment – so if any Pastors over here developed a taste for Koran burning – they would simply be banned and, possibly, locked up. That is the British way with dissent and ‘difficult’ issues. Freedom of speech?  You’re having a larf…… doesn’t exist in Britain – there are pragmatic and, sometimes, politically convenient limits.  Superinjunctions, libel laws, privacy laws and good old fashioned funk at what a journalist can find lurking in a cupboard to dissuade MPs (and others), according to the news story above,  ensure that freedom of speech is very much controlled by those with the money and influence to do so.

***

UPDATE

Some EVIDENCE some may prefer not to see or even look at?

from Guido Fawkes….

Take a Look in the Mirror

While the Mirror and the Guardian try desperately to breathe air into the phone hacking scandal, lets take a look at why it isn’t really about evil Murdoch and his newspapers. A little evidence based research, with the help of the Information Commissioner’s Office, shows how all the papers were up to dirty tricks and “blagging” – pretending to be someone you are not in order to gain the information you are not entitled to. Who do you think had the most recorded offences?…..

Go on… it will do you good 🙂

Charon in TOP 2 of TOTALLY PISSED Blog Awards 2010 – Astonishing

I am very pleased to announce that I have awarded myself an award (another one). Modesty forbids me from saying that I won – hence…TOP 2

With all these total politics blog awards being handed out to polbloggers… although I understand they do have a voting system – I can hold my head up high… when I sober up 🙂

My apologies to Iain Dale and all polbloggers… I do enjoy your blogs 🙂

Why do Polbloggers and others need badges and puffery? – Just askin…..blah blah

2 Corinthians 11:30
If I must boast, I will boast of the things that show my weakness.

***

And on a positive note… I am more than happy to see Barristers abseiling… and doing good… these are from Exchange Chambers!

Would you like to donate to this or publicise it?

Mandy Yip, Rob Dudley and Alison Graham-Wells thank you for coming to their fundraising page.

The three of us have agreed (somehow!) to climb over the edge of the 164ft tall Mersey Tunnel ventilation shaft and abseil down on 26th September 2010.

We are all trying to raise money for the Bar Pro Bono Unit

[I’ve done some abseiling – not easy!]

Law Review: Church law allows priests to abuse children and why News Corp may be ‘freaking out’

A couple of law stories – with no comment – simply because I have just read them and found them interesting.

Canon law has allowed abuse priests to escape punishment, says lawyer

The Guardian: Geoffrey Robertson QC calls for end of church law and chides UK government for recognising Vatican’s sovereignty

The system of law operated by the Vatican has allowed serious sex offenders to escape punishment and must be abandoned, says a prominent lawyer.

According to Geoffrey Robertson QC, whose book The Case of the Pope is published tomorrow: “Canon law has been allowed to trump criminal law in countries throughout the world. This is a very serious matter‚ the pope through his pretensions to statehood refuses to acknowledge that child sex abuse is a serious crime as well as a sin.

“The Catholic church must abandon canon law as a punishment for priests who commit crimes.”

The church’s form of law, Robertson argues, “has no public hearings, no DNA test facilities, no enforcement mechanism, and the most severe punishments – excommunication or an order to return to the laity (without entry on a sex offenders’ register) – bears no comparison with the sentences of imprisonment or community service that can be expected under criminal law.”

News Corp. Is Freaking Out

Michael Wolff: “You don’t get it,” a member of News Corporation’s inner circle in London told me last night, about the phone hacking scandal. “If there was a conspiracy in the company, the conspiracy was to keep Rupert from knowing.”

That is called the circle-the-wagons defense. That’s called everybody-else-is-expendable. That’s called a total freak-out.

The company has been caught as unaware, as unprepared, as incapable of responding, as on the ropes, as it ever has in its 60-year history. News Corp. only knows how to be the aggressor; now it’s on the defensive—and it has to defend itself against the very thing that it has always been, that has always protected it, that is the reason for its fundamental pride: Its newsrooms are down and dirty.

Scottish Guest Law Review: A Matter of Independence

I am delighted to host two very thoughtful blog posts from Scots lawyers on the issue of Independence for Scotland. I have, with their permission, taken their published posts from their blogs and hosted them here.  Given the fact that we are, for the present, a United Kingdom, I thought these would be thought provoking.  Love and Garbage and Lallands Peat Worrier are serious law bloggers who, it has to be said, also enjoy twitter – which is how and why I ‘met’ them.

First from Love and Garbage

Conjuring tricks, legislative competence, and referenda

As a child I was taken to a magic show, where the conjurer practised close-up magic. He’d wave the cards in front of you, and wonder of wonders you’d miss the sleight of hand. Until he tried it with a small boy who saw that the conjurer held two cards together pretending they were one.

What does that have to do with politics, though?

Well, a little while ago I noted how ignorant certain journalists were on matters relating to human rights – meaning that the incoherent Conservative policy escaped scrutiny during the election campaign. Scottish journalists are not exempt from similar criticisms. Too often the framework within which the Scottish Parliament operates is ignored when the political dimension of the Parliament is considered. The ignoral is a mistake. Smoke, mirrors, bluster, and crashes and bangs are classic distraction techniques – designed to draw attention away from the real position. Journalists and those scrutising our politicians should try not to be distracted.

The Scottish Parliament was not born free. It is a statutory creation, its powers circumscribed by the legislation establishing it. The Parliament, and the Scottish government (the executive within the terms of the Scotland Act 1998) can only act in accordance with the powers conferred upon it by the Scotland Act 1998. This was apparent before the Parliament was established. The restriction confirmed by the courts in Whaley v Lord Watson 2000 (later confirmed by the House of lords).

But the restrictions on the Parliament are sometimes forgotten (caught up sometimes in confusion between and conflation of the Westminster and Holyrood legislatures – Westminster notionally being the beneficiary of a doctrine of parliamentary supremacy (an English concept the Scottish courts reject as an absolute). And this means that pledges and promises made by Scottish parties in Scottish campaigns are therefore questioned only on a political basis without adequate scrutiny of whether a proposal can actually be implemented.

Consider for example a saga that began 3 years ago. In August 2007 the Scottish government issued the white paper that formed the centrepiece of the “national conversation”. This white paper proposed the holding of a referendum on scottish independence and included a draft bill to that effect. The period since then has seen much consultation, more detailed bills (pursuing the same central objective) – but the legislation has not been forthcoming.

Three years ago I suggested that legally (within the context of the Scottish parliament) the national conversation was hanging on a shoogly peg. I noted the following,

“ The powers of the Executive and Scottish Parliament are determined by the Scotland ACt 1998.  This ACt provides that any bill which is put forward must be compliant with the scheme of devolution.  If a bill is not on a devolved topic then it cannot enter the Parliament, never mind be passed.  The 1998 Act provides that this is considered at at least two stages – first, the Presiding officer can prevent the bill entering the Parliament at all (a rule already exercised – probably inaccurately – when a bill which attempted to prevent the right of appeal to the House of Lords in civil court cases was rejected); second, the Advocate General (a UK government law officer) can – if a bill is passed by the Parliament – judicially challenge it before royal assent is given.”

And suggested that,

“The presiding officer is unlikely to give approval to the bill (given the precedent of rejecting a previous bill deemed to have constitutional import). ”

I suggested that the white paper engaged in elaborate sophistry as the legal problems inherent in the constitutional settlement were ignored, or downplayed with qualifying words.

While there has been toing and froing on the referendum I have been waiting for the inevitable. My view was that no bill would be introduced into the Parliament because a bill on the topic cannot fall within the legislative competence of the Scottish parliament. I expressed this view in blog comments in various places on the net (eg here). Imagine my astonishment yesterday then when the Sunday herald broke an exclusive story indicating that the referendum was being shelved.

The Sunday Herald report is an interesting one. It focuses on the fact that Mr Salmond believes that the bill will be voted down and therefore the bill will not be introduced. That political angle is the one that has been followed up in the reports yesterday and today (BBC, Brian Taylor, Scotsman). And it is the political element that has been followed up by bloggers (including the team at the excellent new Better Nation blog, Joan McAlpine, Colin Fox, and burdzeyeview,)

However, hidden away in paragraphs 14 and 15 of the Herald report is the news that most lawyers interested in the area expected to see:

“SNP sources also said the First Minister revealed there were legal problems surrounding the wording of the referendum question.

This related to talks between the Government and the Parliament’s Presiding Officer, who has to rule whether a Bill falls within the powers of Holyrood.”

This is no surprise, but will form the focus of this post as it has been ignored elsewhere.

During a previous session of the Scottish Parliament SNP MSP Bryan Adam proposed a Civil Appeals (Scotland) Bill which would have abolished the right of appeal from Inner House of the Court of Session to the House of Lords. The presiding officer (on his legal advice) ruled the bill fell outwith the competence of the Parliament. The justification was that the bill would have had an impact on the general constitutional reservation found in Schedule 5 to the Scotland Act 1998. If something which proposed to regulate an aspect of the legal system (against the context of the general devolution of matters relating to the courts, court procedure, and private law) is outwith the competence of the Parliament – then a bill which is about entering negotiations for the establishment an independent nation with its own legal system and legislature (or the break up of the United Kingdom, depending on your political preference) seems bound to have an impact on the United Kingdom Parliament (one of the matters on which legislation is expressly reserved to Westminster and on which the Scottish Parliament has no competence) and accordingly it would seem likely to be ruled by the presiding officer’s legal advisers as falling outwith the legislative competence of Holyrood.

I think that establishing that a bill on a purely constitutional matter falls within the legislative competence of the Scottish Parliament will be a difficult task. Schedule 5 of the Scotland Act seems pretty clear.

However, I was somewhat surprised today to read a post from the excellent Joan McAlpine that suggested that matters could be dealt with without a bill. Dr Matt Qvortrup – a senior lecturer in international relations and “ described by the BBC as the “world’s leading expert on referendums”” had written an article for the Herald during the summer. Dr Qvortrup wrote what, to a lawyer interested in the constitutional position, is a startling piece.

He opined,

“The referendum can be held after a so-called Order in Council, or by a Scottish Statutory Instrument (SSI). That is to say, the First Minister can decide to simply use his executive powers to have a consultation.”

Joan McAlpine, relying on the article, writes,

“Politically, such a move could put the Holyrood unionist opposition and the coalition Westminster government in a very tricky situation. If this consultative exercise included a devo max option alongside full independence, the outcome would certainly be a majority of Scots opting for radical change. That would put the SNP in a powerful position going into the 2011 election and, afterwards, if they formed a government. Whatever happened, the flawed Calman proposals would be holed below the water.

I am aware that this a sharp-intake-of-breath suggestion.  The opposition could sink it with a no confidence vote. Would they dare? If they did, the issues at stake would be made very clear indeed. It should at least be examined.”

Dr Qvortrup’s proposition is startling to a lawyer because it is flawed in two fundamental respects.

First, Orders in Council or statutory instruments are examples of delegated legislation. The right to grant executive orders is (as are the powers of the Scottish Parliament itself) circumscribed. There are no general rights to legislate as an executive wishes. A government minister cannot decide that I would like to pass laws which require people to do X. A power so to legislate is required. A quick look at the Scottish statutory instruments demonstrates this. Each narrates the power under which the statutory instrument is made. Delegated legislation then involves the delegation of a power to legislate to the executive and any subordinate legislation (such as an Order in Council or statutory instrument) which is laid by the Scottish government has to be laid in the exercise of a legal power delegated to the government. I can find no legal power to hold referenda delegated to Scottish ministers. None is referred to in the leading modern Scottish texts on constitutional law. Additionally, I have trawled material from pre-devolution (where certain powers delegated to ministers are now delegated to Scottish ministers); have examined material in Scottish and British writings on constitutional law to determine if there would be such a power delegated under prerorgative powers (I can find no such power); and have looked at post-devolution legislation from the Scottish Parliament and Westminster and can find no such power. If there is no such power delegated there can be no Order in Council or statutory instrument. I accept that such a trawl will not have been exhaustive. However, this leads to the second flaw in Dr Qvortrup’s position.

Delegated legislation is not automatically waved through. Just because a minister says something does not mean that it becomes the law. The procedure for consideration of delegated legislation is set out in rule 10 of the Standing orders of the Scottish Parliament. Delegated legislation either requires affirmative procedure (meaning it requires the approval of the Parliament) or if it is not subject to affirmative procedure can be annulled.

Let us assume that contrary to my researches Dr Qvortrup is right and a power to legislate to hold a referendum has been delegated to Scottish ministers. Let us assume as well that this fictitious power does not provide that any statutory instrument or Order in Council has to be approved affirmatively. Dr Qvortrup bizarrely suggests that

“In Scotland’s case, the only option open to the Opposition would be to table a motion of no confidence in the administration.”

Sadly for Dr Qvortrup this is palpable nonsense. The position is set out in rule 10.5 of the standing orders:

“1. In the case of any draft instrument laid before the Parliament where the instrument may be made without the approval of the Parliament, any member (whether or not a member of the lead committee) may, no later than 40 days after the draft instrument is laid, by motion propose to the lead committee that the committee recommend that the instrument be not made (or, in the case of a draft Order in Council, be not submitted to Her Majesty in Council).”

This is not a motion of confidence in the government (with all of the implications involved therewith). This is simply a motion to annul (or a negative resolution) which would be dealt with and may be voted on in the normal way. Any member could make such a motion – from the humblest backbencher.

The political implications of holding a referendum are also considered by Dr Qvortrup.  But until he – or one of those advocating the circumventing of Parliament by executive power – can point to a power that would entitle the Scottish government to lay delegated legislation and do this – and which would circumvent rule 10 of the standing orders, I suggest that no referendum can competently be approved by the Scottish Parliament.

The central plank of the SNP manifesto then will be a policy they cannot implement within the confines of the Parliament they are running for (although of course politically, an SNP majority vote would make any demand for such a referendum to be passed by Westminster politically impossible to resist).

Edited on 7th Sept at 4.45 pm to note the excellent response from Lallands Peat Worrier on the legality of the referendum bill. I disagree, but I think it is important that the argument is heard and engaged with by both sides. The failure of both sides to do so thus far (and journalists to scrutinise) says much about our system.

***

And.. from Lallands Peat Worrier….

Is the independence referendum legally competent?

Before the 2010 Westminster general election, I tore rather mercilessly into the legal illiteracy at the heart of Tory pre-election pledges on the Human Rights Act and the European Convention. “And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye?” asks Scottish legal blogger Love and Garbage in an important post suggesting that is the SNP’s proposed referendum on independence demonstrates our own illiterate grasp of the legal constraints of the devolution settlement. Either that or a wilful blindness which would hardly be more laudable. The public orthodoxy assumes that Holyrood is perfectly empowered to hold such a referendum. Even the opposition parties believe so. How else could Wendy Alexander have cried “bring it on”? The question then becomes a matter of pure politics, whether such a referendum should be held a question finally to be answered by the institutional majority. “Unionists have killed off the independence vote”, suggested Salmond this morning. This, argues Love and Garbage, is so much Eckly razzmatazz:

“The central plank of the SNP manifesto then will be a policy they cannot implement within the confines of the Parliament they are running for (although of course politically, an SNP majority vote would make any demand for such a referendum to be passed by Westminster politically impossible to resist).”

Why not? His starting point is the legislative instrument that is the parliament’s foundation ~ the Scotland Act 1998. As he rightly stresses, it is something that the Scottish media and the rest of us often lose sight of, but Holyrood is not an assembly at liberty to do as it pleases. The Act is structured with general and specific reservations. At the top of the general list in Schedule 5, we find the Constitution. Section 29 provides that “An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament…” and that “A provision is outside that competence so far as … (b) it relates to reserved matters…”. So, how is the phrase “relates to a reserved matter” to be construed? The Act offers this guidance:

(3) For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.
In his dissenting opinion in the recent Supreme Court case Martin v. Her Majesty’s Advocate, Scottish judge Lord Rodger pondered an obvious hypothetical example of this sort of thing ~

“For example, the subject-matter of the Carriage of Goods by Sea Act 1992 is a reserved matter: para 1 and Section E3 of Part II of Schedule 5 to the 1998 Act. Obviously, therefore, if the Scottish Parliament purported to pass a Carriage of Goods by Sea (Scotland) Act with the sole purpose of repealing the 1992 Act in Scots law, its purpose would relate to a reserved matter and so its provisions would be outside the competence of the Parliament by virtue of section 29(2)(b). In practice, such a clear example would be unlikely to get past the legal advisers to the Scottish Parliament. In real life the problem is likely to arise in more complex situations.” [Para 75]

The legality of a referendum on independence is undoubtedly one of these more complex situations. To those whose consciousness hasn’t been rearranged and distorted by a legal education, what follows will undoubtedly seem like the worst sort of quibbling for which both the lawyer and the theologian are justly despised. I ask you to bear with me. In support of his thesis, Love & Garbage mentions the abortive Civil Appeals (Scotland) Bill, which the Presiding Officer of the day,  George Reid, ruled to be outwith the competence of the Parliament on legal advice. That Bill was an affirmative legislative attempt to end the practice where Scottish civil appeals can escape from the final judgement of the Inner House of Court of Session by fleeing south to the House of Lords as was, now the United Kingdom Supreme Court. A sort of judicial repatriation, then. The Bill’s failure owed to the assessment that such a motion was beyond the competence of the parliament, under the constitutional reservations in Schedule 5 of the Scotland Act. Love and Garbage again ~

“If something which proposed to regulate an aspect of the legal system (against the context of the general devolution of matters relating to the courts, court procedure, and private law) is outwith the competence of the Parliament – then a bill which is about entering negotiations for the establishment an independent nation with its own legal system and legislature (or the break up of the United Kingdom, depending on your political preference) seems bound to have an impact on the United Kingdom Parliament (one of the matters on which legislation is expressly reserved to Westminster and on which the Scottish Parliament has no competence) and accordingly it would seem likely to be ruled by the presiding officer’s legal advisers as falling outwith the legislative competence of Holyrood.”

I propose that we can distinguish this precedent quite simply from referendum. Or at least, might be able to make a manful legal argument to that effect. Assume that George Reid was correct and that the proposed Bill was beyond Holyrood’s competence. What about a Bill attempting to have a referendum on the subject of the Civil Appeals Bill? Holyrood couldn’t delegate powers for the Scottish people to make binding resolutions in a referendum. What if the public were asked “Do you agree that the civil appeal to the House of Lords should end?” As I understand him, on Love and Garbage’s logic such a referendum is incompetently “tainted” by its reference to a clearly reserved subject. Couldn’t we think about this differently and harden this contrast between admittedly incompetent affirmative legislation and legislating to institute a referendum process for the expression of public opinion on some subject which happens to be reserved? As I understand him, Love and Garbage is entirely consistent on this level. If the proposed referendum on independence is incompetent, surely my imaginary referendum on the Civil Appeals bill would also fall to be rejected.

I’d propose an alternative interpretation (I should stress, in a spirit of advocacy rather than in any certainty that a court would uphold my argument) and submit that legislating to conduct an advisory referendum on both reserved subjects can be distinguished and need not incompetently “relate” to the constitution as a reserved matter. All of this hinges on whether conducting a referendum on a reserved matter of itself “relates” to a reserved matter under section 29 of the Scotland Act. “Relation” is obviously not being used here in its common-sense definition of any tenuous connection. The Act suggests that we attend to (a) the purpose and (b) the effect of the legislation. So what is the essential purpose of a referendum on independence? As Lord Rodger noted:

“Sometimes, of course, the purpose of a provision may be obscure. And, even when it is not obscure, people may describe the purpose in slightly different ways” [Para 113]

This seems to me to be at the heart of the argument. How should the essential purpose of the referendum be described? On one level, we might say that its primary purpose is to canvass the opinions of the Scottish people. In law, it would have no binding effect. No legislative modifications would necessarily follow. Indeed, its lawful effect would simply be to set in motion a consultative process. Ascertaining the opinion of the Scottish people on a particular question is not a reserved matter. L&G would no doubt contend that this is a rather artificial analysis and that effect should be given a more expansive definition. Moreover, it is no secret what the general purpose of the SNP is in bringing such a referendum forward. He might be right in both respects. However, such arguments emphasise an important point. Whatever one’s immediate view of the merits of either contention, it seems fair to say that the authoritative judicial definition of “relation to a reserved matter” remains opaque. Alan Trench, a far more dexterous public lawyer than I am, has recently composed this worthwhile piece on the wobbly line drawn between devolved and non-devolved powers of the parliament. My point is that the competence and legality of any referendum is at least arguable, if one begins to accept the separability thesis I outline above. That said, Love and Garbage is quite right to emphasise that blithely assuming Holyrood can competently legislate for a referendum is problematic. I have no insight into the SNP’s legal advice or their legal thinking. However, I suspect that this analysis might also go some way to explaining the reported difficulties which were experienced in composing suitable wording.

So here we have a political problem. There seem to me to be clear and reasonable dubieties about the legality of such a referendum. In reality, these are unlikely to be resolved any time soon. However, assume for the sake of argument that a court uphold’s Love & Garbage’s analysis and repels my own submissions. What the devil is the SNP to do? On one level, emphasising gaps between public expectations of devolution and its lawful reality makes the nationalist case. On another, the revelation that such a referendum is beyond Holyrood’s competence to command – and it has taken this long for such fact to surface – assails the integrity and competence of the party which proposed it. Surely you could have – should have – known, the press might well ask. It is also worth bearing in mind that public attitudes towards legal certainty may not be kind to the SNP in such circumstances. If you assume the law is a great book of obvious rules and strictures, a failure to notice legal impediments on such an important subject seems astonishing, despite the fact that nobody else seems to have noticed them either. Moreover, I shouldn’t like to play the seer if a challenge to a proposed referendum is eventually the test case which goes some way to clarify the relationship between reserved issues and devolved powers. That would be a case with astonishing political ramifications which would undoubtedly weigh with any court which heard argument on the subject. Indeed, it is hard to conceive of any other political issue in devolution which could prompt more controversy.

Law Review: Scrambled Clegg for breakfast?

Fixed-term parliaments open to legal challenge, clerk of Commons warns

Guardian: Malcolm Jack says legislation could mean courts would ‘be drawn into matters of acute political controversy such as whether an election should be held’

This could be a bit of a problem?

I do like twitter – this from a friend….

Funnily enough.. the Scots have a possible problem with an  independence referendum… as a guest post soon will reveal….


Muttley Dastardly LLP Episode 2: Procureco Wars

PODCAST EPISODE 2: MUTTLEY DASTARDLY LLP – PROCURECO WARS

MEMORANDUM

To: The Partners

From: Matt Muttley, Managing Partner

RE: PROCURECO WARS

Gentlemen, I write from our Caribbean island with news of an opportunity which I think we should give some attention to.  As you know, it is 24/7/365 at M&D LLP.  I have a lunch engagement, so I shall be brief.

1.  Barristers’ chambers could provide a ‘lifeline’ to small criminal law firms, Bar Council chairman Nick Green QC has told the Gazette

2. I quote from the Gazette: “Green said that when the Legal Services Commission next tenders for criminal contracts, likely to be next year, he expects to see barristers’ chambers putting in bids for work using the model procurement company devised by the Bar Council, known as the ProcureCo.”

3.  I rather like this bizarre word ‘procureco’ – pregnant with all manner of meanings, some possibly  sinister.  The idea is that Barrister chambers will rush into the market to mop up criminal work and provide a full service  through a Procureco bolted on like a shed to the side of their practice – as is required under The Dragon’s Den rules – sorry, that should be, under LSA rules. This means that in addition to providing advocacy services which they can, clearly, provide, they will have to provide all the back up services as well currently being done by solicitors.  This means they will have to do deals with solicitors and the minutiae of commerce – a prospect some at the Bar may not enjoy, or even, in the case of some of m’learned friends, positively recoil in horror from.

4. Unfortunately for Mr Green and his vision of a land of milk and procurecos – there is a rather large fly in the ointment.  The fly is the plan by solicitors to blacklist any set of chambers setting up a procureco and bidding against them for work – resulting in those same barristers not being instructed by the firm or firms doing the black listing.

5.  I would like to propose two alternate plans:

Plan A would involve encouraging as many sets of chambers in this field as possible to set up Procurecos, encourage – through twitter and articles strategically placed in law publications – solicitors firms to blacklist them – and set up our own Criminal Division to deal with criminal work and use the barristers who can’t get instructions from other criminal firms because they have been blacklisted.  This should result in some satisfactory fee discussions with the clerks.

Plan B is that we buy a range of small criminal law firms – or enter into ‘affiliation’ arrangements with them providing our infrastructure and ‘ethos’ rather along the lines of claim farms in personal injury –  and use the combined muscle of collaboration to create a large (and, ultimately, monolithic criminal law firm) and exercise a very real influence and control in and of the market.  The latter plan is, of course, more expensive and for the longer term.

6.  I end with a few choice points in the Comments section of  Catherine Baksi’s excellent article for your perusal, delectation and delight:

Submitted by Anonymous on Mon, 06/09/2010 – 13:07.

Can the Bar not see that by entering into direct competition with solicitors they will potentially reduce those who will instruct them…….. If the bar secure a contract in one area, they will get at most an eighth or a tenth of the work in that area, based on the reduced number of suppliers suggested by the MOJ. That means that the rest of the work in the area is undertaken by people they are now competing with. That could seriously limit the work they have coming in.

They need to think this through again.

Collaboration between specialist criminal legal practices

Submitted by Allan Carton on Mon, 06/09/2010 – 13:40.

Solicitors should be taking the lead here.

Gentlemen – please note that Allan Carton seems to favour our Plan B option.

And, finally – I rather liked this comment:

Submitted by Pete Balchin on Mon, 06/09/2010 – 21:41.
Ah, luverly…. We now start to see the real results of ‘franchising’ unravelling…

***

PODCAST EPISODE 2: MUTTLEY DASTARDLY LLP – PROCURECO WARS

With thanks to Inksters Solicitors, Cellmark, OnlineWill.co.uk, BPP University College, David Phillips & Partners Solicitors, Wildy & Sons, Camps Solicitors accident claims

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We are the wills and probate dispute specialists.

This… I did like!

I do seem to have unusual hours – getting up at 3.45 am  to ensure that The Grim Reaper does not get me  – A lot of people die at 4.00 am according to statistics from HM Treasury and NHSDirect ( – but probably not enough to help the Coalition government and Chris Grayling et al  with the deficit and looming pensions problem)

Because I am not trying to pimp a law practice or a business and I no longer care that much about anything  – but still enjoy law, art, wine, drinking, the human condition  and business and life in our increasingly strange country – I shall continue to enjoy observing and commenting.  I shall leave *pronouncing* to others

That is all.

Law Review: Met Gate / Hackgate – whatever you call it – The Coulson story isn’t going to go away…..

I’ve been following what is called #Metgate and #Hackgate on Twitter and in The Guardian / The Observer. I’ve kept out of the analysis – partly because of The Guardian and  David Allen Green’s (Formerly Jack of Kent) sharply observed writing on the matter – and partly because I don’t know enough about it yet  and I am quite happy to wait for the *Evidence* –  that hoary old chestnut which underpins our ‘rule of law’.

[Scotland Yard is examining new information according to the latest reports]

***

A bit of SPIN Drying for you – I don’t suppose that anti Murdoch feeling (Wall Street Journal v New York Times and The Times / Sky et al versus The Guardian has anything whatsoever to do with the prominence of this story – how would I know?  Not for me to even think about it….. ha!  And let us not even think about the political point scoring on this… see Guido below

***

The Jack of Kent / David Allen Green posts on this topic are here… I’ve listed them with the most recent at the top – very comprehensive and well worth a read if you wish to look at this topic in more detail

This article from Obsolete is worth a read….
Let’s go round again.

***

The Independent…

Steve Richards: Questions that Coulson must answer

The Independent: A new police investigation into alleged phone-hacking might clear all those said to be involved. But it is urgently necessary nonetheless

And… of course… Guido Fawkes has a few observations on the matter…

Coulson’s Guilt

The problem for Labour is how little they cared when they were in power. Why only in opposition has Alan Johnson finally decided to make some noise? He had far more power when he was Home Secretary……

Ron Coleman, a trademark lawyer in New York… does the business with this excellent Blawg Review

Rosh Hashanah, the beginning of the Jewish New Year, begins this Wednesday night.  And what could be a more appropriate occasion for Blawg Review—for us to pass judgment on a world of law blogging about law, justice and perhaps even mercy—than the Day of Judgment?  Lest anyone think that Rosh Hashanah is of mere sectarian interest, let such error cease.  For Rosh Hashanah is the Day of Judgment for all of humanity—even lawyers. Even judges.  Even blawgers!

Read

Blawg Review #280

I read a lot of Blawg Reviews (well all of them for three years)  – this is a very good one.

Law Review: Stench from blogosphere and Tips on Becoming a More Effective Legal Writer ?

I had an amusing weekend – and on Sunday a very enjoyable long lunch with @BabyBarista and @Oedipus_lex (Twitter monikers)  – with an old friend, Johnny Biltong,  arriving later.  This made it impossible for me to do my usual weekend Postcard from The Staterooms. Be that as it may…  my attention a few moments ago was taken up with two pieces of  writing raising law issues.

Yasmin Alibhai-Brown: The stench from the blogosphere

Independent: Think of them as the worst end of the press, disreputable and increasingly intrusive, and all in the name of what, exactly

and then…this…..from US law website Law.com

Tips on becoming a More Effective legal Writer

Tips on Becoming a More Effective Legal Writer  ?

Lawyers are famous for redundant writing and using long words where shorter words would suffice. In today’s practice, the written word is a lawyer’s prime currency. For the firm, its written work is its face to the world, and its reputation could hang on a phrase in any brief, memo or even e-mail. Thus, there can only be one answer to the question, “does good lawyering require good writing?” — a definitive and emphatic, “yes!”

The problem with lawyers writing, in a professional context, in a clear and concise fashion is that it could give some people the idea that lawyering is fairly easy – and that would not be a good thing in these dark and difficult times.  Mystery is all… The Royal Family knew this – unfortunately several members of the Royal Family appear to have run amok over the last forty years and the rest is history.

I particularly enjoyed this…from the same article.  I’m just glad that I was told the meaning of ‘elucidate’ some years ago …and I did like ’emblematic of the legal profession’. I shall lose no time at all in shoehorning that phrase into a conversation in a bar near me, soon.

CLEAR AND CRISP THINKING

Good writing is a reflection of clear thinking, and it elucidates its conclusion with clear statements in logical progression. Good legal writing uses the simplest possible language and does not hide behind acronyms. That does not mean that all sentences have to be short, simple declaratory affairs — often, that is not possible. However, sharp, crisp writing can often convey complex ideas in an orderly and straightforward way, avoiding the rambling sentences that resemble paragraphs so emblematic of the legal profession.

Too many professionals use convoluted language to make their thoughts seem more impressive. As a result, lawyers believe they need unnecessary redundancies in order to make their writing “sound” legalistic. Don’t believe it. While flowery language might impress a client here and there, it will alienate, not impress, your most important and educated readers.

The first person to tell me in the comments section what *unnecessary redundancies* are… will get a round of applause from me!

While I admire *skeptics* I am NOT one…. I have found that *skepticism* can be a tool for kicking other people’s ideas without coming up with ideas… I would rather encourage debate… enjoy a wide range of perceptions and accept that some people are not persuaded by debate and discussion… and then go on twitter to see what the next bandwagon is 🙂

Hence my tweet earlier….

Nor…  @Humphreycushion….am I a *septic* – I accept that I can be *peptic*. 🙂

But the good news is that Liberals / Lib-Dems are measured… nice people and not buffoons… I never thought they were!


You Coulson’t make it up #Metgate #Hackgate

You may want to listen to the covert recordings… with Lionel Ritchie playing the part of a phone caller…hacking away on an old theme…

I’m sorry that there is no guest appearance from The Pakistan High Commissioner in the film or , indeed, any cricketers….On #Metgate #Hackgate –  it seems, with the NOTW covering 18 pages of their paper tomorrow on corruption in cricket,  they Coulson’t fit any other types of corruption in!

We shall find out when the papers hit the shops tomorrow!


And… you really should look at this post by leading Tory blogger  Iain Dale for balance.

Coulson’s Accusers Can Go to Hell

“Andy Coulson is bloody good at his job. That’s why the likes of The Guardian, Alastair Campbell, Prescott and Johnson are doing their best to jump on the back of the New York Times story about an ex News of the World journalist who was sacked by the paper for persistent drug and alcohol problems. You don’t think he might have a grudge, do you?

They all want Coulson’s scalp. Well, sod ’em.

Well… there we are… life in Britain goes on despite the credit crunch… etc etc etc….. and, in time, we shall see who is right… The Tories or the Wicked Witches from Narnia on the Left …who have been sitting in a cupboard for well over 100 days trying to elect a new leader….

In the interests of a rounded view – it is only right that I draw your attention to some world class thinking from…. Dizzy Thinks … or thinks he thinks?

Andy Coulson ‘lied’ over News of the World phone-hacking – reporter

• Pressure mounts as No 10 spin doctor’s ex-colleague speaks
• Tessa Jowell says phone was hacked 28 times
• Prominent figures to sue Met for lack of warning

Guardian

John Prescott furious over unrevealed link to phone-hacking scandal

Guardian: Documents held by Metropolitan police suggest News of the World targeted former deputy prime minister

Channel 4 maintained earlier on twitter through Krishna Guru-Murthy that they were not running with this Prezza story because he was dealing with a Sunday newspaper…..  Who would have thought that such a thing was possible?

And… it will be interesting to see if… following  the endeavours of those who pushed this story (famous bloggers / politicians et al) …. to see if there is any *Evidence*….. Evidence is quite useful to the rule of law… and if there is… we should see it and act upon it…. if there isn’t.. well…. I leave you to draw your own conclusions on those who have pushed it / not pushed it

I don’t know… not being privy to these things…..

And… I suppose that we shouldn’t leave out the latest from the Labour Leadership election. Ed Balls… is, ineluctably, getting up David Miliband’s nose…. OK… I’ll get my coat…

Hat Tip @Noeticat on twitter for the pic

It may also assist if you have a kneejerking problem that you look at a medical bulletin issued by my cousin Charon MD only this evening.

Guest Post from Charon MD on ‘Kneejerkitis’ – a Twitter phenomenon

Striking the brain of a twitter user with a blog post or a newspaper article or tweet  just below the cerebral cortex can stretch the mind of some bloggers/tweeters  beyond credulity. This stimulates an immediate desire to post a blog post that triggers an afferent impulse in a sensory nerve fiber of the femoral nerve leading to the lumbar region (L4) of the spinal cord of both the writer of the blog post and sundry readers of the tweets. Then (I’m afraid), the sensory neuron synapses directly with a motor neuron that conducts an efferent impulse to the quadriceps femoris muscle, triggering contraction. This contraction, coordinated with the relaxation of the antagonistic flexor hamstring muscle causes the leg to kick and all sorts of bollocks to be written on blog and on twitter.  The good news is….. that  this reflex helps maintain posture and balance, allowing one to walk without consciously thinking about each step or, indeed, anything sensible.

Charon MD

(After Wikipedia – to whom I apologise)

Michael Gove in ‘Chaotic Shambles’ Shock…..

Michael Gove dealt fresh blow as only 20 ‘free schools’ approved

Guardian Exclusive: Education secretary had claimed that more than 700 ‘free schools’ could be established due to high demand

Being fair – I am a bit surprised. Gove seemed very sensible on Newsnight before the election – quite credible in a fantastically irritating way (until one compared him to Toby Young on the subject of education who is World Class when it comes to ‘opining’ on television).  This, after his recent humble reprise of Uriah Heap in The Commons –  but weeks after the Coalition Forces took power – is not that helpful to his future.  Laws – GONE.  Hague – I hope he does not resign – Gove? –  Chopping block job? Dr Spin Dr Coulson?  Well… twitter is ablaze with it… I don’t need to comment….

A little bit of Chaucer for you… and why not..? better than X-factor

The Man of Law’s Portrait THE LAWYER
309: A sergeant of the lawe, war and wys,
310: That often hadde been at the parvys,
311: Ther was also, ful riche of excellence.
312: Discreet he was and of greet reverence —
313: He semed swich, his wordes weren so wise.
314: Justice he was ful often in assise,
315: By patente and by pleyn commissioun.
316: For his science and for his heigh renoun,
317: Of fees and robes hadde he many oon.
318: So greet a purchasour was nowher noon:
319: Al was fee symple to hym in effect;
320: His purchasyng myghte nat been infect.
321: Nowher so bisy a man as he ther nas,
322: And yet he semed bisier than he was.
323: In termes hadde he caas and doomes alle
324: That from the tyme of kyng william were falle.
325: Therto he koude endite, and make a thyng,
326: Ther koude no wight pynche at his writyng;
327: And every statut koude he pleyn by rote.
328: He rood but hoomly in a medlee cote.
329: Girt with a ceint of silk, with barres smale;
330: Of his array telle I no lenger tale.
A sergeant of the law, wary and wise,
Who’d often gone to Paul’s walk to advise,
There was also, compact of excellence.
Discreet he was, and of great reverence;
At least he seemed so, his words were so wise.
Often he sat as justice in assize,
By patent or commission from the crown;
Because of learning and his high renown,
He took large fees and many robes could own.
So great a purchaser was never known.
All was fee simple to him, in effect,
Wherefore his claims could never be suspect.
Nowhere a man so busy of his class,
And yet he seemed much busier than he was.
All cases and all judgments could he cite
That from King William’s time were apposite.
And he could draw a contract so explicit
Not any man could fault therefrom elicit;
And every statute he’d verbatim quote.
He rode but badly in a medley coat,
Belted in a silken sash, with little bars,
But of his dress no more particulars.


The White Rabbit – Ian Tomlinson and an idiot pathologist…

The White Rabbit – Ian Tomlinson and an idiot pathologist…

I have had the pleasure of several evenings chatting about various matters with The White Rabbit – author and experienced barrister. It is rare for The White Rabbit to write about the law – but when he does – it is very definitely worth a look.  In this post he reviews the tragic Ian Tomlinson case – and the lack of a prosecution.

Read here?

London parables with Charon – the wine trick….

1On the third day a dinner party  took place at Chelsea in London. Charon was there, 2and Cardinal Charoni Di Tampranillo and a few of his mates had also been invited  3When the wine was gone, Cardinal Charoni di Tempranillo  said to Charon, “There is no more wine.”

4“Cardinal, why do you involve me?” Charon replied, “My private delivery  has not yet come.”

5Cardinal Charoni said to the catering company waitress, “Do whatever he tells you.”

6Nearby stood a stone water jar, the kind used by the catering company for guests who cannot live without expensive water in bottles ,  holding from twenty to thirty gallons.[a]

7Charon said to the catering company staff, “Fill the jar with water”; so they filled it to the brim.

8Then he told them, “Now draw some out and take it to the Cardinal.”

They did so, 9and the Cardinal tasted the water that Charon had tried to turn into wine. And the Cardinal said..”LO…. it is time to phone Oddbins….. “

The Charon Delusion

First Charon made his heaven & earth 2 The earth was without form and void, and darkness was upon the face of the blogosphere; and the Spirit of Charon was moving over the face of the waters. 3 And Charon said, “Let there be a wine bar over there; and… LO….  there was … which was great, so Charon went and ordered a bottle of Rioja. 4 And Charon saw that the Rioja was good; and Charon separated the Marlboro lights from the fully leaded ones he had picked up in a Chelsea nightclub  discussing God with Steve Hawking and Dickie Dawkins before the world was created . 5 Charon called the light’s Gold, and the fully leaded he called Marlboro Red. And there was evening and there was morning, it didn’t matter to Charon – he could drink and smoke any time he liked… and it was so…… 6

Law Review: The latest stories from The Guardian

Not being lazy – These…from The Guardian….are well worth a look

Is twitter killing our law? Is blogging killing our law?

The recent, and rather absurd,  High Court case about The Stig’s identity – known to countless people and available on the net for some time –  has brought into sharp relief the issue of suppression of information, commercial interests and the controllability of the media. The High Court’s writ has only ever run in England & Wales.  Scotland has a separate legal system. The world has many legal systems.  In pre-internet days it did not matter that much – newspapers could be (and still, to some extent are) cowed into withdrawing publication of  ‘inconvenient’ information by a letter from a specialist firm of libel lawyers.

The chilling effect of a libel letter is known to many. Libel tourism, libel reform and the whole issue of a right to privacy is very much in the frame for debate and law reform.  It is widely believed that there at least three superinjunctions out there protecting the commercial interests / private lives of leading footballers granted in recent weeks / months. I don’t know.  In fact, none of us are supposed to know.  That is the point of a superinjunction.

As an aside – I don’t buy into the ludicrous claim by Harper & Collins that their victory in The Stig case is a victory for freedom of speech. My view is that it isn’t.  That case is all about commercial interests and the claim by the publishers demeans the noble ideal of  ‘freedom of speech’ when it really matters.

Guido Fawkes published information on his blog about William Hague and his SpAD (see the follow ups on his blog). This has led to a great deal of vitriol and Hague issuing an emotional statement about his private life – which, being fair, is his business and his alone.  Sundry kneejerkers got in on the act and published tablets of stone on their blogs, some even , absurdly, criticising Guido for what they had themselves, in earlier times, done!  – their motives for doing so, possibly honourable, possibly self aggrandising.  It matters not. I am getting to the point..

Today, in The Times, Frances Gibb wrote a fascinating piece entitled “Law struggles to keep up with bloggers”. I can’t give you a link – because The Times is now behind a paywall.

Frances Gibb argues…”Is the internet and its blogosphere killing our laws? When print or even broadcasting media ruled supreme, a lawyer’s writ had a powerful reach. The courts, too, could grant injunctions – binding on not just one newspaper but every media organisation.  But now the law is struggling to keep pace as stories, or just rumour, surface on the internet, with a global reach in seconds.”

Gibb notes the Hague / Myers case raised by Guido – and now countless others.

Mark Stephens, a well known media lawyer with Finers Stephens Innocent makes the point: “The internet is not a law free zone…but once material is out there, it is very difficult to put it back”.

I suspect that Mr Justice Morgan in The Stig case had this phenomenon in his mind – I will read the judgment.  I have not done so as yet.

Frances Gibb  then quoted Dan Tench, another very well known media lawyer – from London firm Olswang. Dan Tench is reported as saying

“The lack of accountability dilutes the impact of what is said.  People can’t rely on it. The traditional media is accountable to the law – and that is its strength.  What is has to sell is its authority – and that is the difference.”

Dan Tench is a very shrewd and experienced lawyer – but I am going to disagree, without being critical of him, with this proposition in three ways:

1. I am not at all sure that the supposed lack of accountability of bloggers et al dilutes the value of what they say. Bloggers (who may not be worth suing because they have no money) often have wider reach (and knowledge)  than some quality specialist newspapers and even broadsheets in the case of the leading political bloggers.  This is particularly the case for political bloggers.   They also have an audience, net savvy, who repeat the information and, thereby, dissemination is remarkably wide for big issues. I am not at all sure that people regard the writings of journalists from politically biased newspapers as any more authoritative than independent (but politically aligned) bloggers.  This may well come as a shock to traditional journalists and TV autocuties – but life in the internet age has changed influence and the dynamics of  commentary on the events of our times. The days of reading the news in a dinner jacket are long gone – thankfully. Do ‘people’ really rely on the information in newspapers and TV broadcasts these days? I’m not so sure they do to the extent that Dan Tench, impliedly, supposes.  I regard the leading political bloggers as being  better informed and capable of sharper analysis than many of the journalists writing in the newspapers.  I have also found this to be the case in the field of finance, economics and science. That, of course, is a personal view and not ‘evidence’!

2. The traditional media is accountable to law.  Unfortunately / fortunately, for bloggers and users of twitter – so are we. So that is not the forceful point it seems to be – but I will admit that a newspaper or TV station  is an easier target than a host of bloggers, libertarians, conspiracy theorists, nutters and anarchists – some of whom are very poor and neither contactable through anonymity or worth suing.

3. What it (Traditional media)  has to sell is its authority – and that is the difference. I don’t really think I need to comment on that.  You will draw your own conclusions on the reality of that statement.

Frances Gibb did note in her excellent commentary “Mr Stephens said that rather than trying to make futile attempts to control the media, the law should defer to the “innate good sense of the crowd” – in other words, people will make up their own minds about allegations on the internet.  “You can’t stop debate, he said”


And… if you really want to make a complete hash of things, involve lawyers,  and try to suppress the unsupressable just be warned about The Streisand effect. Trafigura and others have found out about that to their cost.

The genie is out of the bottle – but the law is not being killed. It will simply have to adapt to accept a reality.  I don’t, personally, think that that is such a bad thing.

As always – for I am merely a commenter not a pronouncer – your comments will be most welcome.

***

Note:  Mark Stephens and I plan to do a podcast very soon – it would seem that we have many things to discuss.  Coming soon….

Law Review: Possibly the most dull law I have ever written about – STIGMATISED

Stig court case: BBC loses battle over Ben Collins book

BBC: The Stig has never removed his helmet on the show

The BBC has lost a legal fight to stop publication of a book which reveals the identity of Top Gear’s driver The Stig.

The High Court in London refused to grant the BBC an injunction blocking the publication by HarperCollins of an autobiography of former Formula Three driver Ben Collins.

The book, called The Man In The White Suit, claims Mr Collins is the mystery driver on the BBC Two show.

1.  Who cares?

2. This is contract law (and Equity as Jack of Kent reminded me, rightly, on Twitter) not freedom of speech – so knee jerkers of the world may have to get a grip and wait for some really important issues to come up before firing off sundry and random rants on twitter etc etc about ‘our right to know’ Wikileaks, Wikifreaks, , rape allegations, conspiracy theories etc etc etc.

3. I haven’t read the contract or the judgment – and I really cannot be arsed to do so. Ipso facto (to use one of our secret legal phrases) I am not going to give an opinion, view or even random punditry on this complete waste of licence payers money.  I am fairly certain that very few people know who *Mr X*  is and I have a feeling his book will hit the remainder bin at *Pinedland*… or other ‘retail outlet near you’ …  at a hefty discount of 50% fairly soon.  Time will tell, of course.  I would imagine the press coverage and BBC coverage (ironically) will have helped sales. I don’t recall *Mr X* winning any major Formula 1 titles…. but, no doubt, readers who watch motorsport on TV or at the track will advise me if *Mr X* was actually quite famous.


Legal note: at least Mr Justice Morgan had the humour to hold the trial in *secret* – despite the fact that a huge number of people now claim to have known who the The Stig was but kept *schtum* ..and some may even have had him in the back of their cabs wearing the full kit, as a guest at their hen party, to dinner at chi chi Notting Hill dinner parties blah blah blah…. !

Twitter bedlam: Bovvered? Nope!

Today I got very bored with the hate, venom, bile and complete and utter nonsense which I read on twitter about Blair, Hague etc etc etc…….

Tony Blair published his book today. I will enjoy reading his book.  Blair is not all about Iraq.   Cue a raft of unpleasantness – and then Iain Dale reports on The Hague / Myers issue. I enjoy the Libertarians I follow. I enjoy reading the views of MPs.   I am not responsible for their views.  They are not responsible for mine. I’ll happily read political blogs.  I don’t actually care what the political blogger thinks, even if I enjoy their ideas and writing. I make my own mind up – and I have always assumed others do as well? And I could not give a damn about daft buttons which reveal the blogger to be in the Top 10 of Political Bloggers – why do they care, let alone question the provenance of the award? Bizarre.

I will continue to enjoy the amusing/ the analytical / the plain daft and bizarre on twitter…  but, today, I found the twitter and blog hatred about Blair and other matters unpleasant.  I shall stick to parody and leave the venom to others… and if you don’t like what I say on this particular issue …. unfollow….don’t read my blog – but, please don’t waste time making clever remarks on Twitter – because I won’t be reading them tonight… I shall return to twitter when the *Perfectly Ludicrous Storm* has abated.